P. v. Williams

Filed 6/17/08 P. v. Williams CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

After pleading no contest to one count of possession of a firearm by a felon (Pen. Code,  12021, subd. (a)(1))^[1]contained in a two-count information, appellant was sentenced to four years in state prison. He appeals, claiming error by the trial court in (1) denying his motion to suppress ( 1538.5) and (2) not conducting in camera interviews of the detective who executed the affidavit triggering the search warrant or the confidential informants whose information was relied upon by that detective. We reject those contentions and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2005, Contra Costa Deputy Sheriff Shawn Pate filed an affidavit, partially sealed and the remainder unsealed, in support of an application for a search warrant of appellants residence in San Pablo. The unsealed portions of the affidavit stated that Pate had probable cause, largely based on information given him by confidential reliable informants, (CRIs) to believe that appellant, a felon known as Dust, was (1) involved with the narcotic trade in North Richmond, (2) was a member of a street gang known as Project Trojans, and (3) was in possession of numerous firearms.

On the same day, the magistrate found there was probable cause and issued a search warrant allowing the Contra Costa Sheriffs Department to search appellants residence for firearms, ammunition, and related items.

The next day, January 28, 2005, that department executed the search warrant and found two Glock .40 caliber semiautomatic handguns in the residence, along with other evidence that it was, in fact, appellants residence. The officers arrested appellant then and there.

On August 19, 2005, the Contra Costa District Attorney filed an information charging appellant with possession of a firearm by a felon in count one and possession of a firearm by a violent felon ( 12021.1) in count two. The information also alleged that appellant committed both alleged offenses for the benefit of a street gang ( 186.22), had one prior strike conviction, and had served one prior prison term. ( 1170.12 & 667.5, subd. (b).)

On August 2, 2006, the court denied appellants motion to require disclosure of the identities of Detective Pates informants and to unseal the sealed portion of his affidavit. On October 18, 2006, it denied appellants motion to traverse the search warrant and suppress the evidence obtained from his San Pablo residence.

On January 8, 2007, appellant pled no contest to the first count charged in the information and admitted the prior prison term allegation, in exchange for the prosecutions agreement to move to dismiss the second count, the prior strike allegation, and the gang enhancement.

On February 22, 2007, the court sentenced appellant to the upper-term of three years in state prison on the count to which he had pled plus an additional year for the prior prison term enhancement, for a total of four years. Appellant filed a timely notice of appeal.

III. DISCUSSION

In support of the first part of his appeal, in which he contends the search warrant should have been quashed and the motion to suppress granted, appellant argues that (1) the allegations of Detective Pate in the unsealed portion of his affidavit were stale, (2) the affidavit did not provide any information demonstrating the reliability of the CRIs upon whose information Pate was relying, (3) the information contained in it was uncorroborated, (4) the good faith rule of United States v. Leon (1984) 468 U.S. 897 (Leon) should not apply, and (5) this court should review the sealed portion of the affidavit to determine if there was, in fact, probable cause to issue the search warrant.

We have no difficulty in rejecting the first three arguments made by appellant, therefore find the fourth irrelevant, but have done exactly as appellant has requested in his fifth argument and determined that the sealed portion of the Pate affidavit provides even further and more specific probable cause supporting issuance of the search warrant.

Before getting into an analysis of these contentions, however, a brief discussion of the relevant legal principles is appropriate. Because the Fourth Amendment to the United States Constitution is the controlling law as to the propriety of searches and seizures, our Supreme Court has often noted that the governing precedent on the application of that provision to a courts issuance of search warrants is Illinois v. Gates (1983) 462 U.S. 213 (Gates). In one of its most recent discussions of the principles articulated in Gates, the court explained them as follows: [In Gates], the court embraced a totality of the circumstances approach under which [t]he 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.] [] The court observed that probable cause is a fluid conceptturning on the assessment of probabilities in particular factual contextsnot readily, or even usefully, reduced to a neat set of legal rules. [Citation.] And yet, the court noted, there are established guidelines for determining the existence of probable cause: Our decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informants tip by independent police work . . . . [A]n affidavit relying on hearsay is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented. [Citation.] The court explained that the factors set out in its prior casesi.e., an informants veracity, reliability, and basis of knowledgeare all highly relevant factors that, together or separately, usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place. [Citation.] The court further explained that a deficiency in one [of these factors] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. [Citation.] [] Addressing anonymously obtained information, the Gates court observed, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise perfect crimes. While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not. [Citation.] In this regard the court noted that when an informant is anonymous and untested, [i]t is enough, for purposes of assessing probable cause, that [c]corroboration through other sources of information reduce[s] the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay. [Citation.] (People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella).)

Guided by these principles, we will proceed to review appellants first three arguments as to why his motions to traverse the search warrant and to suppress the evidence secured by it should have been granted.

Appellants first argument regarding the staleness of the information provided in the Pate affidavit is rebutted by our reviewrequested, as noted, by appellant and approved by our Supreme Court (see People v. Hobbs (1994) 7 Cal.4th 948, 972-977 (Hobbs)of the sealed portion of the Pate affidavit. There, Detective Pate recites that a specific CRI whom he had used, successfully, in previous arrests on serious criminal charges, had specifically and recently verified the presence of a gun in appellants residence. Further, this recitation confirmed the information supplied by other CRIs in the unsealed portion of the affidavit that appellant keeps himself armed at all times while in the North Richmond. (Emphasis supplied.) Thus, the staleness argument of appellant simply does not work.

Appellants next two arguments can be dealt with together. They are, as noted, that the unsealed portion of the Pate affidavit provided neither any information demonstrating the reliability of any of his informants nor corroborating the information they supplied him. We disagree regarding the information in the unsealed portion, and our disagreement is compounded by our review of the additional information in the sealed portion.

As to the unsealed portion, it recites that Pate had spoken to both several confidential informants (CI) as well as [CRIs] who have all informed me that appellant is in possession of numerous firearms. It then goes on to state that [a]ll of the CIs as well as the CRIs state they have all seen Williams personally armed with a handgun on numerous occasions. Following that assertion are at least four additional assertions by Pate regarding statements or information given him by several or all of the CIs. This, even without reference to the sealed portion of the affidavit, clearly rebuts the uncorroborated part of appellants contention.

Regarding the alleged lack of any evidence of reliability of any of the informants, this too is easily rebutted. Thus, in the penultimate paragraph of the unsealed portion of the affidavit, Pate recites that (1) sheriffs records revealed that appellant is a member of the Project Trojan street gang and (2) appellant had prior arrests for narcotic sales and as a suspect in a previous homicide. It then concludes by noting that appellant has served several years within the state prison system. Finally, the sealed portion of the affidavit provides additional and very specific information attesting to the reliability of a CRI who provided critical information to Pate. This fully answers the reliability argument of appellant.

The fourth argument appellant advances is that the good faith exception to the exclusionary rule articulated in Leon, supra, 468 U.S. 897,^[2]should not apply and the fifth is that this court should examine the sealed portion of the Pate affidavit to see if it helps resolve any of the issues he raises. Our answers can be very brief: (1) we have no need to apply the good faith rule articulated in Leon because, as just discussed, there was and is no basis under the applicable law to either traverse the search warrant or exclude any evidence seized under it and (2) we have examined the sealed portion of the Pate affidavit and find it totally supportive of the lower courts orders.

As noted in our Introduction, appellant makes a separate and distinct second argument for reversal, i.e., that the trial court abused its discretion in not conducting in camera interviews of both Detective Pate and the relevant confidential informants. Appellants appellate counsel devotes, rather remarkably in our view, over twenty pages of his opening brief to this argument. Notwithstanding that, we have no difficulty in rejecting this argument for reversal.

First of all, and as appellant concedes in his briefs to us, we review a trial courts ruling as to whether such in camera examinations are or are not necessary for abuse of discretion. As our Supreme Court noted in Hobbs: [B]ecause the defendants access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. (Hobbs, supra, 7 Cal.4th at p. 973, emphasis supplied; see also, People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080; People v. Seibel (1990) 219 Cal.App.3d 1279, 1298; cf. also Evid. Code,  1042, subd. (c).)

There clearly was no abuse of discretion here. Appellants first motion, filed in May 2006, asked the trial court for an order to disclose: (1) the names and whereabouts of all the [CIs] and [CRIs]; (2) the names and whereabouts of persons from whom the [CIs] and [CRIs] obtained their information; and (3) the sealed portions of the affidavit for the search warrant. In those moving papers, appellant suggested, as an alternative to an order unsealing the sealed portion of the affidavit, that the court conduct an in camera hearing to determine whether portions of the affidavit should be unsealed. But nowhere in those moving papers was there any request to the trial court to personally examine eitherDetective Pate or any of the CIs or CRIsthe position now being urged by appellant.

At the hearing on this motion on August 2, 2006, before Judge David Flinn, appellants counsel argued that it was necessary for her and her client to know the identity of the CIs and asked the court to reveal the CI and CRI information . . . as it has an absolute bearing on [the alleged] gang enhancement, which is what makes this crime a strike . . . . A few minutes later, that counsel suggested that the court should conduct an in camera review, which would include bringing in the CIs to determine if there was exculpatory information regarding the charges against appellant. The most specific that counsel got as to what was requested was that there be an in-camera hearing where theyre brought in with suggested questions from either one of us. But, again, there was no mention of the court examining Detective Pate.

Judge Flinn adjourned the hearing for a few minutes to re-review both the sealed and unsealed portions of the Pate affidavit as well as the transcript of the preliminary hearing. When he returned to the bench, he denied the motion for discovery of the confidential informants and to unseal the sealed portion of the affidavit on the grounds that (1) the material he reviewed provided no reasonable cause for the court to believe . . . that the confidential reliable informant has exculpatory information of any sort that should be provided, (2) good cause is shown in the sealed portion as to why the confidentiality should be respected, and (3) he found nothing in that material which would lead to the conclusion that the [identities of a] CI or CRI should be divulged.

After Judge Flinn had stated his ruling, defense counsel offered no statement or comment suggesting that he had not addressed any relief her motion had sought.

Two weeks later, on August 16, 2006, appellant filed a motion to traverse the search warrant and suppress the evidence seized under section 1538.5. Again, appellants moving papers made no request for in camera questioning of Detective Pate by the court, but simply argued that the allegations in the unsealed portion of his affidavit were both too general and too stale to provide the requisite probable cause and that, overall, probable cause had not been shown. The memorandum of points and authorities in support of the motion concluded by reiterating that appellant sought both to quash the warrant and suppress evidence as well as reveal the informants identities where appropriate, and disclose the affidavits sealed portions with any necessary redactions.

A hearing on this motion took place on October 18, 2006, before Judge Leslie Landau. The hearing commenced with confirmation by the court that it had, indeed, conducted an in-camera review of the sealed portion of the affidavit. Then, and for the first and only time, the issue of the courts interviewing Pate came up, but only tangentially. A new counsel for appellant stated that she believed the Court did not, as part of that in-camera, do any independent questioning of the detective who authored the warrant affidavit. Judge Landau confirmed that this was correct and, a few seconds later, the deputy district attorney present noted that Pate is here so if we need to go in-camera, we can.

Notwithstanding that comment by the prosecution, once again no request was made for an in camera interview of Pate by the court nor for any in camera interviews of a CI or CRI. Rather, appellants counsel proceeded to argue that the unsealed portion of the Pate affidavit was too vague, general and conclusory, and that what was required was Pates claimed basis of knowledge, the claimed incident. That counsel concluded her argument by summarizing appellants specific requests to the court, i.e., that it: (1) make a finding whether this affidavit presents proof of . . . the reliability of each identified source of information; (2) make a similar finding regarding whether that information was capable of corroboration; and (3) provide an advised ruling on staleness because of the many references to a six-month period in the unsealed portion of the affidavit. Once again, we find no request for either an interview of Pate or any or all of the CIs or CRIs.

In light of all this, we conclude that appellants extended argument that one or the other of these two judges should have conducted an in camera hearing to, specifically, question both Pate and one or more of the informants is both belated and waived.

Even if that is not the case, as noted earlier, like Judges Flinn and Landau, we have also reviewed the sealed portion of the Pate affidavit, and conclude that it provides (1) no exculpatory information but, rather, (2) specific and verifiable information regarding the reliability of both the CRI and the information provided by him or her regarding the presence of weapons at appellants residence, and (3) should have clearly remained sealed because of the danger its publication might pose to that CRI.

IV. DISPOSITION

The orders appealed from are affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1]All statutory references are to the Penal Code, unless otherwise noted.

^[2]See also regarding the meaning and application of that case, Camarella, supra, 54 Cal.3d at pages 596-597 & 602-607.