Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR033816B Joseph A. Soldani, Judge.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Franson, J.
After denial of his pretrial motion to quash a search warrant and suppress the fruits of the search, appellant Dodd Mitchell Verner pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and received three years’ probation. On appeal, appellant contends the affidavit supporting the search warrant failed to establish probable cause. Specifically, he claims the affidavit relied on stale information and information provided by untested and unreliable informants. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On December 9, 2008, Officer Richard Hunter obtained a narcotics search warrant for the Verner residence and the person of Todd Verner (Todd), appellant's brother. Both Todd and appellant resided in the same house. Police officers discovered 25 unprescribed hydrocodone pills in Todd's bedroom, and a small amount of methamphetamine and marijuana in appellant's bedroom.
The search warrant affidavit prepared by Officer Hunter recited Officer Hunter's narcotics training and experience. The affidavit then set forth the information gathered in Officer Hunter's investigation, describing an anonymous letter sent to the police department, Officer Hunter's observation of the Verner residence and subsequent interactions with confidential informants, and Todd's criminal history. Based on this information, Officer Hunter believed several felony drug violations were being committed and believed evidence relating to those violations would be found during a search of the Verner residence.
Officer Hunter and other officers executed the search warrant shortly after the magistrate judge signed it. In the course of the search, appellant was directed to remain on the couch in the living room, wearing a towel, or possibly less, having just come out of the bathroom from a shower. Appellant, in response to Sergeant Jeffrey Palmer's inquiry, told the police they would find small amounts of methamphetamine and marijuana near his bed, which officers did.
Appellant filed a motion to suppress evidence obtained in the search, which he asserted exceeded the scope of the warrant. The trial court denied appellant's motion at the preliminary hearing. Appellant then filed a motion to quash the search warrant, renewed his motion to suppress evidence pursuant to Penal Code section 1538.5, and filed a motion to dismiss pursuant to Penal Code section 995. The trial court denied each motion.
DISCUSSION
"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft).) We use our independent judgment to analyze the totality of the circumstances, (People v. Camarella (1991) 54 Cal.3d 592, 601-602; Illinois v. Gates (1983) 462 U.S. 213, 238-239 (Gates)), giving deference to the magistrate judge's practical, commonsense decision that probable cause existed. (Kraft, supra, at pp. 1040-1041.) Only the probability, and not a prima facie showing, of criminal activity is necessary to establish probable cause. (Gates, supra, at p. 235.)
The search warrant was supported here by three primary pieces of information, which we address in turn: 1) an anonymous letter sent to the police approximately three months before appellant's arrest; 2) information provided by confidential informants, supplied when the informants were arrested shortly after visiting the Verner residence; and 3) Todd's prior criminal record. In addition, Officer Hunter supplied his opinion as to possible criminal activity and evidence thereof that he believed would be found pursuant to execution of the search warrant, an opinion which was based on his experience with over 100 narcotics cases and several years as a peace officer. We find, given the totality of the circumstances, probable cause existed sufficient to support the magistrate judge's issuance of the search warrant and the trial court properly denied the motion to quash the warrant.
1. The Anonymous Letter
Appellant contends the anonymous letter provides insufficient basis for the search warrant because it is stale, unreliable, and insufficiently corroborated by independent police investigation. We disagree.
The staleness of information is a fact-dependent analysis. (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) Information even years old may still merit consideration where special circumstances justify a person of ordinary prudence to conclude that the alleged illegal activity had persisted from the time of the stale information to the present. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718 (Mikesell).) Furthermore, independent police investigation into a defendant's criminal activity along the lines suggested by the informant can cure the presumed unreliability accompanying information provided by a non-citizen anonymous source. (See People v. Kershaw (1983) 147 Cal.App.3d 750, 755, 759 (Kershaw); People v. Gotfried (2003) 107 Cal.App.4th 254, 264 (Gotfried).)
The police received an anonymous letter approximately three months prior to execution of the search warrant. The letter asserted members of the Verner household engaged in drug dealing, specifically to minors, and that George Verner (appellant's father) performed lewd and lascivious acts on girls in exchange for drugs and money. The letter implicates the "whole family" in "selling drugs" and specifically notes that "Randy, Todd and Dodd Verner buy their speed and marijuana from Alfred…in Fairmead." The letter also indicated the drug sales were an ongoing, long-term operation in the Verner residence.
Officer Hunter independently investigated activity at the Verner residence, observing during a routine patrol that a person approached the residence, but stayed only a few minutes. This person later became a confidential informant (hereinafter CI-1) in this matter, as discussed further below. CI-1 alleged he had purchased methamphetamine from Todd, thus corroborating the letter's accusation of ongoing drug dealing. Officer Hunter's investigation pertained to the Verners' general criminal activity described in the letter, and was not just a corroboration of "'"pedestrian facts."'" (Gotfried, supra, 107 Cal.App.4th at p. 264.) Thus, Officer Hunter's investigation resulting in CI-1's statement corroborated the letter's essential accusation of criminal activity - that the Verners sold drugs. (See People v. Costello (1988) 204 Cal.App.3d 431, 448 (Costello).) A person of ordinary prudence could have concluded the alleged illegal activity of drug dealing had persisted from the time of the letter's mailing to the present. (Mikesell, supra, 46 Cal.App.4th at p. 1718.) The anonymous letter had corroborative value in the totality of circumstances. (See Costello, supra, at pp. 447-448.)
2. The Confidential Informants
Appellant also asserts the information provided by the confidential informants insufficiently supports a probable cause determination because the informants were untested, under criminal investigation, and were attempting to shift blame for their illegal activity by implicating Todd. He contends the police failed to corroborate the informants' statements and therefore the statements are unreliable and fail to provide sufficient support for a probable cause finding. He also argues the information they provided was not a statement against penal interest that would advance the information's credibility because they provided no more information than what the police already knew. We disagree.
Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. (Costello, supra, 204 Cal.App.3d. at p. 446.) Information from an untested informant will not establish probable cause unless corroborated in essential respects by other facts, sources or circumstances. (Id. at p. 446.) However, information provided by an untested informant may justify greater consideration where the information provides a detailed description based on personal, firsthand knowledge of the alleged criminal activity. (Kershaw, supra, 147 Cal.App.3d at pp. 758-759; People v. Rochen (1988) 203 Cal.App.3d 684, 688.)
Officer Hunter described in his affidavit his observation of the Verner residence during a routine patrol earlier on December 9, 2008. He noticed a truck pull up in front of the house. The truck was driven by CI-1, and also had a female passenger who also became a confidential informant (hereinafter CI-2). Officer Hunter observed CI-1 approach the house, and later observed the truck drive away from the house after only a short period of time. After observing the truck leave the Verner residence, Officer Hunter pulled it over after observing it fail to make a complete stop at a stop sign. Officer Hunter believed CI-1 to be under the influence of a controlled substance, and arrested him. In the course of a search of the vehicle incident to arrest, Officer Hunter found methamphetamine in a plastic bag in the door handle.
Officer Hunter further described in his affidavit his interview with CI-1 at the police station. CI-1 told him he had set up a drug purchase at the Verner residence over the phone, then went to the Verner residence and bought the methamphetamine from Todd. CI-1 stated he stood in the front living room while Todd went to his bedroom and observed Todd retrieve the methamphetamine from a pill bottle next to his bed. CI-1 paid $20 for the drugs and then left. Officer Hunter also talked to CI-2 at the station, relaying to her what CI-1 had stated. CI-2 confirmed that CI-1 had gone to the Verner residence to purchase methamphetamine.
CI-1 provided a detailed statement based on firsthand knowledge of Todd's drug sale. His statement was also a statement against penal interest, which was a further indication of its veracity. (People v. Terrones (1989) 212 Cal.App.3d 139, 149.) Contrary to appellant's assertion, CI-1's statement revealed to the police information beyond the general premise that the Verners sold narcotics. CI-1 informed Officer Hunter that Todd kept narcotics in his bedroom, in a pill bottle. This was similar to appellant's possession of marijuana; during the subsequent search of the premises, the police found a pill bottle with marijuana in it in appellant's bedroom. Officer Hunter never told the confidential informants they would receive favorable treatment for revealing information about the Verners. As statements against penal interest, the magistrate judge could accord the confidential informants' statements greater consideration as to their reliability. (Ibid.) Furthermore, the informants' identities were known to Officer Hunter, and therefore the informants exposed themselves to potential liability for falsely reporting a crime, further indicating veracity. (See Kershaw, supra, 147 Cal.App.3d at p. 756.)
CI-1's statement as to drug sales taking place in the Verner residence was further corroborated by the anonymous letter, which indicated the continuing nature of the Verners' criminal drug activity. Todd's criminal history also supported the confidential informants' assertions, in that Todd had prior drug convictions. The confidential informants, although untested, made statements that were sufficiently supported by corroborating evidence and firsthand knowledge to be properly considered by the magistrate judge in determining the existence of probable cause to support the search warrant.
3. Todd's Criminal History
"A suspect's narcotics arrest record is relevant to the magistrate's determination of probable cause. [Citation.]" (Kershaw, supra, 147 Cal.App.3d at p. 760.) The Kershaw court upheld a magistrate judge's determination of probable cause for a search warrant where the affidavit relied on an anonymous informant's detailed statement, detailed activities observed at the defendant's home that indicated drug trafficking, and the defendant's arrest record. (Id. at p. 752.)
Here, in addition to the anonymous letter and the statements of the confidential informants taken shortly after they engaged in a drug sale at the Verner residence, Officer Hunter relied on results of a search for Todd Verner's prior criminal record, which indicated he had a prior arrest for transportation of methamphetamine in 2005 (Health & Saf. Code, § 11379), and possession of a controlled substance in 2006. (Health & Saf. Code, § 11377.)
Taken all together, the circumstances support the magistrate judge's determination probable cause existed to support a search warrant.
DISPOSITION
The judgment is affirmed.