Opinion
A search warrant affidavit contains information from three informants, none of whom are reliable. Each informant states two named
BACKGROUND
In March 2010, Eureka Police Officer Gary Cooper sought a warrant to search the persons of Robert Samuel French (defendant) and Maria Camacho, a house on Summer Street in Eureka where defendant and Camacho resided, and a black pickup truck owned by defendant.
Cooper’s affidavit in support of the application for a search warrant stated in relevant part:
“In the latter part of 2009 I arrested a subject and took him to jail. While enroute [to] the jail I asked the subject who he knew that was dealing drugs in Eureka. The subject told me of a person named Robert who lived on the comer of Harris and Summer. I asked the subject how he knew Robert was selling drags. The subject told me his wife bought her heroin from Robert. I was driving on Broadway going towards the jail. I drove up Harris Street and asked the subject to point the house out to me as we drove past. As we drove past the subject pointed to the residence on the south east comer of Harris and Summer Streets. The subject also said Robert drove the black colored track that was parked in front of the residence on Summer Street.
“After dropping the subject off at the jail I drove back to the residence on the comer of Harris and Summer Street. The black track was still parked in front of the residence on the [S]ummer street side. I ran a registration check on the vehicle. The return information from dispatch showed the vehicle was registered to Robert French with an address of 3105 Summer Street.
“On 02-10-10 Officer J. Braud and I were talking to a person who here in will be referred to as confidential reliable informant one. (CRI-1). I was talking to CRI-1 about people in Eureka who sold drags, specifically heroin or meth. CRI-1 told us a woman named Maria and her boyfriend Robert who were selling heroin. I asked CRI-1 where Maria and Robert lived. CRI-1 said they lived on the comer of Harris and Summer Street. I asked CRI-1 if Robert or Maria drove any cars. CRI-1 said [he/she] only knew of a black
colored full size truck Robert drove. I asked CRI-1 if [he/she] knew the last names of Maria and Robert. CRI-1 said he/she knew Maria’s last name was Camacho. [He/she] said he/she didn’t know Robert’s last name. I asked CRI-1 where Camacho keeps her drugs she sells. [He/she] said she keeps it in the front of her pants so if she gets stopped by a male police officer he won’t search the front of her pants. CRI-1 said she also keeps it in a back pack she keeps with her.
“I asked CRI-1 if Robert was also selling. CRI-1 said Robert does sell meth and heroin, but not as much as Maria.
“On 02-24-10 I talked with a person who here in will be referred to as CRI-2. CRI-2 has given information to law enforcement in the past. The information was corroborated and criminal cases were made behind the information.
“I asked CRI-2 who [he/she] knew that was selling drugs. CRI-2 told me of a woman named Maria Camacho who lived on the comer of Harris and Summer Street. CRI-2 said Camacho deals heroin and meth out of her house with her boyfriend. I asked CRI-2 if [he/she] knew the name of Camacho’s boyfriend and if he was selling meth and heroin also. CRI-2 said he/she only knew the boyfriend’s first name as Ron and Ron was also selling meth and heroin out of the house.
“I asked CRI-2 if [he/she] knew of any vehicles Camacho and Ron might drive. CRI-2 said Ron drives a black track and Camacho drives a big red sedan.
“I believe based on the previous information I have regarding Robert French that Ron is actually Robert. This is based on the registered owner information on the black track and other people telling me there is a Robert living at the residence.
“I ran a criminal history check on Camacho through dispatch. The return information showed she has multiple arrests and convictions for possession of controlled substance for sale, and transportation of controlled substance.
“I have talked with CRI-2 on and off for the last two weeks, CRI-2 told me both Robert and Maria are still dealing out of their house on Harris and Summer Street. I asked CRI-2 how [he/she] knew this. He/she said [he/she] has been to their house recently and has seen people who came to the house. CRI-2 saw Robert and Maria take them in another room. The people left a short time later. CRI-2 believed the people who came to [the] house were buying drags from Robert and Maria.”
In April 2010, the Humboldt County District Attorney filed an amended complaint charging defendant with various narcotics offenses. Defendant moved to suppress all the evidence seized pursuant to the search warrant. Following a joint preliminary hearing and suppression hearing, the motion to suppress was denied on the basis that there was probable cause for issuance of the warrant and, if not, the good faith exception applied. An information was filed charging defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 2); transportation of psilocybin mushrooms (Health & Saf. Code, § 11379, subd. (a)) (count 3); and allowing a place to be used for preparing or storing methamphetamine (Health & Saf. Code, § 11366.5, subd. (a)) (count 4), with an enhancement for being armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
The trial court granted defendant’s Penal Code section 995 motion to dismiss count 4. The court denied defendant’s Penal Code section 1538.5, subdivision (i) renewed motion to suppress the evidence obtained pursuant to the search warrant, reasoning that “[ejach informant, the untested first informant, and each confidential reliable informant (CRI) independently corroborate one another, establishing probable cause to search.”
Defendant pleaded guilty to count 3 and the remaining counts were dismissed. Imposition of sentence was suspended, and defendant was placed on three years’ probation with various conditions, including that he serve 120 days in jail. This appeal followed.
DISCUSSION
I. Cooper’s Affidavit Failed to Establish Probable Cause
A. The Legal Framework
The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or
“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.] ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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.’ [Citation.]” (People v. Kraft (2000)
The People present alternate arguments in support of the affidavit’s sufficiency. First, they argue one or more of the three informants provided information that satisfied Gates. Second, they contend that even if this is not so, the information was corroborated by the police officer-affiant and by interlocking details in the informants’ assertions, justifying issuance of the warrant. We disagree.
B. Under Gates, None of the Informants Provided Reliable Information
In the present case, the warrant affidavit fails to provide a basis for according much weight to any of the informants’ statements based on the criteria outlined in Gates. There is little support for a conclusion that any of
Regarding the arrestee informant, the affidavit states nothing about his reliability, and the informant’s knowledge rests on hearsay, not personal observation. “Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.” (Campa, supra,
Confidential reliable informant one (CRI-1) is described as a “confidential reliable informant,” but that simple assertion is inadequate to establish reliability because the affidavit contains no facts in support. (See People v. Kurland (1980)
Regarding the reliability of CRI-2 (confidential reliable informant two), the affidavit simply states in general terms that information given by CRI-2 in the past “was corroborated and criminal cases were made behind the information.” Without any indication of how often CRI-2’s past information was corroborated or how recently it was provided, CRI-2’s status as a reliable informant is not established. (See Gates, supra,
The assertions of criminality by both CRI-1 and CRI-2 are merely conclusory, and conclusory statements are insufficient to support a warrant. (See People v. Ramey (1976)
The affidavit in the present case was only a little more detailed than the “bare bones” affidavits in Nathanson and Aguilar, deemed inadequate by Gates. Cooper did not merely assert his conclusion that defendant and Camacho are drug dealers, but effectively he did no more than repeat conclusory assertions to that effect by CRI-1 and CRI-2. The affidavit
The People repeatedly contend that CRI-2 witnessed “heavy foot traffic,” but the affidavit does not support that contention. The affidavit does not indicate how many people CRI-2 observed or whether CRI-2 witnessed people being taken to another room more than once. (Cf. People v. Kershaw (1983)
C. Corroboration Provided by Affiant and by Interlocking Details of the Informants’ Statements Fails to Establish Probable Cause Under Gates
1. Police Corroboration
The People argue that Cooper’s corroboration of the informants provides the probable cause necessary for the warrant. “Our decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” (Gates, supra,
In the present case, the police investigation primarily corroborated the “pedestrian facts” provided by the informants regarding defendant’s residence and vehicle. Absent corroboration of more probative facts, there was no basis to conclude that the informants’ assertions of drug dealing by defendant were reliable. (Cf. Gates, supra, 462 U.S. at pp. 244-245 [corroboration by police of specific details provided by informant regarding defendant’s travel plans— “future actions of third parties ordinarily not easily predicted”—provided a basis to conclude that the informant’s other assertions would be true]; People v. Costello (1988)
The People assert that obtaining the records of Camacho’s previous narcotics-related arrests and convictions provided sufficient corroboration of the informants’ reports. Though we recognize the corroborative value of recent and relevant narcotics arrests and/or convictions (see Kershaw, supra,
2. The Interlocking Details
The trial court upheld the warrant on the basis that each informant independently corroborated the others, providing probable cause. The People assert that the informants’ interlocking statements corroborated each other and cite the language in People v. Sheridan (1969)
Gates suggests, and the cases cited in the previous paragraph confirm, that in appropriate circumstances information obtained from unreliable informants may corroborate information obtained from other unreliable informants. But it would be illogical to conclude multiple unreliable informants,
The decision in Bailey, supra,
Consistent with Gates' s rejection of the rigid “two-pronged” approach, a magistrate may consider informants’ statements such as those involved in this case, despite their unreliability, conclusory nature, lack of personal observation, and/or the absence of a specified basis of knowledge. For example, had the police or other untested informants corroborated significant details about defendant’s activities, the informants’ statements could properly be weighed in the totality of the circumstances, and the corroboration might have been enough to establish probable cause. But, absent any such corroboration, probable cause cannot be found by adding together the undetailed, hearsay, and unreliable assertions of the arrestee informant and the unreliable and conclusory assertions of CRI-1 and CRI-2. Even considered together, the
II. Good Faith Exception Is Applicable
Having concluded that the search warrant was unsupported by probable cause, we address whether the denial of defendant’s motion to suppress should be affirmed under the good faith exception to the exclusionary rule. Defendant contends the good faith exception is inapplicable because the affidavit in support of the search warrant was so lacking that Cooper could not have reasonably believed it was sufficient. We disagree.
“Evidence obtained by police officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate is ordinarily not excluded under the Fourth Amendment, even if a reviewing court ultimately determines the warrant is not supported by probable cause. [Citation.] This is commonly referred to as the good faith exception to the exclusionary rule. However, the good faith exception to the exclusionary rule is inapplicable if ‘the affidavit was “ ‘so lacking in indicia of probable cause’ ” that it would be “ ‘entirely unreasonable’ ” for an officer to believe such cause existed.’ [Citation.] ‘The question is whether “a well-trained officer should reasonably have known that the affidavit failed to establish probable cause (and hence that the officer should not have sought a warrant).” [Citation.] An officer applying for a warrant must exercise reasonable professional judgment and have a reasonable knowledge of what the law prohibits. [Citations.] If the officer “reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause,” the seized evidence need not be suppressed.’ [Citation.] The absence of any legal authority directly on point and the existence of arguably supportive legal authority renders the issue of probable cause debatable. [Citation.]” (People v. Garcia (2003)
“ ‘[T]he prosecution has the burden of proving that the officer’s reliance on the warrant was objectively reasonable.’ [Citation.]” (People v. Hirata (2009)
The minimal police investigation and lack of detail in the affidavit are factors weighing against application of the good faith exception. Where “neither the veracity nor basis of knowledge of the informant is directly established, the information is not so detailed as to be self-verifying and there is no logistical or other reason why verification from other sources cannot be achieved, ... the failure to corroborate may be indicative that it was objectively unreasonable for the officer to believe in the existence of probable cause.” (Maestas, supra, 204 Cal.App.3d at pp. 1220-1221, fn. omitted.) Nevertheless, the question under Leon, supra,
We apply the good faith exception in the present case because broad language in several prior court decisions may have led a reasonable officer to conclude the affidavit presented a debatable question as to the existence of probable cause. In particular, several decisions contain language flatly suggesting that multiple unreliable informants can corroborate each other. Thus, in Sheridan, supra, 2 Cal.App.3d at page 489, the court stated, “[I]t may not be said as a matter of law, that two or more independent reports of previously untested informers each corroborating the other, of the same criminal activity, do not constitute probable cause for an arrest or search. . . . [S]imilar information from separate unrelated sources substantially increases the probability of its credibility.” In Balassy, supra,
As explained previously, all of those cases are distinguishable from the present case. However, because the broad language in the decisions in the previous paragraph was “arguably supportive legal authority” in favor of issuance of the warrant, we conclude the existence of probable cause was
DISPOSITION
The judgment is affirmed.
Jones, P. J., and Needham, J., concurred.
Notes
Gates also stated regarding the standard of review, “we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” (Gates, supra,
Gates confirms that indications of criminal activity may arise from police confirmation of detailed innocent activity described by an untested informant. In Gates, an anonymous, handwritten letter informed the police that Susan and Lance Gates were selling drugs in a Chicago suburb. The letter stated in part: “ ‘Most of their buys are done in Florida. Sue . . . drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back.’ ” (Gates, supra,
As the California Supreme Court has pointed out, “the term ‘good faith exception’ may be somewhat of a misnomer, because the exception focuses on the objective reasonableness of an officer’s conduct. [Citations.] Nevertheless, we use the term because of its common acceptance by commentators and courts, including the high court itself. [Citation.]” (People v. Willis (2002)
Though not determinative in our good faith analysis, we do not ignore that the magistrate who signed the search warrant and two other superior court judges who reviewed it found it sufficient.
Although the trial court denied the motion to suppress on the ground that the affidavit established probable cause, we may affirm on a different ground than that relied on by the trial court. (People v. Cowan (2010)