P. v. Davenport

Filed 12/30/08 P. v. Davenport CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Following defeat of his motions to suppress and dismiss, appellant Charles Santiago Davenport pleaded no contest to all charges and enhancements. Specifically, he pleaded no contest to possession of methamphetamine for sale and possession of a firearm by a convicted misdemeanant, and to allegations that (1) at the time of committing count one, he was released from custody on bail and was personally armed with a nine-millimeter firearm; and (2) within 10 years prior to committing count two, he was convicted of threatening a police officer.

Although the information alleged that appellant was ineligible for probation, the court suspended imposition of sentence for three years, placed him on probation, and required appellant to serve 365 days in county jail. This appeal followed.

I. BACKGROUND

A. Factual Background

In the course of investigating reports that appellant might be selling drugs, Deputy Kosmicky of the Contra Costa County Sheriffs Department looked up appellant on the Justice Automated Warrant System (JAWS) database. Deputy Kosmicky testified that JAWS was connected to the courts for all active and inactive cases. It was his understanding that information is input into JAWS by court personnel.

From JAWS Deputy Kosmicky learned that appellant was on probation, subject to a search of his person and/or property. The JAWS data did not limit the search clause to appellants vehicle. However, the JAWS information was inaccurate. In reality, the actual order for probation only required appellant to submit any vehicle under his control to search and seizure at any time of day or night, with or without warrant, to any peace officer, . . . for alcoholic beverages. Based on the JAWS report and other information that caused him to believe appellant was selling drugs, Deputy Kosmicky decided to conduct a probation search of appellants home.

Deputy Kosmicky and other police officers searched appellants residence on June 21, 2005, after knocking three times and waiting approximately 30 seconds to enter. Appellant and his girlfriend were present. The officers handcuffed them and then searched the apartment. From the freezer, Deputy Kosmicky recovered a large baggie containing 81.24 grams of methamphetamine. The search also yielded a scale, packaging, a cup with suspected methamphetamine residue, a loaded nine-millimeter firearm, a cell phone and $910 in cash.

Deputy Kosmicky advised appellant of his rights. Appellant admitted that the methamphetamine was his and that he had been selling drugs for the past eight months. He would lie to his girlfriend, telling her every day that he was going to work for a construction company.

B. Procedural Background

Denying the motion to suppress, the trial court analogized the present case to the facts in People v. Downing (1995) 33 Cal.App.4th 1641 (Downing). There, a police officer conducted a search in reliance on erroneous computer-generated data which was inputted by superior court personnel. The computer log indicated that the defendant was subject to warrantless searches pursuant to a probation waiver, but the defendants probation in fact had expired at the time of the search. (Id. at pp. 1644-1647.) Here the trial court quoted the following passage from Downing: [I]t is absurd to require a police officer to exhaust all avenues of investigation and corroboration when he has no objective reason to question facially valid computer data produced by other than the collective law enforcement department in front of him. [Citation.] In fact, it is almost certain that if the investigating officer here had telephoned the superior court clerk to find out Downings probationary status, he would have been told the same expiration date he had obtained in the Log since the court clerk would have generally pulled the information up on the screen. (Id. at p. 1657, fn. omitted.) The court reasoned that Deputy Kosmicky would have looked at the same thing that the Court would have looked at and concluded that he had reasonable objective information in which to base his search based on his review of the computer-generated court documents.

II. DISCUSSION

Appellant maintains that the motion to suppress should have been granted because there was insufficient evidence that court personnel were responsible for the erroneous JAWS information about the search clause; consequently, the good faith exception to the exclusionary rule did not apply. Further, Deputy Kosmickys reliance on the JAWS data was not objectively reasonable. Finally, appellant contends that his residence was not covered by the erroneous search condition. We are not persuaded by these arguments.

A. Standard of Review

In reviewing the trial courts denial of a motion to suppress, we defer to its factual findings where supported by substantial evidence, but independently review the determination that the search did not violate the Fourth Amendment. (People v. Memro (1995) 11 Cal.4th 786, 846.) Where the prosecution invokes the good faith exception, it is the Peoples burden to prove that suppression of the evidence is not necessary because of that exception. (People v. Willis (2002) 28 Cal.4th 22, 36.)

B. The Good Faith Exception Applies

1. Governing Law

The United States Supreme Court has fashioned an exception to the exclusionary rule where evidence seized in violation of the Fourth Amendment nonetheless was obtained in objectively reasonable reliance on a subsequently invalidated search warrant . . . . (United States v. Leon (1984) 468 U.S. 897, 922.) The benefit of suppressing evidence in these circumstances is marginal or nonexistent (ibid.) under the following rationale: If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. (Id. at p. 919.)

The high court has extended this rule to situations where an officer instituted a search and seizure in reliance on erroneous information that resulted from clerical errors of court employees. (Arizona v.Evans (1995) 514 U.S. 1, 15-16.) In Evans, the defendant was arrested during a routine traffic stop when the patrol car computer indicated there was an outstanding warrant for his arrest. During the subsequent search of his car, the police found a bag of marijuana. In fact, the arrest warrant had been quashed 17 days prior to his arrest. At the suppression hearing, the chief clerk testified as to standard court procedure for quashing a warrant that pointed to the possibility of negligent record keeping on the part of court personnel. The court held that where court employees are responsible for an erroneous computer record, the suppression of evidence at trial would not sufficiently deter future errors so as to justify the severe sanction. (Id. at p. 14.) Moreover, historically the exclusionary rule was designed to deter police misconduct, not mistakes of court employees. (Ibid.)

Our courts similarly have ruled that in determining whether the good faith exception applies, we must consider the objective reasonableness of the officers who conducted the search and those who provided information material to the searching officers. (People v. Willis, supra, 28 Cal.4th at p. 31; People v. Hamilton (2002) 102 Cal.App.4th 1311, 1315.) Resort to the exclusionary rule thus depends on whether, in light of the source of the error, the deterrent effect of exclusion is sufficient to merit that sanction. (People v. Willis, supra, at p. 35.) In turn, we make this determination on a case-by-case basis. (Id. at p. 32.)

2. Source of Error

Appellant thus is correct that application of the exclusionary rule depends on the source of the error leading to the unconstitutional search. However, he incorrectly asserts that there was insufficient evidence that judicial error caused the mistaken entry in the JAWS system.

Appellant analogizes his case to Willis, where a warrantless search was conducted under the erroneous belief that the defendant was on parole subject to a warrantless search condition, when in fact the defendant had been discharged from parole. Whether the source of error was the parole officer or the Department of Corrections, both were adjuncts of law enforcement; therefore the exclusionary rule would have a significant deterrent effect and thus applied in either situation. (People v. Willis, supra, 28 Cal.4th at pp. 26-27, 38-39, 43-44.) Here the source of error was not the police department, a parole officer or the Department of Corrections. Rather, as in Downing, the error stemmed from computerized data furnished by the judicial system.

The testimony of a witness is admissible and relevant to prove a matter if the witness has personal knowledge of such matter. (Evid. Code,  350, 702, subd. (a).) Here, Deputy Kosmicky testified that he had a basic understanding of the JAWS program that provided the data on the terms of appellants probation, and in his knowledge JAWS was a program connected to the courts for all active and inactive cases. Further, it was his understanding that court employees input information into the system, but he did not know who specifically that person was. Ruling on the motion to dismiss, the magistrate implicitly recognized that JAWS was a court-maintained system by comparing it to the system in Downing. As well, the magistrate had his clerk pull up appellants case and observed that Deputy Kosmicky would have been looking at the same thing that the Court would have looked at, namely computer-generated court documents. (Italics added.)

The implication from the testimony and discussion at the hearing on appellants motion to suppress is that Deputy Kosmicky, in the scope and course of his duties as a deputy sheriff, had personal knowledge of the JAWS program; that it is a court-connected program of all active and inactive cases; and a court employee inputs the data into the system. The trial court implicitly corroborated this information, observing that JAWS produces computer-generated court documents. While the courts input was not evidence, the information was not rejected or refuted. Indeed, in the motion to dismiss defense counsel admitted that the Sheriffs department was not the one who entered the data in the JAWS system, emphasizing also that Deputy Kosmicky did not know who, exactly, entered the data.^[1]

3. Reliance on JAWS Database

Appellant also complains that Deputy Kosmickys reliance on the JAWS data was not objectively reasonable because he made no independent effort to verify the data. We reiterate the Downing courts assessment, upon which the trial court relied: In this fast-paced, computerized society, it is absurd to require a police officer to exhaust all avenues of investigation and corroboration when he has no objective reason to question facially valid computer data produced by other than the collective law enforcement department in front of him. (Downing, supra, 33 Cal.App.4th at p. 1657, fn. omitted.) There is no basis in this record to conclude that an objective and reasonable officer should have or would have known that the JAWS record was inaccurate. (Id. at pp. 1656-1657.) In other words, there were no indicia of untrustworthiness and no indication that Deputy Kosmicky was not acting objectively reasonably when he relied on the JAWS data. (Arizona v. Evans, supra, 514 U.S. at pp. 15-16.) Recall that the JAWS system is the court system on all active and inactive cases. We are not dealing with some marginal computer-based recordkeeping system.

Appellant argues that Downing does not address searches performed without corroboration. This is an overstatement. In Downing, the officer checked in-house computer data and then double-checked against a court-maintained log, but did not undertake additional investigation after the suspect told the officer that his probationary period had expired. (Downing,supra, 33 Cal.App.4th at pp. 1645, 1657.) Here, apparently Deputy Kosmicky did not initially consult in-house sheriffs department records. However, as in Downing, the question is whether the officers reliance on court-maintained data was objectively reasonable and, as in Downing, the answer is Yes.

4. Scope of Erroneous Search Clause

Finally, appellant argues that even if Deputy Kosmicky reasonably could rely on the erroneous computer record showing a probation search condition authorizing searches of person and/or property, a consent to search property does not include consent to search the home. This is not the law.

Our Supreme Court has upheld the warrantless search of a defendants home as authorized pursuant to a probation search condition requiring the defendant to submit his person and property to a warrantless search or seizure at any time, day or night, by any law enforcement officer. (People v. Bravo (1987) 43 Cal.3d 600, 602.) The court interpreted the condition as a complete waiver of the probationers Fourth Amendment rights. (Id. at p. 607.)

Additionally, the word property in a probation condition requiring the defendant to submit to search and seizure of [her] person and property at any time of the day or night by any law enforcement officer with or without a warrant has been construed to include the defendants lease or rental of her apartment. (Russi v. Superior Court (1973) 33 Cal.App.3d 160, 164, disapproved on other grounds in People v. Robles (2000) 23 Cal.4th 789, 799, fn. 6.) The Russi court noted that a right to occupancy is a property right. (Russi v. Superior Court, supra, at p. 164.) The rule of Russi is consistent with the definition of property in the Penal Code, which definition includes both real and personal property. (Pen. Code,  7, subd. 10.)

Appellant contends that the term property is ambiguous without clarification from context, but clearly the term, unless modified, has long been understood to include both real and personal property. Appellant advocates resort to the rules of lenity and ejusdem generis to resolve the ambiguity, but as there is none, these rules do not apply.

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1]On cross-examination Deputy Kosmicky testified that he believed someone who worked for the clerks office entered the data, but he did not know specifically who that person was. In other words, he did not know the persons name and/or exact position. In response to further probing, he answered correct to defense attorneys question: Its an assumption that its a court employee. Appellant of course emphasizes this statement, ignoring the prior, more forceful statements that Deputy Kosmicky made on direct examination, based on his knowledge.