Opinion
H046711
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. MERYL LLOYD CRAIG, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 17CR00133, 17CR00134)
Defendant Meryl Lloyd Craig, Jr., pleaded no contest to two counts of possession of heroin for sale (Health & Saf. Code, § 11351) and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted prison prior (Pen. Code, § 667.5, subd. (b)) and on-bail (Pen. Code, § 12022.1) enhancement allegations in exchange for an agreed term of eight years. On appeal, he challenges the denial of his motions to suppress, to quash and traverse six search warrants, and for discovery of sealed information in the affidavits upon which these warrants were based.
Defendant claims that the trial court erred in (1) failing to properly follow the procedure specified in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), (2) failing to find that the second through sixth warrants were the tainted fruits of the first warrant, which the court found was not supported by probable cause, (3) refusing to allow defendant to cross-examine the affiant of the six warrant affidavits in open court about the reliability of the confidential informants, (4) failing to find that the officer executing one of the warrants, which authorized placing trackers on two vehicles, had violated the "one warrant, one search" rule when he put a tracker on one vehicle and later moved it to the second vehicle, and (5) rejecting defendant's claim that the affiant had included false information in some of the affidavits, a claim that was based on an alleged conflict between certain statements in some of the affidavits. We find no errors and affirm the judgment.
I. Factual Background
Santa Cruz County Sheriff's Sergeant John Habermehl had been investigating defendant for possessing methamphetamine for sale. Multiple confidential reliable informants (CRIs) had told Habermehl that defendant was a methamphetamine dealer "operating in Santa Cruz" who "tends to frequent motels in the Santa Cruz area, staying for a few nights before moving on to another motel." Habermehl was trying to determine the identity and location of defendant's supplier. He initially believed that putting a tracker on defendant's vehicle might compromise his investigation.
On October 21, 2016, Habermehl sought and obtained a search warrant for subscriber information and location information for a cell phone with the number 831-316-8586 for the period from October 21 to November 11. A portion of the affidavit was sealed. In the unsealed portion of the affidavit, Habermehl expressed the belief that defendant was associated with that cell phone and stated "I know that Metro PCS can provide precision GPS location information on a cellular phone's physical location when that phone is turned on and accessing the cellular network." The information obtained from this warrant showed that this cell phone was moving around the Santa Cruz area and making numerous short stops.
On October 25, 2016, Habermehl sought and obtained a second search warrant, this time to search defendant's Davenport home, his person, and a silver 2000 Volkswagen Beetle with license number 6MWL254. A portion of the affidavit for the second warrant was sealed. The unsealed portion of the affidavit stated that defendant had been arrested in 2014 for possessing and transporting controlled substances for sale. It further stated that on October 11 the Beetle had been parked outside the Torch Lite Inn in Santa Cruz, and two days later defendant was seen leaving the Torch Lite Inn, getting into the Beetle, and driving away. Five days later, the Beetle was seen parked in the driveway of the Davenport home. In 2015, a vehicle containing a baggie of methamphetamine had been found illegally parked next to the Davenport home.
Habermehl executed the second warrant the day it was obtained. He searched defendant in a Santa Cruz hotel parking lot after defendant was seen returning to the Beetle to meet someone there for what appeared to be a drug sale. On defendant's person and in a backpack defendant was wearing, Habermehl found a large quantity of heroin and methamphetamine along with baggies, a scale, hypodermic needles, a cell phone, and over $5,000 in cash. Police scanners were found in the Beetle. Two men and a woman were with defendant at the time of the search. The woman told the police that she was there to purchase heroin from defendant, and one of the men said he had purchased methamphetamine from defendant in the past. Habermehl also searched defendant's home in Davenport that day and found more heroin and methamphetamine, scales, paraphernalia, and stolen goods.
Defendant was arrested that day, but he posted bail and was released later that day. During the six hours after the cell phone was seized from defendant's pocket, it rang 120 times. On November 2, 2016, Habermehl sought and obtained a third search warrant, this time for information and data in the cell phone. The affidavit for this warrant was not sealed. This warrant yielded 750 text messages, many of which were from people wanting to buy drugs from defendant.
Based on the October 25, 2016 search, defendant was charged by complaint with possession of heroin for sale and possession of methamphetamine for sale, and various enhancements were alleged.
On November 16, 2016, Habermehl sought and obtained a fourth search warrant, this time for subscriber information and location information for the period from November 17 to December 16 for a cell phone with the number 831-325-6230. Two pages of the affidavit were sealed. In the unsealed portion of the affidavit, Habermehl stated that this information was needed because defendant moved around so much that a vehicle tracker would "be inherently difficult" to install. Habermehl again stated: "I know that [the provider] can provide precision GPS location information . . . ."
On November 30, 2016, Habermehl sought and obtained a fifth search warrant, this time for installation, maintenance, and recovery of "a tracking device" on two vehicles: a 1994 Nissan Sentra with license number 3VIC246, and a 1998 Volkswagen Golf with license number 5BDL028. The affidavit, two pages of which were sealed, stated in the unsealed portion that defendant had been seen multiple times with the Golf. The Sentra had a pending registration to defendant. Habermehl stated that the location information from the fourth search warrant had been "somewhat helpful in determining the general area where the telephone is located but does not provide me with an exact location of Craig and his travels" because "the accuracy ranges from 360 to over 700 feet." The warrant authorized "re-access" to the vehicles "during the monitoring period" "to service or remove the tracking device," including "reinstallation" or "replacement" of the device.
On December 1, 2016, a tracker was installed on the Sentra, but the Golf could not be located at that time. On December 7, Habermehl found both the Sentra and the Golf parked near the Mission Inn in Santa Cruz. Because he lacked a second tracker, he removed the tracker from the Sentra and installed it on the Golf. Both vehicles were later seen at another motel in Santa Cruz. On December 15, the Golf was tracked to the Riverview Villas, a Santa Cruz bed and breakfast establishment. Habermehl learned on December 16 from the hotel manager that defendant had checked in to Riverview Villas on December 15.
On December 16, 2016, Habermehl sought and obtained the sixth search warrant, which authorized a search of the room at Riverview Villas where defendant was staying, the Sentra and the Golf, defendant's person, and anyone else in his room or his vehicles. Three pages of the affidavit were sealed. The unsealed portion of the affidavit recounted all of the above information. On December 16, defendant and the room where he was staying at Riverview Villas were searched. Heroin, methamphetamine, and over $15,000 in cash were found in the room with defendant.
On December 15, 2016, Habermehl had sought and obtained a search warrant for a motel room at the Fairfield Inn in Santa Cruz. However, defendant had checked out before this warrant could be executed. It is not at issue here.
II. Procedural Background
Based on the October 25, 2016 searches, defendant was charged by complaint with possession of heroin for sale and possession of methamphetamine for sale, and prison prior and prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)) enhancements were alleged.
Based on the December 16, 2016 searches, defendant was charged by a second complaint with possession of heroin for sale and possession of methamphetamine for sale along with prison prior and prior narcotics convictions enhancement allegations and an on-bail enhancement allegation.
Both complaints were dismissed and refiled in January 2017. Defendant was held to answer in both cases, and informations were filed with the same counts and allegations plus a special weight allegation (Pen. Code, § 1203.073, subd. (b)(2) [probation barred except in an unusual case]) that was added to the December methamphetamine count.
In September 2018, defendant's attorney filed combined motions to suppress the fruits of the searches, to quash and traverse the six search warrants, and for discovery under Hobbs. First, he asked the court to follow the Hobbs procedure. Second, defendant's attorney claimed that Habermehl had violated the " 'one warrant, one search' " rule when he moved the tracking device from the Sentra to the Golf. Third, defendant's attorney argued that materially false information had been included in the affidavits for the cell phone location information and for the trackers because there was a conflict between Habermehl's claim in the affidavits for the cell phone warrants that he would obtain "precision" location information and his assertion in the affidavit for the tracker that the location information did not "provide . . . an exact location."
In April 2017, defendant's current appellate counsel was appointed as his trial counsel after the previously appointed trial counsel declared a conflict.
Among other things, defendant's attorney asked the court "to review the reporter's transcripts of any testimony the affiant, or any law enforcement officer, has ever given in proceedings where the informant was a party to those proceedings, or where the affiant, or any law enforcement officer, in his or her testimony in any other proceedings, whether or not the informant was a party to the proceedings, mentioned the informant either directly by name or indirectly by some less specific reference to the informant's identity." He cited no authority for this specific request. In Hobbs, the California Supreme Court made clear that the trial court exercises "discretion" in determining what materials it requires at the in camera hearing. (Hobbs, supra, 7 Cal.4th at p. 973.) The record does not support any suggestion that the trial court abused its discretion in this regard. --------
The prosecution stipulated to the facts set forth in defendant's motion. It agreed that the court should follow the Hobbs procedures and argued that sealing was proper, that there had been no violation of the "one warrant, one search" rule, that no materially false or misleading information had been included in any of the affidavits, and that, even if any of the warrants was invalid, Habermehl had acted in good faith reliance on the warrants.
In November 2018, the court held an in camera hearing, reviewed the sealed portions of the affidavits, and examined Habermehl. The court found that the first search warrant (SW 16-416), the one for subscriber and location information for the cell phone with the number 831-316-8586, was not supported by probable cause because there was no information in the affidavit linking that cell phone to defendant. The court stated: "I'm not seeing any connection between that cell phone number and [defendant]." Habermehl conceded as much. After examining the sealed portions of the affidavits for each of the other four warrants for which a portion of the affidavit was sealed, the court found that each of these sealed portions had been properly sealed and that probable cause supported the issuance of each warrant.
After the November 2018 in camera hearing, the court held a hearing in open court at which it heard argument from the parties. The court reported that it had concluded that there was a lack of probable cause to support the first warrant because there was nothing connecting defendant to that cell phone number. The court requested further briefing from the parties on whether the lack of probable cause for the first warrant tainted any of the subsequent warrants. The court also reported that it had found that the sealed affidavits were properly sealed and that all of the warrants other than the first warrant were supported by probable cause. It also found that there had been no false information or misrepresentations in the affidavits and that there had been no violation of the "one warrant, one search" rule. The court reported that "the credibility [of the CRIs] proffered, based on the relevance of that individual's information, was sufficient."
Defendant submitted a brief arguing that the subsequent warrants were the fruits of the unsupported first warrant. In January 2019, the court held a second in camera hearing to further consider whether the fruits of the first warrant had tainted the other warrants. At this hearing, Habermehl confirmed that the fruits of the first warrant had not been used to obtain any of the subsequent warrants.
At a February 2019 hearing in open court, the court reported its conclusion that the information obtained through the first warrant "was not used in any way to support the establishment of probable cause in any other of the search warrant affidavits—either sealed or unsealed portions—was not used to motivate the officers to obtain additional search warrants. . . . I don't think anything was obtained really of use from that particular search warrant—" The court found: "[A]ll information received from any confidential informant was reliable. All sealings were proper. None of the sealings were overbroad. And disclosing any information in any of the sealed portions would tend to identify any confidential informant. Sufficient probable cause was established for the issuance of all the search warrants." Defendant's attorney asked the court to permit him to examine Habermehl in open court about the reliability of the CRIs. The court denied the request on the ground that it would "jeopardize the identity" of the CRIs. The court denied defendant's motions.
Defendant subsequently entered into a plea agreement under which he agreed to plead no contest to both counts in the October case and to the heroin count in the December case and to admit the prison prior in the October case and the on-bail enhancement allegation in the December case in exchange for dismissal of the remaining count and allegations and an agreed term of eight years, with five in custody and three on mandatory supervision. After defendant entered those pleas and admissions, the court imposed the agreed term, which was composed of a four-year upper term for the heroin count in the October case, a concurrent two-year midterm for the October methamphetamine count, a one-year term for the prison prior in the October case, a one-year one-third the midterm sentence for the December heroin count, and a two-year term for the on-bail enhancement. The court ordered that five years of the total of eight years would be in custody with three years of mandatory supervision. Defendant was awarded 1,688 days of credit against his term. The court dismissed the remaining count and allegations. Defendant timely filed notices of appeal challenging only the denial of his motions.
III. Discussion
A. Hobbs Compliance
Defendant asks us to review the sealed portions of the record to ensure that the trial court complied with the procedures set forth in Hobbs.
The procedures set forth in Hobbs, which apply where all or a portion of a search warrant affidavit is sealed, concern three issues. The first step under Hobbs is for the trial court to determine "whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Hobbs, supra, 7 Cal.4th at p. 972.) This is the "discovery" portion of the motion. If sealing was improper, the court must order disclosure of the improperly sealed portion to the defendant.
The second step is the "traverse" portion of the motion. The purpose of a traverse is to determine whether a hearing is merited under Franks v. Delaware (1978) 438 U.S. 154 (Franks). The issue at a Franks hearing is not the veracity of the confidential informant, but the veracity of the affiant, here Habermehl. (Franks, at p. 170 [hearing concerns "only the question of the integrity of the affiant's representations as to his own activities"].) Ordinarily, a Franks hearing is required only where the defendant makes a preliminary showing that "the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth." (People v. Scott (2011) 52 Cal.4th 452, 484 (Scott).) Because, where all or a portion of the affidavit is sealed, "the defendant cannot reasonably be expected to make the preliminary showing" normally required for a motion to traverse the warrant, the Hobbs procedures require the trial court to "take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires." (Hobbs, supra, 7 Cal.4th at pp. 971, 973.) "If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse." (Id. at p. 974.) "If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse," then additional steps must be taken. (Id. at pp. 974-975.)
The final issue, the "quash" portion of the motion, concerns whether the warrant was supported by probable cause. The court must examine both the sealed and unsealed portions of the affidavit and "determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant." (Hobbs, supra, 7 Cal.4th at p. 975.) "If the court determines, based on its review of all the relevant materials, that the affidavit and related materials furnished probable cause . . . , the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.] If, on the other hand, the court determines, based on its review of all relevant materials and any testimony taken at the in camera hearing, that there is a reasonable probability the defendant would prevail on his motion to quash the warrant," additional procedures are required. (Ibid.)
We have examined the sealed and unsealed portions of the affidavits and the transcripts of the court's in camera hearings. The trial court examined the sealed and unsealed portions of the affidavits and examined Habermehl at the two in camera hearings. It properly determined that the sealing of the affidavits was necessary to protect the CRIs. The court also properly found that there was nothing in the sealed portions of the affidavits or elsewhere to suggest that Habermehl's statements in the affidavits in support of probable cause were "deliberately false or were made in reckless disregard of the truth." (Scott, supra, 52 Cal.4th at p. 484; Hobbs, supra, 7 Cal.4th at p. 973.) Finally, the court properly found that all of the warrants, except for the first warrant, were supported by probable cause and that the fruits of the first warrant were not used to support and did not prompt any of the other warrants. Accordingly, we conclude that the trial court properly followed the Hobbs procedures.
B. Fruits
Defendant claims that the trial court erred in finding that none of the other warrants were tainted due to the lack of probable cause for the first warrant.
" ' "[T]he fact that an application for a warrant contains information obtained through [unlawful conduct] does not perforce indicate that the improper information 'affected' [the magistrate's] decision to issue the warrant and thereby vitiate the applicability of the independent source doctrine. Rather, if the application contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, provided that the officers were not prompted to obtain the warrant by [the unlawful conduct]." ' " (People v. Weiss (1999) 20 Cal.4th 1073, 1082.)
The trial court found that the fruits of the first warrant—that a certain cell phone moved around the Santa Cruz area and made numerous short stops—even when it was included in some of the affidavits for the subsequent warrants, did not affect the magistrates' decisions to issue the later warrants because it played no role in establishing probable cause for any of the later warrants and did not prompt the officers to seek the later warrants. The record supports these findings, so we must uphold them.
C. Denial of Cross-Examination of Habermehl in Open Court
Defendant claims that he had a statutory and constitutional right to "examine" Habermehl "in open court" about the reliability of the CRIs. He predicates this argument on Evidence Code section 1042, subdivision (c).
The structure of Evidence Code section 1042 provides for a general rule (subdivision (a)) and then sets forth two different exceptions, subdivision (b), which concerns proceedings regarding a warrant, and subdivision (c), which concerns a variety of criminal proceedings. Subdivision (a) provides that, where privileged information is material to an issue "in a criminal proceeding," the court shall make a finding adverse to the prosecution on that issue. Subdivision (b) provides: "Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it." (Italics added.) Subdivision (c) provides: "Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure." (Italics added.)
Defendant's position is that subdivision (c) applies even where there was a warrant because it refers to "the issue of reasonable cause to . . . search" without specifying that it is limited to searches without a warrant. This same argument was rejected by the First District Court of Appeal in People v. Flannery (1985) 164 Cal.App.3d 1112 (Flannery). In Flannery, the First District held: "[T]he search and seizure in the present case took place pursuant to a search warrant issued by a magistrate. Thus, the controlling statute is subdivision (b) of section 1042 which provides in relevant part that 'where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.' " (Id. at p. 1116, first set of italics added.) "[A]ppellant's reliance on section 1042, subdivision (c), is obviously misplaced. While this subdivision provides that the reliability of the confidential informant must be established upon evidence presented in open court, pursuant to the interpretation of case law subdivision (c) applies only to search or arrest made upon probable cause without a warrant." (Id. at p. 1119, fn. omitted.) "[T]he proceeding set out in subdivision (c) applies only to a warrantless search or arrest." (Id. at p. 1120.)
We agree with the First District's construction of Evidence Code section 1042 in Flannery, and we note that Flannery was cited on this point with apparent approval by the California Supreme Court in Hobbs. (Hobbs, supra, 7 Cal.4th at pp. 959, 961, fn. 3.) Defendant "acknowledge[s]" Flannery, but he simply states that its holding is "clearly erroneous" and makes no effort to address its reasoning. Since we find the First District's reasoning in Flannery persuasive, we reject defendant's contention.
D. One Warrant, One Search Rule
Defendant asserts that Habermehl violated the one warrant, one search rule when he moved the tracker from the Sentra to the Golf.
"[T]he general rule [is] that a single search warrant authorizes but a single search. So holding does not, however, end our discussion. In deciding that a single warrant allows only one search, we must recognize it is sometimes unclear whether the activities of the authorities constituted a single search or multiple searches. Such determination of whether the 'search' was singular or duplicative is a question of fact which is best consigned to the trial court hearing the motion to suppress. [Citations.] After having decided the nature of the authorities' activities, the trial court would rule upon the reasonableness of such activities. On review, we would be bound by the express or implied factual findings of the trial court supported by substantial evidence; we would redetermine, as a question of law, the reasonableness of such activities." (People v. James (1990) 219 Cal.App.3d 414, 419-420.)
The November 30, 2016 tracker search warrant authorized "the installation, maintenance, and recovery of a tracking device wherever the below described vehicles are located" and identified the vehicles as the Sentra and the Golf. The "install" was required to occur within 10 days of the issuance of the warrant, and the warrant authorized the monitoring of the device for 30 days. It was undisputed that Habermehl installed a tracker on the Sentra on December 1, 2016, but no tracker could be placed on the Golf at that time because the Golf could not be located. The Golf was not located until December 7, and due to the unavailability of a second tracker, Habermehl simply moved the tracker from the Sentra to the Golf.
The trial court found that Habermehl's conduct was authorized by the warrant. It found: "The language of the search warrant should have been more specific, but because it is so general, I don't find that the officer's conduct was in violation of the [warrant]. [¶] And the period that the tracking devi[c]es were on the vehicles didn't exceed 30 days; . . . That's what the search warrant allows is 30 days." "They put one on, took it off, . . . put it on a different car, if it all occurred within 30 days, that was all within what was permissible under the search warrant, understanding that multiple searches in other cases certainly would be violations, but not under what was allowed with this search warrant . . . ."
Although the trial court's reliance on the 30-day monitoring period was inaccurate, since the warrant authorized only a 10-day installation period, this was immaterial since the tracker was installed on the Golf well within the authorized 10-day installation period. As the warrant authorized the installation of a tracking device on both vehicles during that period, the installation of the tracker on the Golf on December 7 was not an unauthorized second search but instead the completion of the execution of warrant, which was not completely executed until both installations had been completed. This was not a situation where a single place was searched and then later that same place was searched again. Here, the warrant authorized two separate vehicles to be searched. One was searched and then the other. No violation of the one warrant, one search rule occurred because only a single search of each authorized location occurred.
E. False or Misleading Information in Affidavits
Defendant claims that the trial court erred in denying his motion to traverse because Habermehl included false or misleading information in the two cell phone warrant affidavits and the tracker warrant affidavit. This claim is premised on defendant's assertion that there was a fatal inconsistency between the cell phone warrant affidavits, which stated that the cell providers could supply "precision" location information, and the tracker warrant affidavit, which stated that the location information was not "exact."
Habermehl initially believed that a tracker on defendant's vehicle would "be inherently difficult" to install because defendant moved around so much and installing a tracker might compromise his investigation. Instead, Habermehl sought warrants for location information for cell phones that he believed were associated with defendant. In the unsealed portions of the affidavits for these warrants, Habermehl stated that the cell provider could "provide precision GPS location information on a cellular phone's physical location when that phone is turned on and accessing the cellular network." (Italics added.) After he received information from these warrants, Habermehl realized that this location information was not sufficiently exact. In the affidavit for the tracker warrant, Habermehl stated that the location information was only "somewhat helpful in determining the general area where the telephone is located but does not provide me with an exact location of Craig and his travels" because "the accuracy ranges from 360 to over 700 feet." (Italics added.)
The trial court rejected defendant's claim that Habermehl had made false or misleading statements in the affidavits as to the "precision" of the location information. "Regarding the possibility of misrepresentation, precision points of the pinging, I don't find that to be intentional or misrepresentation at all. In my lay person's mind—that's what we judges are, lay people—that's precision. When you're looking for someone in the whole world and they can tell you you're within 32 football fields, that was the outside, that's pretty good. In my mind, that's precision. I don't see that as not being precision. If you're looking for someone who is being held hostage or lost in the world and say 32 football fields, I'll take that as precise. I don't think looking at precise would mean sitting in the third chair over here or even in this courtroom or in this courthouse. And you tell me this area of Santa Cruz and I'm thinking, as a judge, that's precise. So I don't believe that's misrepresentation so I would deny that motion to traverse for that particular issue."
"A defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. The trial court must conduct an evidentiary hearing only if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. Innocent or negligent misrepresentations will not support a motion to traverse. (Franks v. Delaware (1978) 438 U.S. 154, 154-156; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.) . . . [T]he defendant must make his showing by a preponderance of the evidence, and the affidavit is presumed valid." (Scott, supra, 52 Cal.4th at p. 484.) "The trial court's decision to not hold a Franks hearing is reviewed de novo on appeal." (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316.)
We agree with the trial court that Habermehl did not make any "deliberately false" statements or any statements that "were made in reckless disregard of the truth." Even if we assume that Habermehl's statements that the cell providers could provide precision location information was inaccurate, defendant made no showing whatsoever, let alone a substantial one, that Habermehl's statement of his belief that the cell phone warrants would yield precision location information was deliberately false or made in reckless disregard for the truth. The affidavits must be "presumed valid," and, as the trial court reasonably found, Habermehl's statements were at worst based on his innocent or negligent misunderstanding of the degree of precision he could expect from cell phone location information. The trial court did not err in rejecting defendant's traverse on this ground.
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.