P. v.
Filed 5/6/13 P.
v. Jackson CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY RENE
JACKSON,
Defendant and Appellant.
B242495
(Los Angeles County
Super. Ct. No.
TA119482)
APPEAL
from a judgment of the Superior Court of
County.
Eleanor J. Hunter, Judge. Affirmed.
David
M. Nisson; David J. Scharf for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Defendant Tony Rene Jackson appeals from the denial of
his motion to quash the search warrant and his
Code section 1538.5.
name="_ftnref1" title="">[1] After denial of his motions, defendant agreed
to plead no contest to one count of possession of a firearm by a felon with four
prior convictions (§ 12021, subd. (a)(1)) (count 3) in exchange for a sentence
of four years.
name="_ftnref2" title="">[2] The sentence consisted of the midterm of two
years, doubled to four years due to defendant’s prior conviction of a serious
felony. (§§ 1170.12, subd. (a) – (d);
667, subd. (b) – (i).)
Defendant appeals on the grounds
that the trial court erred by denying his motion to suppress evidence because
the facts alleged in the affidavit did not justify the search, and the good
faith exception did not apply.
FACTUAL AND
PROCEDURAL HISTORY
Joe Cummings had known defendant for
several years.
name="_ftnref3" title="">[3] Cummings believed defendant was angry with
him for an incident that occurred at the funeral of Cummings’s mother.
gun into the funeral.
Cummings made a police report about
an incident that occurred on March 25, 2011, when he
encountered defendant at a store.
Defendant approached Cummings and said, “I got my gun with me
tonight.†Defendant left the store and
waited in the parking lot, and Cummings saw that defendant was armed with a
gun. Store employees called police, and
defendant fled. When the police arrived,
Cummings provided the officers with some information about defendant. The officers attempted to pursue and
apprehend defendant, but were unsuccessful.
The officers returned to the store, but Cummings had already gone.
On March 26, 2011, Cummings was in front of
his home when he saw defendant driving a silver or gray Chrysler 300. Defendant stopped in front of Cummings’s home
and said while holding a gun, “Nigga I’m gonna kill your punk ass!†Cummings was in fear and called the police.
On April 26, 2011, Cummings went to the
police station. It appears he officially
reported the March 25, 2011 incident at this
time. On June 14, 2011, Cummings returned to the
police station and met with Los Angeles Police Detective Patrick Flaherty.
On August 4, 2011, a magistrate approved Detective Flaherty’s search
warrant and affidavit. The transcript of
the preliminary hearing shows that Detective Flaherty obtained and served a
search warrant at defendant’s home on August
10, 2011, and found a loaded .25-caliber semiautomatic pistol.
DISCUSSION
Argument
that Detective Flaherty failed to aver sufficient fresh facts to support the
search warrant. The affidavit recited
the opinions and conclusions of the affiant, and the information from Cummings
was inadequate and unreliable. Defendant
also argues that the detective could not rely on the good faith exception under
the circumstances. Therefore, all
evidence should have been suppressed.
the Warrant
The record shows that the warrant
was obtained to search defendant’s residence and any vehicles connected to the
occupants of that residence. The items
to be seized were any and all firearms or pieces of firearms and firearm
paraphernalia, any evidence of street gang membership, any safe, and any items
tending to establish the identity of the persons in control of the
premises. Detective Flaherty summarized
his experience as a gang officer, and stated that he was assigned to the police
department’s Division Gang Impact Team.
In the statement of probable cause,
Detective Flaherty summarized the two police reports made by Cummings—one describing
the March 26, 2011 incident, and
the other describing the March 25, 2011 incident. The affidavit stated that Cummings knew
defendant as a hardcore gang member of the Blood Stone Villains. Detective Flaherty then stated that he had
determined defendant’s ownership of a vehicle and the registration address by
means of department resources. He had
shown Cummings a photographic lineup, and Cummings had identified defendant as
the person who threatened to kill him with a gun. Detective Flaherty stated that defendant had
several prior arrests for violent crimes including
violations, and weapons violations, and he was a convicted felon.
The statement of probable cause
further attested, “Whether or not the above firearm is recovered, I believe
that above items tend to show that a firearm existed and may have once been
located in a place to which the suspect had access, and that these items would
tend to connect the suspect to the weapon sought. I further note that in my experience, the
above items are not normally disposed of after the commission of a crime, and
that they are therefore still likely to be found in any location or vehicles to
be searched, or on the person of any suspect to be searched pursuant to this
warrant.â€
III. Motion Hearing
At the
hearing on defendant’s motions, defense
counsel argued that the information was 131 days old, there were no facts
to indicate defendant was a current gang member, and no facts to say why a gun
was likely to be found at defendant’s home when the only place it had been seen
was in a car in a different city.
Moreover, the officer expressed that a firearm might not even be found. The prosecutor argued that the defense had
cited only drug-related cases as authority, and a firearm is a personal
possession intended for reuse and was of “enduring utility.â€
In making its ruling, the trial
court first noted that the warrant did contain some indication that defendant
was a gang member, since it contained the victim’s statement that he knew
defendant as a hardcore gang member who used the moniker “Sinbad.†The court stated, “I do think there is a difference
between guns and drugs, and I think the cases note that, that there is a
difference between the two . . . .†The fact that defendant had been seen with
the gun several times, albeit over a long period of time, was a circumstance of
the crime that indicated it was a continuing offense. The defendant’s remark to the victim that he
had his gun implied that defendant
had a possessory interest in it. An
additional factor was defendant’s criminal history. Under the totality of the circumstances, the
trial court believed that the magistrate had sufficient grounds to deem there
was probable cause. The court denied the
motion to quash and agreed that, in the alternative, the good faith exception
applied. The trial court denied the
motion to suppress.
Authority
Probable cause exists if “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, 238.) “Because a search conducted pursuant to a
search warrant is presumed lawful, the burden of establishing the invalidity of
the search warrant rests upon the defendant.â€
(People v. Lazalde (2004) 120
Cal.App.4th 858, 865.) In determining
the sufficiency of an affidavit for the issuance of a search warrant, the test
of probable cause is whether the facts in the affidavit would lead a person of
ordinary caution and prudence to believe and conscientiously entertain a strong
suspicion of the guilt of the accused. (
1041.)
“The general rule is that
information that is remote in time may be deemed to be stale and therefore
unreliable. [Citation.]†(People
v. Gibson (2001) 90 Cal.App.4th 371, 380.)
However, “[t]he question of staleness turns on the facts of each
particular case. [Citations.] If circumstances would justify a person of
ordinary prudence to conclude that an activity had continued to the present
time, then the passage of time will not render the information stale. [Citation.]â€
(People v. Hulland (2003) 110
Cal.App.4th 1646, 1652.) There is no bright-line
rule defining a point in time—whether it be in days, weeks, or months—at which
information in an affidavit must be considered too stale to support probable
cause. (People v. Carrington (2009) 47 Cal.4th 145, 163-165.)
“The magistrate’s determination of
probable cause is entitled to deferential review. [Citation.]â€
(People v. Carrington,
sustained by reviewing courts as long as there was a “substantial basis†for
his conclusion that the legitimate objects of the search were “probably
present†on the specified premises.’†(
Cal.3d 144, 150; see also Illinois v.
Gates, supra, 462 U.S. at pp.
238-239.) “Although in a particular case
it may not be easy to determine when an affidavit demonstrates the existence of
probable cause, the resolution of doubtful or marginal cases in this area should
be largely determined by the preference to be accorded to warrants.†(United
States v. Ventresca (1965) 380 U.S. 102, 109; see also People v. Weiss (1999) 20 Cal.4th 1073, 1082-1083.)
Properly Denied Motions
and conclude that, given the nature of the evidence and the information
supplied by the victim, Detective Flaherty’s affidavit asserted a sufficient
basis for the trial court to uphold the magistrate’s finding. The warrant was not invalidated by stale
information, despite the lapse of time between the last sighting of defendant
with the gun and the request to search.
The most significant factor in
support of this conclusion is the fact that the nature of the item to be sought
was a firearm, with which defendant had been seen on at least two occasions,
albeit far apart. Cummings may have seen
it on a third occasion—in the store parking lot—and it is clear that defendant
at least alluded to having his gun at that time. Although defendant repeatedly points out that
defendant was seen with the firearm miles from his home, we do not believe this
fact is significant. A firearm is
portable and is usually meant to be in the same place as its owner, wherever
the owner may be. If an individual
brandishes or uses a firearm, the most logical places to look for that firearm
are on his person, in his home, or in his car.
This constitutes a reasonable inference rather than “speculation and
conjecture,†as defendant alleges.
In United States v. Bowers (9th
Cir. 1976) 534 F.2d 186 (Bowers),
where the defendant was charged with the shooting death of a park ranger, the
Ninth Circuit concluded that the affidavit was sufficient, “though by no great
margin.†(Id. at pp. 188, 190.) The
court based its conclusion on the circumstances of the murder and the evidence
at the scene, which indicated that other evidence, including guns and
ammunition, would likely be found where the perpetrators lived. (Id.
at pp. 190-192.) The court found that
the magistrate properly concluded that there was a reasonable ground to believe
the items were located at a house to which the defendant was connected, since
the objects sought were of the type likely to have been kept for the six weeks
that elapsed between the murder and the search, and the items would probably be
found where the perpetrators lived. (
the items to be seized and the place to be searched rested not on direct
observation, as in the normal search-and-seizure case, but on the type of crime,
the nature of the missing items, the extent of the suspect’s opportunity for
concealment, and normal inferences as to where a criminal would be likely’ to
conceal the property sought.†(
Defendant argues that the facts of
the instant case are comparable to those of United
States v. Charest (1st Cir. 1979) 602 F.2d 1015 (Charest), a case that criticized the holding in
Unlike Bowers, the
invalid because the affidavit did not provide a sufficient nexus between the
firearm sought and the defendant’s premises.
(Charest, at pp.
1015-1016.) An eyewitness to the murder
in the murder victim’s home identified the defendant as the shooter, and a
police officer obtained a warrant for the defendant’s home, where a gun was
found in a bedroom closet. (
court stated that there was nothing in the affidavit from which a factual
finding could be made that the gun used in the shooting was probably located at
defendant’s address, since “[c]ommon sense tells us that it is unlikely that a
murderer would hide in his own home a gun used to shoot someone.†(Id.
at p. 1017.) The court had found no case
where “a search warrant was issued for a person’s home on the sole basis that a
handgun had been used by that person in the commission of the type of crime
where the bullets used could be traced to the gun.†(Ibid.) The court noted the Bowers case, but stated, “Even if we accept Bowers as good precedent, and as to this we have some doubt, it is
different from our situation where the affidavit states that the property for
which the issuance of a search warrant is sought is a single handgun.†(Ibid.) The Charest
court also found it was contrary to common sense to expect a murderer to keep
the murder weapon in his own home for 16 days, which was the time lag between
the murder and the date of the affidavit.
(Id. at p. 1018.)
We believe Charest is distinguishable from the instant case. Defendant was not accused of murder, and a
particular handgun (e.g., “capable of firing a 38 calibre projectileâ€) was not
sought in this case. (See
Although the Charest court
might be correct that a murderer would not logically keep in his home a murder
weapon that could be subjected to ballistic tests, in the instant case,
defendant referred to the gun as his gun, and the crime he was accused of in
relation to that gun was related principally to its illegal possession, not a
murder. An individual who carries a gun
and uses it to make himself feared or for protection against enemies is likely
to keep the gun nearby rather than to continually dispose of his guns and
acquire new ones. And the most likely
places the individual would keep the gun are at his home and in his car. We believe the Bowers ruling was correct under the totality of the circumstances
in that case, and we believe the totality of the circumstances in the instant
case favors the ruling by the trial court.
It is true that “[t]he freshness of
the information on the basis of which a warrant is sought and obtained, is one
of the factors which determine whether there is probable cause to believe that
the articles covered by the warrant will be found at the place that is to be
searched.†(People v. Hernandez (1974) 43 Cal.App.3d 581, 586.) Nevertheless, if circumstances would justify
a person of ordinary prudence to conclude that an activity had continued to the
present time, then the passage of time would not render the information
stale. (People v. Hulland, supra,
110 Cal.App.4th 1646, 1652.) As noted
previously, courts have refrained from establishing a bright-line rule for
determining staleness. Information
concerning someone who is suspected of possessing firearms illegally is not
stale, “even several months later,†because it is reasonable, and adheres to
common sense, to believe that “individuals who possess firearms tend to keep
them for long periods of time.†(
1069, 1074; see also U.S. v. Kennedy
(8th Cir. 2005) 427 F.3d 1136, 1142, fn. 5; Bowers,
supra, 534 F.2d at pp. 192-193.) Additionally, courts have upheld warrants
despite delays between evidence of criminal activity and the issuance of a
warrant when there is reason to believe that criminal activity is ongoing or
that evidence of criminality remains on the premises. (People
v. Carrington, supra, 47 Cal.4th
at pp. 163-164; Hulland, at p.
1652.) Defendant’s apparent habit of
carrying a gun with him constitutes ongoing criminal activity.
Defendant attempts to cast doubt
upon Cummings’s reliability by stating that no explanation was given as to why
Cummings never told the police about the March 25 incident when he “ostensiblyâ€
reported the March 26 incident. As
defendant acknowledges, Cummings was a citizen informant (rather than a police
informant, paid or otherwise), and he was therefore presumptively
reliable. (People v. Ramey (1976) 16 Cal.3d 263, 268-269.) According to the statement of probable cause,
when Detective Flaherty met with Cummings on June 14, 2011, Cummings had
reported the two previous incidents, which had two separate case numbers. Cummings spoke with police at the time of the
March 25 incident, and it is possible he believed that sufficient. In any event, in determining probable cause, an
informant’s reliability must be reviewed under a totality of the circumstances
test. (Illinois v. Gates, supra,
462 U.S. at pp. 230-231.) The evidence
presented in the search warrant affidavit “‘must be seen and weighed not in
terms of library analysis by scholars, but as understood by those versed in the
field of law enforcement.’†(
as to an informant’s motives, his explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed firsthand,
entitles his tip to greater weight than might otherwise be the case.†(Id.
at p. 234.)
Defendant also makes much of the
fact that the affidavit refers to a “Victim Perry,†when no other information
about this victim or witness is provided.
The affidavit summarizes police report No. DR 1118-10670, and states,
inter alia, that “On April 26, 2011 at 1330 hours Victim Perry arrived at
Southeast station to make a police report about an incident that occurred on March
25, 2011.†Immediately before the
summary of defendant’s two police reports, the detective stated that he had met
with Cummings on June 14, 2011, and Cummings “had reported two previous
incidents to the police reference Addendum “A†DR 118-08798 and Addendum “Bâ€
and March 26 of 2011 in the city of Los Angeles.†We agree with respondent that the reference
to Perry was most likely made in error by Detective Flaherty, and the detective
was referring to Cummings in that one and only mention of a victim Perry. Courts should not invalidate search or arrest
warrants by interpreting an affidavit in a hypertechnical manner rather than in
a common sense manner. (
as noted by respondent, defendant did not question the reference to Perry in
his written motion or during the hearing and has therefore forfeited any claim
of unreliability based on a single mention of this name. (People
v. Williams (1999) 20 Cal.4th 119, 136.)
Defendant also criticizes Detective
Flaherty’s inclusion of a summary of his background as a gang officer in the
warrant application. We note that
Detective Flaherty did not include information on his experience in the
statement of probable cause. Moreover, a
magistrate may consider the affiant’s opinion, providing that the affiant has
sufficient training and experience, when making a probable cause
determination. (People v. Kershaw (1983) 147 Cal.App.3d 750, 760.) In the instant case, the detective’s training
and experience was not offered as a substitute for a lack of evidentiary nexus
between the location to be searched and probable cause to believe the search
would produce evidence of the suspected criminal activity, as defendant claims. Rather, the information on the detective’s
background was a permissible and necessary component of the totality of the
circumstances. As the trial court
observed, defendant’s remark that he had his gun with him indicated a
possessory interest in the gun, which corroborated the detective’s opinion that
gang members tended to keep their guns, and which factored into the probable
cause assessment.
Finally, we note that the court also took into consideration
defendant’s criminal record, which included prior weapons violations as well as
several violent crimes. A history
of similar offenses is also a factor to
be considered in the determination of probable cause. (See People
v. Kershaw, supra, 147 Cal.App.3d
at p. 760.)
The information in the affidavit must
be taken together and read in a common sense manner. (See, e.g., People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783.) Even if this were a doubtful case, it has
been held that doubtful cases of probable cause should be determined by the
preference accorded to warrants. (
on the assessment of probabilities in particular factual contexts—not readily,
or even usefully, reduced to a neat set of legal rules.†(Illinois
v. Gates, supra, 462 U.S. at p.
232.) “It is less than proof beyond a
reasonable doubt [citation]; less than a preponderance of the evidence
[citation]; and less than a prima facie showing [citation].†(Tuadles,
at p. 1783.) Viewing
the totality of the circumstances, we agree with the trial court’s conclusion
that the affidavit established a fair probability that firearms would be found
at defendant’s residence or inside his vehicle, and that the affidavit did not
contain information so stale that it could not support a reasonable probable
cause determination. Accordingly, we
need not address appellant’s claim that the good faith exception to the
exclusion requirement is inapplicable.
The motion to suppress evidence was properly denied.
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ,
J.
name="_ftn1" title="">[1] All further references to statutes are to the Penal Code
unless stated otherwise.
name="_ftn2" title="">[2] Subsequent to defendant’s plea, the People moved to dismiss
one count of making criminal threats (§ 422) with an arming enhancement (§
12022, subd. (a)(1)) (count 1); an additional count of possession of a firearm
by a felon with four priors (count 2); one count of possession of ammunition
(§ 12316, subd. (b)(1)) (count 4), and a serious felony allegation (§ 667,
subd. (a)(1)).
