P. v. Byrd

Filed 7/30/07 P. v. Byrd CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Lisa M. Chung, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

INTRODUCTION

The issue in this appeal is whether, after excising the alleged intentional or reckless misstatements from the search warrant affidavit, a finding of probable cause is still justified. We find that the evidence remaining in the affidavit is sufficient to find probable cause. We affirm.

FACTS AND PROCEDURAL HISTORY

Los Angeles County Sheriffs Department officers searched appellants Lancaster single-family residence at 351 E. Avenue K, on May 3, 2005, where they discovered marijuana and ammunition. The search was conducted pursuant to a search warrant supported by an affidavit from Los Angeles County Deputy Sheriff Daniel J. Wolanski alleging appellant was routinely selling marijuana at his residence.

Deputy Wolanski, an officer for more than 15 years with extensive training and experience relating to narcotics offenses, had qualified as a narcotics expert witness in prior court cases. In the present case, an anonymous informant told the officer, on or about February 6, 2005, that a man named Charles Byrd was selling marijuana at 351 E. Avenue K during all hours of the day and night. According to the search warrant affidavit, Deputy Wolanski and Los Angeles County Deputy Sheriff Kevin Haines conducted four surveillances of the home at 351 E. Avenue K during the month preceding the presentation of the search warrant and affidavit to the magistrate. They observed many people park near the home, often in the driveway, and enter the home for several minutes, conduct consistent with the sale of illegal narcotics.

Three days prior to the presentation of the search warrant and affidavit to the magistrate, Deputy Haines stopped appellant in his car and searched it, uncovering marijuana and approximately $5,000 in small denomination bills. The officer cited appellant for possession of marijuana after appellant provided his home address and asserted the marijuana was solely for personal use. Deputies Wolanski and Haines observed the same car at appellants residence on the day of submission of the affidavit. They confirmed through the Department of Motor Vehicles that appellant was registered at that address and learned through official police sources that appellant had a prior conviction for possession of cocaine in 1992 and a prior arrest for possession of marijuana in 2002. The search of appellants residence ensued pursuant to the warrant.

Appellant filed a motion to traverse the search warrant and requested an evidentiary hearing in accordance with Franks v. Delaware (1978) 438 U.S. 154 (Franks). The trial court conducted a hearing to establish whether there was sufficient basis for an evidentiary hearing pursuant to Franks. Appellants motion alleged Deputy Wolanski had made intentional or reckless misstatements in the affidavit regarding the surveillance of the premises, based on Los Angeles County Sheriffs Department Deputy Daily Worksheets, which were inconsistent with the statements in the affidavit. For purposes of the motion, the trial court excised the deputies surveillance of the premises from the affidavit. The court found that the anonymous informants statement alone was stale without corroboration, but that it was sufficiently corroborated by the stop and search of appellants car, revealing marijuana and a large amount of small denomination bills, in conjunction with the appellants prior conviction for possession of cocaine and arrest for possession of marijuana. The court examined the excised affidavit and found probable cause. Thus, it denied both the motion to traverse the search warrant and the request for an evidentiary hearing.

Appellant subsequently pled no contest to possession of marijuana for sale

(Health & Saf. Code,  11359) and admitted one prior strike conviction (Pen. Code,  1170.12, subds. (a)-(d) & 667, subds. (b)-(i)). He was sentenced to 32 months in state prison, and charges regarding the ammunition (Pen. Code,  12316, subd. (b)(1)) were dismissed.

DISCUSSION

I. TEST FOR AN EVIDENTIARY HEARING REQUEST

The United States Supreme Court held in Franks, supra, 438 U.S. 154, that a defendant is entitled to an evidentiary hearing regarding an affidavit in support of a search warrant, provided the 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 affidavits remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. (People v. Bradford (1997) 15 Cal.4th 1229, 1297.) We avoid the first element, as the trial court did, because the second element is unsatisfied, that is, appellant has not demonstrated the excised statements were material to the determination of probable cause.

We determine the materiality of the excised statements by applying a totality of the circumstances test to the remaining portions of the affidavit to ascertain its sufficiency to justify a finding of probable cause. (People v. Bradford, supra, 15 Cal.4th 1229, 1297.) In the instant case, the remaining portion includes the anonymous informants information, appellants prior record, the stop and search of appellants car, and Deputy Wolanskis observation of that car at the address given by the informant on the day the deputy submitted the affidavit.

II. THE ANONYMOUS INFORMANTS INFORMATION

An anonymous informants information must be corroborated by other evidence to be considered for probable cause. (People v. Kershaw (1983) 147 Cal.App.3d 750, 758.) It can be corroborated by external probative indications of criminal activity akin to the informants description. (Id. at p. 759.) Although not dispositive, a prior narcotics record may help to corroborate an informants description of narcotics activity. (People v. Scott (1968) 259 Cal.App.2d 268, 275.)

In the instant case, three sources corroborate the informants information. First, Deputy Hainess search of appellants car uncovered $5,000 in small denominations, in addition to actual marijuana, consistent with the illegal sale of narcotics as described by the informant. Second, appellant has a prior conviction for possession of cocaine and a prior arrest for possession of marijuana. Finally, the deputies observed appellants car, the same car involved in the traffic stop, in the driveway of the address the informant provided as the location of the illegal sale of marijuana. The combination of these three factors is sufficient to corroborate the information provided by the anonymous informant.

Appellant contends the anonymous informants information should nonetheless be excluded from the probable cause determination as stale. While stale information may generally be of little value in the determination of probable cause, the passage of time need not deprive the information of all of its value where there are special circumstances to justify concluding the alleged illegal activity has continued through the passage of time. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.) Deputy Haines stopped and searched appellants car just three days prior to the submission of the affidavit. Deputies Wolanski and Haines observed appellants car in the driveway of the residence on the day of the submission of the affidavit. These recent events justify the conclusion that appellant was still conducting illegal sales of narcotics as described by the informant three months earlier. Thus, the information is properly considered in the determination of probable cause, taking the staleness into consideration.

III. DEPUTY WOLANSKIS EXPERT OPINION

Deputy Wolanski used his extensive experience as a narcotics officer to determine that marijuana was being sold at 351 E. Avenue K and that the items sought to be seized are commonly found at such a place. Drug dealers are likely to store the drugs in their home. (People v. Cleland (1990) 225 Cal.App.3d 388, 393.) For this reason, seizure of evidence from a suspects person indicating he sells illegal narcotics, combined with an experts opinion that additional contraband will likely be found at that suspects residence, can justify the issuance of a search warrant for that suspects residence. (Ibid.) Deputy Haines stopped appellant in possession of marijuana and $5,000 in small denominations, a strong indicator of illegal street level sales of narcotics. Relying on this evidence, Deputy Wolanski formed an expert opinion that additional contraband was being stored and sold at appellants residence.

CONCLUSION

In conducting the totality of circumstances test on the remaining portion of the affidavit, we consider the anonymous informants corroborated account of illegal narcotics sales at appellants confirmed residence, appellants prior narcotics record, the seizure of the marijuana and suspicious money in appellants car, the appearance of said car in the residences driveway, and Deputy Wolanskis expert opinion that additional contraband was likely stored and sold at the residence. Taken as a whole, this remaining evidence is sufficient to justify a finding of probable cause. Thus, the excised portion is immaterial to the magistrates finding and appellant was therefore not entitled to a Franks evidentiary hearing. The trial court correctly denied the motion to traverse the search warrant and request for an evidentiary hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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