THE PEOPLE, Plaintiff and Respondent, v. REECE JOHN CLARK, Defendant and Appellant.
No. B253036
Second Dist., Div. Five.
Oct. 9, 2014.
230 Cal. App. 4th 490
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Mary Sanchez and Garett A. Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.—
INTRODUCTION
Defendant and appellant Reece John Clark (defendant) pleaded guilty to possession of cocaine and a short-barreled shotgun. On appeal, defendant contends that the trial court erred when it denied his motion to suppress evidence pursuant to
We hold that, even though there was no showing on the issue of whether the marijuana was possessed or cultivated for medical use, the affidavit in support of the search warrant established probable cause to search. Therefore, the trial court did not err in denying the suppression motion. Accordingly, we affirm the judgment of conviction.
FACTUAL BACKGROUND2
The statement of probable cause in support of the search warrant provided the following facts. Los Angeles County Sheriff‘s Department Deputy
Based on the information provided by the informant, Deputy Gaisford initiated a narcotics investigation at the Pasadena address provided by the informant. The deputy and a detective conducted a surveillance of that residence and observed two vehicles parked there that, according to the informant, defendant owned. They then saw defendant exit the front door of the residence, access one of the vehicles, and reenter the residence.
During their surveillance, the deputy and the detective observed the following facts that were “indicative of an illegal indoor marijuana grow“: From the public sidewalk, they could smell a strong odor of “unburnt” marijuana emitting from the garage; according to Deputy Gaisford, “unburnt” marijuana had a “very distinct and pungent” odor that could easily be recognized by both law enforcement and members of the public; Deputy Gaisford also observed a “window mount” air conditioner installed in one of the walls in the garage; although it was a cold winter night when they conducted their surveillance, the air conditioner was running continuously, which appeared unusual because, in the deputy‘s experience, most garages were “under insulated” and usually the coldest part of the house; based on the deputy‘s training and experience concerning marijuana cultivation, specifically indoor “marijuana grows,” he knew that an indoor marijuana grow room needed a dedicated air conditioner of some sort to cool the room down because the “grow lights” generated an “enormous amount” of heat; because the heat and other by-products from the indoor grow needed to be vented out of the room, it was common for illegal marijuana cultivators to vent the room and turn on the grow lights and air conditioners during night and early morning hours to avoid detection by law enforcement.
In addition to conducting the surveillance, Deputy Gaisford conducted a criminal background check on defendant and discovered that he had been convicted of various criminal offenses. He also conducted a registration check on the two vehicles he observed at the property, and both were registered to defendant at the address of the property.
Based on these facts, Deputy Gaisford formed the opinion that the location was being used to grow, store, and sell marijuana on an ongoing basis. He
The return to the search warrant contained additional information. Deputy Gaisford conducted a search of the property a day after the search warrant was issued. During the search, the deputy seized 246 marijuana plants, several bags of harvested marijuana, cocaine, a 12-gauge pump-action shotgun with 25 rounds, a .25-caliber semiautomatic pistol with live rounds, digital scales, drug packaging, paperwork, mail, a cell phone, and an assortment of marijuana grow equipment, including grow lights, light ballasts, a carbon dioxide generator, atmosphere controllers, charcoal air filters, blowers, a water filtration system, and water-based plant nutrients and plant food.
PROCEDURAL BACKGROUND
In July 2011, prior to the preliminary hearing, defendant filed a motion to traverse the search warrant and suppress evidence pursuant to section 1538.5 on the ground that the search warrant was issued without probable cause. In October 2011, a magistrate heard and denied the motion.
In November 2011, the trial court conducted a preliminary hearing and ordered that defendant be held to answer. In December 2011, the district attorney filed the original information.
In June 2012, prior to arraignment, defendant renewed his motion to suppress. In September 2012, the trial court heard and denied that second motion.
In March 2013, defendant filed another motion to suppress pursuant to section 1538.5, which motion is the subject of this appeal. The motion was based on the newly asserted ground that there was no probable cause to support the search warrant because defendant‘s cultivation of marijuana was legal under the Compassionate Use Act of 1996—
Defendant thereafter pleaded guilty to one count of possession of cocaine in violation of
DISCUSSION
A. Standard of Review and Applicable Legal Principles
The California Supreme Court recently summarized the standard of review governing a ruling on a motion to suppress evidence based on a search. ” ‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court‘s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ [Citation.] On appeal we consider the correctness of the trial court‘s ruling itself, not the correctness of the trial court‘s reasons for reaching its decision. [Citations.]’ (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 [112 Cal.Rptr.3d 746, 235 P.3d 62] ....)” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365 [178 Cal.Rptr.3d 185, 334 P.3d 573].)
The California Supreme Court has also explained that “[i]n reviewing a search conducted pursuant to a warrant, an appellate court inquires ‘whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.’ (People v. Kraft (2000) 23 Cal.4th 978, 1040 [99 Cal.Rptr.2d 1, 5 P.3d 68], citing Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 103 S.Ct. 2317].)” (People v. Carrington (2009) 47 Cal.4th 145, 161 [97 Cal.Rptr.3d 117, 211 P.3d 617].) The court amplified, ” ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is 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.) The magistrate‘s determination of probable cause is entitled to deferential review. (People v. Kraft, supra, 23 Cal.4th at p. 1041, citing Illinois v. Gates, supra, 462 U.S. at p. 236.) Probable cause sufficient for issuance of a warrant requires a showing that makes it “substantially probable that there is specific property lawfully subject to seizure presently located in the particular place
As stated in People v. Frank, supra, 38 Cal.3d at page 744, “The affidavit must set forth more than the ’ “mere conclusion” ’ of the affiant that the items sought are located on the premises to be searched. (Aguilar v. Texas (1964) 378 U.S. 108, 113 [12 L.Ed.2d 723, 728, 84 S.Ct. 1509], overruled on other grounds Illinois v. Gates[, supra,] 462 U.S. [at p.] 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317].) The affidavit must present the magistrate with facts indicating the circumstances underlying the affiant‘s belief in order that the magistrate may judge their persuasiveness for himself. (Ibid.; Giordenello v. United States (1958) 357 U.S. 480, 486 [2 L.Ed.2d 1503, 1509, 78 S.Ct. 1245]; Nathanson v. United States (1933) 290 U.S. 41, 47 [78 L.Ed. 159, 161, 54 S.Ct. 11].)”
B. Analysis
Defendant contends that although the affidavit in support of the search warrant may have established that he was cultivating marijuana, it did not show that he was doing so illegally. According to defendant, to justify the search warrant, Deputy Gaisford was required to include facts in his affidavit showing that defendant‘s conduct in cultivating marijuana was not in conformance with the Compassionate Use Act of 19963 and the Medical Marijuana Program Act.4 Defendant bases this contention on the Supreme Court‘s decision in People v. Mower (2002) 28 Cal.4th 457 [122 Cal.Rptr.2d 326, 49 P.3d 1067] (Mower), which, defendant argues, requires an affirmative factual showing in support of a search warrant that a defendant‘s cultivation of marijuana is not in compliance with the Compassionate Use Act of 1996.
In Mower, supra, 28 Cal.4th 457, the defendant was charged with possession and cultivation of marijuana in violation of
In response to the defendant‘s contention, the Supreme Court framed the issue before it as follows: “The initial question that we address in this case is whether [Health and Safety Code] section 11362.5[, subdivision] (d) grants a defendant ‘complete’ immunity from prosecution, an immunity that assertedly would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant‘s status as a qualified patient or primary caregiver prior to his or her arrest.” (Mower, supra, 28 Cal.4th at p. 467.)
The court in Mower, supra, 28 Cal.4th 457 concluded that
The holding in Mower, supra, 28 Cal.4th 457 on the immunity from arrest issue does not state or imply that law enforcement officers seeking a search warrant have an affirmative duty to investigate a suspect‘s status as a qualified patient or primary caregiver under the Compassionate Use Act of 1996 prior to requesting that a warrant issue. To the contrary, Mower makes clear that although the Compassionate Use Act of 1996 provides a defense at trial or a basis to move to set aside the indictment or information prior to trial, it does not shield a person suspected of possessing or cultivating marijuana from an investigation or arrest. Therefore, given the holding in Mower, that act cannot be interpreted to impose an affirmative duty on law
Our conclusion in this regard is supported by the decision in People v. Fisher (2002) 96 Cal.App.4th 1147 [117 Cal.Rptr.2d 838] (Fisher). In that case, a law enforcement officer participated in a “flyover” of the defendant‘s property and observed at least three marijuana plants behind the defendant‘s home. (Id. at p. 1149.) Based on that observation, a search warrant for the defendant‘s residence issued. (Ibid.) But before officers could execute the warrant, the defendant showed them a ” ‘certificate’ ” purporting to be a physician‘s permission to possess marijuana for medical use in accordance with
Defendant filed a motion to suppress pursuant to section 1538.5 on the ground that, once they were shown the certificate, the officers no longer had probable cause to search. (Fisher, supra, 96 Cal.App.4th at p. 1150.) The trial court denied the motion. Defendant was subsequently convicted on the charges unrelated to the possession of marijuana. (Ibid.)
On appeal, the defendant contended that once he showed the officers the certificate, they had a duty to secure the premises without searching it and to conduct a further investigation into his medical marijuana defense. (Fisher, supra, 96 Cal.App.4th at p. 1151.) In rejecting the defendant‘s argument, the court in Fisher reasoned: ” ‘It is well established that where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. [Citations.] ... “[T]he question is whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition, or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. It is the nature of the exception and not its location which determines the question....” ’ Thus, where exceptions or provisos are not descriptive of the offense, or define it, but rather afford a matter of excuse, ‘they are to be relied on in [the] defense.’ [Citations.]” ’ (People v. Spry (1997) 58 Cal.App.4th 1345, 1364 [68 Cal.Rptr.2d 691].) [¶] Nowhere in [Health and Safety Code] section 11362.5 is any criminal offense defined. Subdivision (d) of [Health and Safety
The court in Fisher, supra, 96 Cal.App.4th 1147 therefore concluded that the “[d]efendant‘s claim to the officers that he had a certificate that allowed him to legally possess marijuana for medicinal purposes asserted an affirmative defense. Investigation of the truth and legal effect of defenses to criminal charges is what motions and trials are for; to hold otherwise would create disorder and confusion. The defendant‘s argument has no merit.” (Id. at p. 1152.)
Here, unlike in Fisher, supra, 96 Cal.App.4th 1147, Deputy Gaisford had no information concerning defendant‘s status as a qualified patient or primary caregiver under either the Compassionate Use Act of 1996 or the Medical Marijuana Program Act. Thus, the conclusion in Fisher—that investigating officers have no duty when obtaining and executing a search warrant to investigate a suspect‘s status as a patient or caregiver under the Compassionate Use Act of 1996—applies with even more compelling force in this case because Deputy Gaisford had no factual basis upon which to conclude that defendant may have had an affirmative defense to what were otherwise the criminal offenses of possessing and cultivating marijuana and had no independent duty to conduct an investigation into such a defense. Therefore, based on the facts set forth in the search warrant affidavit, including the fact that Deputy Gaisford detected a strong odor of “unburnt” marijuana emanating from defendant‘s garage and that defendant was operating the air conditioner at night to avoid detection by police, the search warrant in issue was based on probable cause and the suppression motion was properly denied. (See State v. Davis (Wn.App. 2014) 331 P.3d 115, 119 [medical use affirmative defense does not invalidate probable cause]; State v. Senna (2013) 194 Vt. 283 [79 A.3d 45, 50-51] [trial court properly considered the odor of fresh marijuana emanating from the defendant‘s home in assessing probable cause to search, even if a medical marijuana exemption could be invoked as a defense]; State v. Fry (2010) 168 Wn.2d 1 [228 P.3d 1, 7, fn. 3] [when an officer trained and experienced in marijuana detection actually detects the odor of marijuana, that provides sufficient evidence to constitute probable cause to search even if defendant had medical documentation purporting to authorize his use].)
The judgment of conviction is affirmed.
Turner, P. J., and Kriegler, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied December 17, 2014, S222522.