Opinion
F047546
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. LARRY LEIJA, Defendant and Appellant.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Hill, J.
Following the denial of his motion to suppress evidence and quash the search warrant pursuant to which the evidence was seized, appellant Larry Leija pled no contest to possession of marijuana for purposes of sale (Health & Saf. Code, § 11359). The court suspended imposition of sentence and placed appellant on three years probation.
On appeal, appellants sole contention is that the court erred in denying his motion to quash the search warrant and suppress evidence. We will reverse.
FACTUAL BACKGROUND
On December 2, 2003, City of Bakersfield Police Officer Brian Clayton executed an affidavit in support of his request for a search warrant in which he stated, inter alia, the following. "During the last ten days, I was contacted by a confidential and reliable informant [CRI] . . . who told me he/she knows a subject by the name of LALO, a Hispanic male, 40s, approximately 57[,]" 160 pounds, who operates VICs FEED STORE [the store] . . . . The CRI told me that he/she has seen LALO in possession of a quantity of marijuana possessed for purposes of sales while inside [the store]. [¶] I conducted a records check on [the store] and found a LARRY LEIJA . . . who is employed by [the store] . . . . I showed a photograph of LARRY LEIJA . . . to the CRI. The CRI positively identified [that] photograph of LARRY LEIJA as [that of] the subject he/she knows as LALO who operates [the store] . . ., and whom he/she has seen in possession of quantity [sic] of marijuana possessed for purposes of sales."
Also on December 2, 2003, a judge of the Kern County Superior Court issued a search warrant, authorizing the search of, inter alia, appellants person and "the business known as VICs FEED STORE" for various items, including marijuana and "paraphernalia associated with the sale[] of marijuana." Later that day, police officers executed the search warrant and, in searching the store, found approximately one pound of marijuana. Thereafter, appellant admitted to officers that he occasionally sold marijuana.
DISCUSSION
Issuance of the Search Warrant
Appellant contends Officer Claytons affidavit was insufficient to establish probable cause for the search authorized by the warrant, and therefore the court erred in denying appellants motion to quash the warrant and suppress evidence. Specifically, appellant argues that the affidavit was fatally defective because although it stated the CRI contacted Officer Clayton "[d]uring the last ten days," it did not state when the CRI observed the marijuana at the store.
The Fourth Amendment to the United States Constitution states that "no warrants shall issue but upon probable cause, supported by oath or affirmation . . . ." (U.S. Const. Amend. IV.) "Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched." (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) Thus, "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, . . . 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, 230, 238-239 .)
"[T]he element of time is crucial to the concept of probable cause." (People v. McDaniels (1994) 21 Cal.App.4th 1560, at p. 1564.) "[A]n affidavit in support of the search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought." (People v. Mesa (1975) 14 Cal.3d 466, citing SGRO v. United States (1932) 287 U.S. 206, 210 .) "The general rule is that information that is remote in time may be deemed to be stale and therefore unreliable." (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) "Exact dates are not essential if the time can be inferred from the information in the affidavit." (People v. McDaniels, supra, 21 Cal.App.4th at p. 1564; accord, United States v. Holliday (10th Cir. 1973) 474 F.2d 320, 322 [although "the date on the affidavit, standing by itself, does not justify the inference that the information contained therein was received near that date," "[w]here . . . the undated information is factually interrelated with other, dated information in the affidavit, then the inference that the events took place in close proximity to the dates actually given may be permissible"].)
Our task on review is to determine "whether the magistrate [issuing the warrant] 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.) "[T]he magistrates determination of probable cause should be disturbed on review only if the affidavit fails as a matter of law to set forth sufficient competent evidence to support the magistrates finding of probable cause." (People v. McDaniels, supra, 21 Cal.App.4th at p. 1564.) And in making this determination, we must be mindful of the following: "[Search warrant affidavits] are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity have no proper place in this area. . . . [¶] [C]ourts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." (United States v. Ventresca (1965) 380 U.S. 102, at pp. 108-109 .)
Here, as appellant contends, the affidavit contains neither a specific averment as to the date the CRI observed the marijuana in the store nor any information from which the time the CRI observed the contraband can be inferred. The People argue that under a "common sense" reading of the affidavit, the officers statement that "[d]uring the last ten days[] [he] was contacted by [the CRI]" must be interpreted to mean that within that time frame the CRI not only contacted the officer but also made the claimed observations. We disagree.
Appellant cites us to no cases, and we have not discovered by independent research any California cases, on point. However, decisions by federal and sister state appellate courts are instructive. In United States v. Boyd (6th Cir. 1970) 422 F.2d 791, in which the defendant was convicted of possession of an unregistered distillery, a search warrant issued based on an affidavit in which a federal investigator averred that the "facts tending to establish . . . grounds for issuance of [the] search warrant" (id. at p. 791) included that the investigator "detected the odor of fermenting mash emanating from the rear of the dwelling" (id. at p. 792). However, the affidavit did not state when the investigator made this discovery. In reversing the denial of the defendants suppression motion the court stated, "when the date of [the] observation [i.e., the detection of the odor of fermenting liquor] is not supplied to the Commissioner under oath, the door is opened to inference of a present offense based on stale information." (Ibid.)
In United States v. Salvucci (1st Cir. 1979) 599 F.2d 1094, a search warrant issued based on the averment in the affidavit that an informant overheard certain statements made by one of the defendants. In holding the affidavit was insufficient to establish probable cause, the court stated: "[W]e are aware that we must interpret the affidavit `in a commonsense and realistic fashion, not with `(a) grudging or negative attitude or in a `hypertechnical manner. [Citation.] Nevertheless, the Fourth Amendment requires that the supporting affidavits set forth facts sufficient to allow a neutral magistrate to reasonably conclude that the property sought is located on the premises to be searched at the time the warrant issues. [Citation.] A reviewing court may consider only that information which is contained within the four corners of the supporting affidavits. [Citations.] The fatal defect in the present affidavit is that it does not disclose the date of the conversation overheard by the informant . . . . Without this date, there was no way for the magistrate to determine whether the information was sufficiently timely to support the warrant. The absence of any reasonably specific averment as to the time of this conversation is fatal to the warrant." (Id. at p. 1096. emphasis added.)
Similarly, in Commonwealth v. Simmons (Pa. 1973) 301 A.2d 819, where the prosecution, in an attempt to supplement the search warrant affidavit, presented oral testimony by "the affiant-officer . . . that one Richard Lohn `had given a statement to the effect that he (Lohn) ". . . had purchased drugs from [the defendant]"" (id. at p. 821), the court stated: "Here, the affiants information merely asserted that at some point in the past, which could have been a day, a week or months prior to the date of the affidavit, appellant had sold informant-Lohn marijuana. If we were to sustain the magistrates determination, the issuance of search warrants would be allowed solely upon suspicion of criminal conduct, a standard far less demanding than that embodied in the Fourth Amendment. We cannot countenance such a deviation from explicit constitutional norms. `Indeed, if the affidavit [and sworn testimony] in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for [the magistrate]. [Citation.] `It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed"" (id. at p. 823). Numerous state appellate court cases collected by Professor LaFave are to the same effect. (6 LaFave, Search and Seizure (4th ed. 2004) § 3.7(b), pp. 391-392, fns. 67, 68.)
The foregoing authorities teach that we cannot supply what is not in the affidavit, viz., some indication of when the CRI observed the marijuana in the store. Was it a merely a week, or a few days prior to the date of the affidavit? Or was it three months, six months, or a year? Any selection on our part would be purely conjectural, and our refusal to engage in such conjecture does not constitute a hypertechnical interpretation of the affidavit. As indicated above, probable cause must exist at the time the magistrate issues the warrant, not merely at some point in the past; here, without the missing piece of crucial information, the magistrate, at the time the search warrant was sought, could not reasonably determine that the material to be seized was in the place or on the person to be searched. Therefore, the affidavit did not establish probable cause for the issuance of the warrant, and the court erred in denying appellants motion.
Appellant also argues the warrant was not supported by the probable cause because, he asserts, the CRIs reliability was not established. Because we find the warrant invalid for the reasons discussed above, we need not reach this contention.
"Good Faith" Exception to the Warrant Requirement
Relying on United States v. Leon (1984) 468 U.S. 897 (Leon), the People argue that even if the search warrant affidavit did not establish probable cause, Officer Clayton relied on the warrant "in good faith"; it was "objectively reasonable" to do so; and therefore the court did not err in denying appellants motion.
In Leon, the Supreme Court held that evidence seized based on a search warrant that is later determined to be invalid may not be suppressed if the officer executing the warrant was acting in an objectively good faith belief in the validity of the warrant. (Leon, supra, 468 U.S. at p. 926.) The Leon inquiry is limited to the "objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrates authorization." (Id. at p. 922, fn. 23.) Thus, the objective standard "requires officers to have a reasonable knowledge of what the law prohibits." (Id. at pp. 919-920, fn. 20.) And an officer does not "manifest objective good faith in relying on a warrant based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. [Citations.]" (Id. at p. 923.)
Again, we have not been made aware of, or discovered through our independent research, any California case on point. But again, cases from other jurisdictions provide some guidance. Thus, in Herrington v. State (Ark. 1985) 697 S.W.2d 899, 901, where the affidavit contained an averment that an informant had reported seeing contraband in a residence but the "omission of any reference to time [of that observation] is so complete that none can be inferred," the court also found the affidavit fatally lacking in the indicia of probable cause under Leon. Affidavits were found similarly lacking in Nelms v. State (Ala.Cr.App. 1990) 568 So.2d 384, 388 "since there was no reference at all . . . as to when the informant saw the narcotics at the appellants residence"; in U.S. v. Corrigan (M.D. Tenn. 1992) 809 F.Supp. 567, because the affidavit did not contain the date of a secretly taped conversation upon which the probable cause showing was based; and in U.S. v. Huggins (D.D.C. 1990) 733 F.Supp. 445, 449, because the court could not infer from information within "the four corners of the affidavit . . . the time during which the criminal activity was observed." And in U.S. v. Zayas-Diaz (1st Cir. 1996) 95 F.3d 105, where a confidential informant indicated that he had seen large quantities of contraband and cash at a certain residence " `on several occasions " (id. at p. 108) but did not specify when, the appellate court stated, in dicta, "it would seem that a reasonably well-trained law enforcement officer should be familiar with the fundamental legal principle that . . . [the] elements of `probable cause include an essential temporal component" (id. at pp. 114-115; contra, United States v. Anderson (4th Cir. 1988) 851 F.2d 727, 729 [court was "troubled" by affidavit failing to specify date on which informant observed illegal activity, but held, with virtually no discussion, Leon applicable].)
We recognize that the affidavit here is not the sort of " `bare bones " affidavit that has been found lacking under Leon in some cases, i.e., one that "contains only `suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge . . . . " (U.S. v. Laughton (6th Cir. 2005) 409 F.3d 744, 748, emphasis added.) Nonetheless, as indicated above, "[t]he element of time is crucial to the concept of probable cause." (People v. McDaniels, supra, 21 Cal.App.4th at p. 1564.) And here, as also indicated above, the affidavit was totally silent on this crucial element. Because the affidavit was totally lacking on this key point, we conclude the indicia of probable cause were so lacking that law enforcement reliance on it was entirely unreasonable. Therefore, the Leon "good faith" exception to the exclusionary rule does not apply here.
DISPOSITION
The judgment is reversed.