Opinion
G035487
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LAWRENCE VILLASENOR et al., Defendant and Appellant.
Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Michael Villasenor. Betty A. Haight, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Mark Villasenor. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan Beale and Jeffrey J. Koch, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Michael Villasenor (Michael) and Christopher Villasenor (Christopher) appeal from the judgment of conviction for possession of methamphetamine, possession of the same drug for sale, and firearm charges. They contend the trial court should have granted Michaels motion to suppress evidence (Pen. Code, § 1538.5) based on lack of probable cause to issue the search warrant and lack of compliance with knock-notice requirements. We affirm.
FACTS
In May 2003, someone broke into Jay Hertricks apartment and stole a rifle, three shotguns, and two paintball guns. Hertricks girlfriend, Denise Saad, had given Hertrick the guns to get them out of her house because one of her sons, Jason Farris, was on parole and had been living with her. Farris knew the guns were kept under Hertricks bed. Saads other son, Habib Joel Saad, told the authorities that Farris was the likely suspect because he "is a heavy methamphetamine user and often steals to get money and/or drugs."
Sheriffs investigator Brian Sims located Farris at the Orange County jail. Farris admitted to stealing the guns. He drove with the guns to Garden Grove, hoping to sell them to a "major drug dealer" called "Danny" from whom he had purchased methamphetamine in the past. Danny was unavailable, so Farris drove to Santa Ana to try to sell the guns to someone he knew as "Scrappy." Scrappy bought two of the guns for $250 and agreed to sell the remaining guns for $150 each. Farris had "seen a handgun in the top dresser drawer while visiting with [Scrappy] in the past."
Farris did not know Scrappys real name or his address, but he was able to show Sims where the residence was. He directed Sims to 5431 Wisteria Place in Santa Ana, telling Sims Scrappy lived there with his brother, "Mikey," and his parents. DMV records and Orange County arrest records revealed that 5431 Wisteria Place was the residence of Christopher Villasenor. Farris picked Christopher out of a photo line-up as the person he knew as Scrappy. During the interview with Farris, Sims learned that Christopher was an associate of the Tokers Town street gang, and had been convicted for "accessory to a street gang act" and "weapons violations including but not limited to an arrest in 1998 for attempted murder."
At the end of the interview, part of which was tape recorded, Sims asked Farris why he was giving information to the police, and Farris replied, "Im upset that I have ever been involved in dope. That Ive ever been involved with any kind of these people." He continued, "Im concerned about my safety. Im concerned about . . . staying clean, and — the rest of my life. A lot of stuff Im concerned about." Farris acknowledged he had asked Sims "for a little bit of help with my case" by telling his parole officer he wanted to attend a drug treatment program and stay out of prison. Sims assured Farris he would relay that request to the parole officer, but he could not make any promises. Farris replied, "I know, you guys cant make promises, and Im not — yeah, I know. [¶] . . . [¶] I took, and now this is kind of my way of giving back. You know?"
Sims sought a warrant to search Christophers residence for the stolen guns plus evidence of criminal street gang membership or affiliation based on his affidavit of probable cause. The affidavit related the facts Sims had learned during his interview with Farris, plus information from further investigation that Christopher had "claimed `Tokers Town" and was "possibly involved in an assault with a deadly weapon case." Furthermore, in 1999, Christopher was identified as a known gang member by the Santa Ana Police Department and admitted to being "jumped in" to "Tokers Town." Sims declared that Farris "understood that there have been no promises or threats made to him during our interview and was assisting us on his own will." Sims did not include Farriss request that Sims help his case by speaking to his parole officer.
The search warrant issued and was executed in the early morning hours of June 5, 2003 by Orange County Sheriffs deputies. A few days before, deputies had driven by the residence to "get a game plan of making an entry into it . . . ." They considered the search a high risk because their information indicated there were gang members and weapons at the residence. Accordingly, they staged paramedics about a block away and increased the line of deputies serving the warrant from eight to fourteen.
On the morning of June 5, the deputies approached the house from the garage side and noticed surveillance cameras. The first deputy in the line, Larry Zurborg, ordered the cameras disabled, and they continued toward the front door. Zurborg found the door ajar. As he pounded on it, it swung open. "[A]t that point [Zurborg] then announced we were the sheriffs department." Almost simultaneously, Zurborg saw a person 10 feet in front of him (who turned out to be the defendants father), "so I started yelling even louder identifying us as sheriffs department . . . ." He and the other deputies yelled two or three times, "`Search warrant, sheriffs department." The deputies crossed the threshold within three to five seconds of the first knock because "at that point we felt our mission was compromised by having that subject right there at the hallway when the door opened, and for officer safety factors we decided . . . to go in at that point."
The deputies found a gun, ammunition, methamphetamine and smoking paraphernalia in Christophers room; scales, baggies, methamphetamine and smoking paraphernalia, ammunition, video camera monitors, surveillance cameras, and a photograph of Christopher holding a gun in Michaels room; and Tokers Town gang memorabilia in both rooms.
Christopher was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)); both Christopher and Michael were charged with possession of methamphetamine for sale with a firearm enhancement (Health & Saf. Code, § 11378; Pen. Code, § 12022, subd. (a)) and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). The information alleged that Christopher had three prior "strikes," a prior prison term, and a prior serious felony conviction. (See Pen. Code, §§ 667, subd. (a), 667, subds. (d)-(i), 667.5, subd. (b).)
Christopher and Michael moved to quash the search warrant and suppress the evidence seized under Penal Code section 1538.5. They claimed the affidavit supporting the warrant was defective because it failed to disclose Farriss criminal history, which included at least 15 felony convictions, or his request for "a little bit of help on [his] case." They argued the omissions were made knowingly or with reckless disregard for the truth, and they were entitled to cross-examine Sims at an evidentiary hearing.
The court found the information should have been put into the affidavit to help the magistrate evaluate Farriss credibility. But it also found that even with the omitted information, there was still probable cause to search. The court pointed out that the affidavit referred to Farris as on parole and as a heavy methamphetamine user who often steals to support his drug habit.
The defendants also argued the evidence should have been suppressed because the deputies failed to comply with knock-notice requirements (Pen. Code, § 1531) when executing the search warrant. The defendants father testified he was awake and in the bathroom when the deputies entered. He claimed there was no announcement of their presence or a demand for entry; rather, they forced their way in. The defendants mother testified she had locked the door after the last occupant of the house came in around 12:30. But the court found "the police officers story makes much more sense than the Villasenors when I look at this evidence. [¶] I believe that the door was hit up. They announced their presence, and Mr. Villasenor was standing there."
DISCUSSION
Probable Cause to Issue the Search Warrant
Probable cause to search exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238.) The test of probable cause in an affidavit for a search warrant is "`whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1041.) The issuing magistrate need only make "`a practical, common-sense decision . . . given all the circumstances set forth in the affidavit before him, including the `veracity and `basis of knowledge of persons supplying hearsay information . . . ." (Illinois v. Gates, supra, 462 U.S. at p. 238.) When we review the magistrates determination, we defer to his finding of probable cause unless the warrant is invalid as a matter of law. (Id. at p. 236.)
Defendants claim there was insufficient evidence for probable cause because Farris was a criminal informant and his statements were unreliable and uncorroborated. "[T]he credibility of an informant who swims in the sea of crime and gives `tips to the police is suspect. Unlike the citizen informant motivated by virtue who openly gives information to the police, the criminal informant, as the courts generally understate it, is `generally motivated by something other than good citizenship." (People v. Schmidt (1980) 102 Cal.App.3d 172, 178.) However, when criminal informants make statements against their penal interests, the statements carry "indicia of reliability." (U.S. v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1398.)
Here, Farris gave a detailed, factual account of his delivery of the stolen guns to Christopher. If discovered, the stolen guns most certainly would be used as evidence against Farris. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, fn.7.) "[T]he concept of statements against penal interest should not be interpreted narrowly and grudgingly, but should be applied consistently with the underlying concern of determining the reliability of tips from informants. [Citation.] That the informant may be paid or promised a `break does not eliminate the residual risk and opprobrium of having admitted criminal conduct." (People v. Terrones (1989) 212 Cal.App.3d 139, 149.)
Sims independently verified that Christophers identity and residence matched Farriss story. More importantly, however, Simss independent investigation revealed that Christopher had been convicted of weapons charges in the past and was affiliated with a gang. Sims was an experienced law enforcement officer who had participated in "excess of 500 criminal investigations . . . ."; based on this experience, he believed that "[c]riminal street gang members pass weapons and ammunition from gang member to gang member, especially when the weapon has been used in some type of crime." This information corroborated Farriss account of his disposal of the stolen guns, supporting a suspicion that Christopher had possession of them. "For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citation.] . . . However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. [Citation.]" (People v. Johnson (1990) 220 Cal.App.3d 742, 749.) A suspects arrest record is relevant to a determination of probable cause. (People v. Kershaw (1983) 147 Cal.App.3d 750, 760.)
The defendants claim even if the affidavit provided probable cause on its face, the evidence must be suppressed because Sims omitted Ferriss extensive criminal record and his request for help on his case, presumably in exchange for providing information. They contend these were material facts important to a determination of Ferriss credibility and would have negated probable cause had they been included. They further contend they made a substantial showing that the omissions were intentional or made with reckless disregard for the truth, thus entitling them to an evidentiary hearing to test Sims veracity. (See Franks v. Delaware (1978) 438 U.S. 154.)
"To obtain a Franks postsearch evidentiary hearing on whether there has been official misconduct in drafting the affidavit, the defendant must make `a "substantial preliminary showing that (1) the affiant has made statements which were deliberately false or in reckless disregard of the truth and (2) the affidavits remaining content after [its] false statements are excised is insufficient to justify a finding of probable cause. [Citation.]" [Citation.]" (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316.) Where material omissions are alleged, the affidavit must be judged with the addition of the omitted facts. (People v. Gibson (2001) 90 Cal.App.4th 371, 381-382.)
The defendants failed to reach the second step in the process. The trial court found the omissions in the affidavit were material and should have been included. "[T]hat is probably something I would have been interested in to know in a search warrant. [¶] When I relook at this with that statement in there and what it does is it . . . goes to the credibility of Mr. Farris and how much the magistrate knew as to Mr. Farriss credibility." The court made no finding with regard to Simss intent when omitting the facts; rather, it found the addition of the facts did not negate probable cause. "But when I read the attachment . . . , it says, `Jason Farris is on parole and living with his mother; cant have any guns at home. And then . . . , `I spoke to Jasons brother. He believes Jason may have entered Jays home and stole the gun. He told me Jason is a heavy methamphetamine user and often steals to get money and/or drugs. . . . [¶] [B]ased upon the content of the affidavit as well as the attachment, I think the magistrate had a pretty good idea of who Mr. Farris was, and I dont think it changes the probable cause in this."
We will disturb the lower courts determination of probable cause only if the affidavit (here, with the additions) "fails as a matter of law" to support it. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) We cannot say as a matter of law that the revised affidavit does not support a "fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, supra, 462 U.S. at p. 238.)
Knock-Notice
The defendants argue the evidence must be suppressed because the deputies entered their residence without waiting a reasonable time for the occupants to refuse or grant admittance. "As a general rule, before entering a house to make an arrest or perform a search, officers must first identify themselves, explain their purpose, and demand admittance. [Citations.] The purpose of this so-called knock-notice rule is (1) to protect the privacy of the householder; (2) to safeguard innocent persons on the premises; (3) to prevent violent confrontations arising from unannounced entries; and (4) to protect the police themselves from injuries caused by a surprised or fearful householder. [Citation.] The rule applies to entries through unlocked doors as well as `break-in entries achieved by force. [Citation.]" (People v. Murphy (2005) 37 Cal.4th 490, 495-496; see also Pen. Code, § 1531.)
According to the facts found by the trial court, the deputies knocked on the front door; because the door was ajar, the knock caused it to swing open. They announced their purpose and simultaneously saw the defendants father standing about 10 feet in front of them. After waiting about "3 to 5 seconds," during which time they continued to loudly announce their purpose, they entered the house. This was not enough time to support an implied refusal of admittance or to allow an explicit one. (People v. Neer (1986) 177 Cal.App.3d 991, 996.)
But strict compliance with the knock-notice rule is excused if the facts permit the officer to have "a good faith belief compliance will increase his or her peril, frustrate the arrest, or permit the destruction of evidence." (See People v. Neer, supra, 177 Cal.App.3d at p. 995.) The warrant contemplated a suspect who had weapons in his possession and had previously used them for criminal purposes. Furthermore, the suspect was an established street gang member, with a known propensity for violence. The deputies considered this a "high-risk" search, as evidenced by their increased number and the staging of the paramedics close by. Furthermore, the discovery of surveillance cameras could have increased their suspicion that their entry would be resisted. Under all the circumstances of this case, the entry after a few seconds was justified.
DISPOSITION
The judgments are affirmed.
We Concur:
ARONSON, J.
FYBEL, J. --------------- Notes: Defendants assert that Sims said Farris told him about Scrappys gang activity. Neither the interview tape, Simss report, or the affidavit support the assertion. Sims merely stated he and others "learned about" the gang activity while interviewing Farris.