P. v. Mesiti
Filed 4/17/13 P. v. Mesiti CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK EDWARD MESITI,
Defendant and Appellant.
B233416
(Los Angeles
County
Super. Ct.
No. BA354654)
APPEAL from a judgment of the Superior Court of
County,
Anne
H. Egerton, Judge. Affirmed.
Tanya Dellaca, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Esther P. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Defendant and appellant Mark Edward
Mesiti filed a motion to traverse and quash two search warrants, arguing that
an initial warrant lacked probable cause and was facially defective, and that
the second was the fruit of the first.
By the same motion, Mesiti sought to suppress drug-related evidence
seized during the execution of the second warrant. (Pen. Code, § 1538.5.) The trial court denied Mesiti’s motion, and a
jury then convicted Mesiti of manufacturing a controlled substance, methamphetamine. (Health & Saf. Code, § 11379.6,
subd. (a).) On appeal, Mesiti contends
the trial court erred in denying his motion attacking the
FACTS
1. Background
In the summer of 2006, Mesiti lived
with his teenage daughter, Alycia, in a rented property at 3576 Alexis Avenue in the City of Ceres, in Stanislaus County. In August 2006, Mesiti’s girlfriend, Shelly
Walker, reported to police that Alycia was missing. Sometime later, Mesiti began living with
Walker and her daughter in Los Angeles.
On March
25, 2009, officers from the Ceres Police Department (CPD) executed a search
warrant, which is not involved in the current appeal, at the Alexis Avenue property in Ceres. Alycia’s buried remains were found in the
property’s backyard.
2. The
Stanislaus Warrant
On March
27, 2009, CPD Officer Keith Griebel presented an affidavit for a search warrant
in the Stanislaus County Superior Court concerning events related to Mesiti and Alycia. On the same day, a superior court judge in Stanislaus County signed a document entitled
“SEARCH WARRANT†that is the subject of Mesiti’s current appeal.
Officer Griebel’s affidavit in
support of the application for the search warrant included the following
information based upon his personal investigation, and upon information and
evidence provided to him by fellow investigating officers. Alycia was the subject of a missing persons
investigation beginning in August 2006. Walker reported Alycia
missing. At the time, Mesiti and Alycia lived at the Alexis Avenue property. Walker stated in her initial
missing person report that Alycia was supposed to go to a friend’s house in San Jose on August 11, 2006. On August 13,
2006,
Alycia called Walker. Alycia said
she was not in San Jose, but instead was camping
with “old friends.†She did not disclose
where. Walker reported Alycia missing on August 15, 2006.
On September
8, 2008, Detective Mark Neri
spoke to Alycia’s mother, Roberta Allen, “inquiring about the status of the
[missing person] case.†Allen said she
lost custody of Alycia to Mesiti in August or September
2005, and had not heard from Alycia since Mother’s Day of 2006.
On September
10, 2008, Detective Neri contacted Walker “and re-interviewed
her.†At that time, Walker said she and Mesiti were dating in the summer
of 2006. Around the time of early to
mid-August 2006, Walker understood that Alycia was
staying with friends in San Jose. Walker had planned on flying to San Jose on Sunday, August 13, 2006, to pick up Alycia, and
then drive her home to Ceres. On Saturday, August 12, 2006, or early Sunday, August 13, 2006, Walker spoke to Mesiti who told
her to drive to Ceres without picking up Alycia because her friends’ parents
were taking her home instead. Later on August 13, 2006, Walker overheard Mesiti talking on
the telephone with a female whom Walker believed was Alycia. When the phone call ended, Mesiti told Walker that Alycia was camping,
and would be back on Monday, August 14, 2006. Walker had no contact with Alycia
on Monday, August 14, 2006, and has had no contact
with her since that time. On August 15, 2006, Walker reported to the CPD that
Alycia was missing.
Detective Neri tried to speak with
Mesiti “on several occasions,†but Mesiti “made several excuses†why he could
not talk. The affidavit does not provide
any detail about the dates or timing of the occasions when Detective Neri tried
to talk to Mesiti. Read within the
framework of the affidavit, it appears that Detective Neri’s attempts to speak
to Mesiti were in the same general time frame of September 2008, when the
detective spoke to Allen and Walker.
Detective Neri finally spoke with Mesiti by telephone on September 10, 2008. Mesiti stated
that, at the time Alycia went missing, she had been dating a heroin user. On the weekend of Alycia’s disappearance, she
was supposed to be with her friend, Ashley, in San Jose. She left while Mesiti was “working on
something†in the house; he did not see the car in which Alycia left. Alycia took a backpack with some clothes and
other personal items, and one of her Chihuahua dogs on a leash. On the evening of Friday, August 11, 2006,
Alycia called Mesiti to say she had reached her destination. At about 5:00 or 6:00 p.m., on Sunday, August
13, 2006, Alycia called and told Mesiti that she did not go to Ashley’s home in
San Jose, but was actually camping with friends and would be back in “a couple
of days.â€
Mesiti told Detective Neri that
Alycia “seemed to be stressed out†about a family court matter at the time of
her disappearance. She was “upset
because she had to go to family court and discuss the family and domestic
violence cases that had occurred in the most recent past.†Mesiti said he did not believe Alycia ran
away because she left the majority of her clothing in her bedroom, and a second
Chihuahua at home.
Though the warrant does not disclose
specific dates, the affidavit indicates that during the course of the
investigation, CPD Sergeant James Robbins spoke to three family members. The family members stated that they were in
Poland when Alycia went missing. When
they returned, Mesiti told them that Alycia became addicted to heroin; he told
them that Alycia overdosed “the night before she ‘left.’ †According to Mesiti, he felt he could not
call police or an ambulance when Alycia overdosed because he had an “active
warrant.†Instead, Mesiti called a
friend, and they revived Alycia. Mesiti
told the family members that Alycia left on her trip the next day and did not
return. Sergeant Robbins “was told†by
the family members that Alycia was supposed to testify against Mesiti “in a
domestic violence case in which he was the suspect and the victim was [Alycia’s
mother] Allen.â€
The affidavit also recited that CPD
Officer Griebel confirmed with the Santa Clara District Attorney’s Office that
Alycia was to testify against Mesiti in a domestic violence case in which he
was a suspect and Allen was the victim.
The District Attorney’s Office also confirmed that Mesiti had been
incarcerated for prior domestic violence charges. The District Attorney’s Office informed
Officer Griebel that the absence of Alycia’s testimony caused a plea agreement
in the domestic violence case that resulted in Mesiti suffering only a fine
instead of jail time. Officer Griebel
learned from utility records that Mesiti paid utilities at the Alexis Avenue
property in Ceres through February 2007, six months after Alycia’s
disappearance.
On a date not stated in the
affidavit, Sergeant Sullivan talked to Mercedes Macias, the owner of the Ceres
residence where Mesiti had lived. Macias
said that, “a short time†after Mesiti moved out, she discovered a large hole
in the middle of the backyard covered with dirt and grass.
On March 25, 2009, a search warrant
was issued for the property at Alexis Avenue in Ceres. Police executed the warrant the same day, and
human remains were found buried in the backyard, wrapped in “a heavy black
plastic†and bound with duct tape. The
Stanislaus County Coroner’s Office determined the remains were Alycia’s through
dental records.
On March 26, 2009, officers spoke with Mesiti’s
sister, Diane Mesiti-Miller who said that Mesiti moved to Los Angeles to stay
with Walker. Mesiti-Miller informed
officers that Mesiti contacted her by email in November 2006 asking her to stay
out of the investigation of Alycia’s disappearance because he had launched his
own. The email included this
statement: “Let me make one thing clear
to you. Alycia did not runaway.â€
On March 27, 2009, CPD Detective
James Yandell contacted the FBI for assistance in locating Mesiti. CPD received information that Mesiti lived at
“2120 Bentley Ave., Apt. # 101, Los Angeles.â€
That same day, Detective Yandell and other officers from the CPD
travelled to Los Angeles, and set up surveillance of the Bentley Avenue location. A postal worker confirmed that he regularly
dropped off packages for Mesiti at that address.
Officer Griebel concluded his
affidavit with a series of statements based on his training and experience as a
police officer, including that “people involved in domestic disputes, including
homicide, will tend to hide evidence of their crime in places which [they have]
domain and control over.†Officer
Griebel further stated that “people will utilize a computer and the internet to
research [how] to both commit and hide their crimes. They also use computers to communicate with
co-conspirators as well as publish false or misleading information in order to
avoid detection and/or shift culpability.â€
Officer Griebel also stated that text messages on cellular telephones
and email messages, as well as address books “may help in identifying potential
witnesses and/or other suspects.â€
3. The
Execution of the Stanislaus Warrant
On March 27, 2009, six officers from
the CPD, along with three officers from the Los Angeles Police Department
(LAPD) executed the Stanislaus search warrant at 2120 South Bentley Avenue,
apartment No. 101, West Los Angeles.
Immediately upon entering the premises, CPD Detective Derek Perry
experienced a “burning sensation†in his throat and lungs, and on his
skin. Based on his prior experience as a
police officer, he believed a methamphetamine lab was in the apartment. The officers evacuated the apartment and transported
Mesiti to the police department station in West Los Angeles. During the transport, Detective Perry noticed
a chemical odor coming from Mesiti as well as burn marks on his hands and
forearms. In addition to Mesiti’s
appearance, Detective Perry noticed that Mesiti behaved aggressively, followed
by drowsy spells and outbursts of profanity.
4. The
Los Angeles Warrant
On March 28, 2009 a Los Angeles
County Superior Court judge signed a warrant commanding police to search the
premises at “2120 S. Bentley Avenue #101, West Los Angeles,†for evidence of
methamphetamine and materials used for the manufacture and sale of
methamphetamine. LAPD Detective Frank
Lyga presented the affidavit for the warrant.
Detective Lyga’s affidavit in support of the request for the search
warrant included the following information.
Detective Lyga is an experienced
narcotics officer. On March 28, 2009,
Detective Lyga received a request from a supervisor to respond to assist
officers of the CPD at the scene of a possible methamphetamine laboratory at
2120 South Bentley Avenue, West Los Angeles, inside an apartment. When he arrived at the scene, Detective Lyga
spoke to officers from the CPD who explained that they entered the apartment to
serve a search warrant. The officers
cleared the apartment, then, when one of the officers forced open the door of a
locked bathroom, he observed “numerous glass beakers and hoses.†Based on these observations, the officer
formed the opinion that the bathroom contained an active drug lab. The officers evacuated the apartment, and had
called for assistance from the LAPD.
Detective Lyga interviewed Detective Yandell regarding the items
observed in the bathroom. Based on his
experience, Detective Lyga formed the opinion that the apartment contained an
active methamphetamine lab.
5. Execution
of the Los Angeles Warrant
After obtaining the Los Angeles
warrant, LAPD officers returned to Mesiti’s apartment, and executed the search
warrant. LAPD Detective David Richardson
returned to the scene first, at about 8:00 p.m.
Inside the apartment, there were several packages with Mesiti’s name and
the address “2120 South Bentley Avenue, Apartment 101.†The apartment was “very cluttered†and “very
jumbled,†with “a lot of dirty items.â€
Inside a hallway bathroom, Detective Richardson located and photographed
a methamphetamine lab consisting of glassware, heating flasks, heating mantles,
gallons of solvents, support racks for laboratory grade glassware, and a fan to
ventilate fumes out of the bathroom.
Plastic containers with various different powders in each littered the apartment. Detective Lyga also returned to the
apartment. Detective Lyga and his fellow
officers recovered chemicals and substances consistent with the manufacturing
and production of methamphetamine.
6. The
Criminal Proceedings
The People filed an information
charging Mesiti with manufacturing a controlled substance, methamphetamine
(count 1; Health & Saf. Code, § 11379.6, subd. (a)); and child abuse
(count 3; Pen. Code, § 273a, subd. (a)).
the Stanislaus search warrant and the Los Angeles search warrant. As to the Stanislaus warrant, Mesiti
argued it was based on a “ ‘barebones’ †affidavit, and otherwise was
“lacking fundamental constitutional safeguards.†As to the Los Angeles warrant, Mesiti argued
that it was the fruit of the deficient, underlying Stanislaus warrant. Mesiti’s motion challenged the Stanislaus
warrant on two fronts. First, “[t]he
inartfully drawn out of county warrant form not only failed to state the city,
county or state where the property to be searched was located, it did not even
authorize a search of the premises.â€
(Boldface & italics omitted.)
Second, the motion argued that more than two years had passed from
Alycia’s death to the issuance of the Stanislaus warrant. During that time, Mesiti moved to Los Angeles
and occupied an apartment residence with Walker and her child. It necessarily followed that the Stanislaus
warrant was not supported by probable cause that evidence of a crime would be
found at the Los Angeles premises. As
argued in the motion, the affidavit in support of the Stanislaus search warrant
set forth a detailed description of the facts leading to the discovery of
Alycia’s body in Ceres, but it “lacked a single fact that would lead a person
to a reasonable suspicion that evidence of the Ceres homicide would be found in
the Los Angeles residence.†(Boldface
& italics omitted.) “The fact that .
. . Mesiti was a person of interest in an over two-year old homicide†did not
“in itself†show probable cause for a search of his present residence in Los
Angeles.
On February 1, 2010, the parties
argued the motion to the trial court.
The record before us on appeal shows that no testimony was taken at the
hearing on the motion; the arguments in the moving and opposing papers were
based on references to the face of the warrants being challenged by
Mesiti. At the conclusion of the
hearing, the court denied the motion for the following stated reasons:
“At the outset .
. . , addressing the issues raised regarding the Stanislaus County warrant, the
court disagrees with the characterization made by the defense as to the ways in
which the warrant and affidavit were deficient.
It may be that there were some technical irregularities, but I think
nothing that raises to the level of causing any sort of constitutional
error. I think it was crystal clear what
the – based upon the affidavit and the warrant, it was crystal clear what
premises were to be searched. [¶]
. . . I do not agree in the strongest terms about the allegation by
counsel that this was a bare bones affidavit.
I believe that it’s set forth in great detail the background of the
investigation. And while the death of
the victim in this case occurred quite some time ago, there was very fresh
evidence which gave rise to obtaining the search warrant and I believe that any
deficiencies that were accused or alleged sort of imperfections in the process,
were insufficient to cause this court to set that warrant aside.â€
Addressing the Los Angeles warrant, the court essentially
found that the original police entry into Mesiti’s apartment had been legal
under the Stanislaus warrant. As a
result, the ensuing Los Angeles warrant was proper.
The charges against Mesiti were tried to a jury. Before the cause was submitted to the jury,
the trial court granted Mesiti’s section 1118.1 motion as to count 3. The evidence at trial established the facts
summarized above in the search of Mesiti’s local residence under the Los
Angeles warrant. The jury returned a
verdict finding Mesiti guilty of manufacturing a controlled substance,
methamphetamine. The trial court
sentenced Mesiti to a total term of five years in state prison.
Mesiti
filed a timely notice of appeal.
DISCUSSION
I. Probable Cause
Mesiti claims his drug manufacturing
conviction must be reversed because the evidence of the offense was seized from
his residence in violation of his right to be free from unreasonable searches
and seizures under the Fourth and Fourteenth Amendments of the United States
Constitution and article I, section 13 of the California Constitution. Specifically, he argues that neither the
Stanislaus warrant nor the Los Angeles warrant were supported by probable
cause. Mesiti argues his motion to
traverse and quash the Stanislaus and Los Angeles warrants, and to suppress the
drug-related evidence seized from his Los Angeles apartment should have been
granted. We disagree.
A. Standard
of Review
Under Penal Code section 1538.5,
subdivision (a), a defendant may move to suppress evidence gathered in
violation of the state and or federal Constitutions. Here, Mesiti’s motion to suppress argued
there was no probable cause for either warrant, resulting in a violation of the
state and federal Constitutions. (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13 [no search warrant shall
issue except upon probable cause].) In reviewing a denial of a motion to suppress evidence, we defer to
the trial court’s factual findings, upholding them when they are supported by
substantial evidence; we then independently review the trial court’s decision,
based on the historical facts, that the search did not violate the Fourth
Amendment. (People v. Memro (1995) 11 Cal.4th 786, 846.)
“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 . . . including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair
probability that . . . evidence of a crime will be found in
a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a ‘substantial
basis for . . . [concluding]’ that probable cause
existed.†(Illinois v. Gates (1983) 462 U.S. 213, 238-239.) A
warrant is presumed valid; the defendant bears the burden of proving a warrant
is not supported by probable cause. (
393 (Amador).) Accordingly, we pay great deference to the
magistrate’s determination of probable cause on review. (People
v. Tuadles (1992) 7 Cal.App.4th 1777, 1783; see Illinois v. Gates, supra,
at pp. 236-241.)
Mesiti
contends the affidavit in support of the Stanislaus search warrant did not
support a finding of probable cause that evidence related to Alycia’s death in
2006 would be found in Mesiti’s Los Angeles
apartment in 2009. Mesiti argues the
affidavit fails to show a nexus between the discovery of Alycia’s remains in
Ceres, and the apartment on South Bentley Avenue in Los Angeles. We disagree.
Mesiti
was Alycia’s father; they lived together at the property where Alycia’s body
was discovered. He did not report Alycia
missing, his girlfriend did. Mesiti left
the property about six months after Alycia disappeared. He told his sister to stay out of the missing
person investigation, and told his sister that he knew Alycia did not run
away. When interviewed by police, Mesiti
stated that when Alycia went missing she left behind personal possessions such
as clothing and a computer. At the time
Mesiti was vacating the premises, the landlord observed Mesiti’s sister helping
to clean out items from the home.
Officer Griebel stated that
in his training and experience as a police officer, “people involved in
domestic disputes, including homicide, will tend to hide evidence of their
crime in places which [they have] domain and control over.†Officer Griebel further stated that “people
will utilize a computer and the internet to research [how] to both commit and
hide their crimes. They also use
computers to communicate with co-conspirators as well as publish false or
misleading information in order to avoid detection and/or shift
culpability.†Officer Griebel also
stated that text messages on cellular telephones and email messages, as well as
address books “may help in identifying potential witnesses and/or other
suspects.â€
Based
on the totality of the circumstances, we are satisfied there was substantial
evidence to show a fair probability that evidence related to Alycia’s death
would be found at Mesiti’s new residence in Los Angeles even two and one-half
years later. This was not a search of a
mere “person of interest†in a cold case homicide. This was a search of a home of the parent of
a victim whose homicide or the disposal of her body took place in the prior
family home. There was a fair
probability that as the victim’s father, Mesiti, may have retained Alycia’s
personal effects, electronic communications or the computer he owned during the
time of her disappearance. These items,
Officer Griebel indicated, would be evidence of a crime and likely still in his
possession.
Mesiti’s
argument that there are “stale facts†in the affidavit does not persuade us to
find otherwise. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 [information
that is remote in time may be deemed stale and thus unworthy of consideration
for probable cause in a warrant].) Given
the totality of the circumstances, in particular the special relationship
between Mesiti
and the victim, the objects of the search, we
disagree that the remoteness of the crime must as a matter of law defeat a
finding of probable cause. Mesiti argues
that any evidence related to Alycia’s death had to be several months to several
years old by the time the affidavit was presented. Mesiti ignores that the discovery of Alycia’s
body was freshly discovered evidence.
Before the body was discovered, there was not a homicide to
investigate. Once the body was
discovered, with a connection to Mesiti, a search warrant was obtained. Though the death occurred more than two years
ago, there was a nexus to Mesiti’s current home based upon the familial
relationship, and the tendency of domestic
violence suspects, as noted by Officer Griebel, to keep materials related
to the violence in areas under a suspect’s control.
II. The Form and Content of the Stanislaus
Warrant (Particularity)
Mesiti
next contends the Stanislaus warrant was facially defective because it failed
to describe with sufficient particularity the place to be searched and the
items to be seized. In making his
argument, Mesiti focuses on the four-page warrant itself, disregarding CPD
Officer Griebel’s affidavit. Mesiti
claims that after the warrant was issued in Stanislaus, it was faxed to Los
Angeles where it was executed by waiting CPD officers, assisted by the
LAPD. Mesiti asserts: “The affidavit was not referenced in the
search warrant and was not attached [to the search warrant] when the [search
warrant] was faxed†to Los Angeles from Stanislaus County. We find the search warrant was not facially
defective.
A
search warrant must particularly describe the place to be searched so that it
limits the search to areas which probable cause permits and avoid exploratory
searches. (Amador, supra, 24 Cal.4th
at p. 392.) In short, the particularity
requirement precludes issuance of a warrant authorizing a fishing expedition in
any and all waters at the discretion of the police officers executing the
warrant. At the same time, complete
precision in describing the place to be searched is not required; if a
description in a warrant allows the officer executing the warrant to reasonably
ascertain and identify the place intended to be searched under the warrant, the
warrant will pass constitutional particularity requirements. (Ibid.) Thus, where part of the description of the
premises to be searched is inaccurate, but the description has other parts that
identify the place to be searched with particularity, searches pursuant to such
warrants have been “ ‘routinely upheld.’ †(Amador,
supra, at p. 392, quoting United
States v. Gitcho (8th Cir. 1979) 601 F.2d 369, 371.) The test for determining the sufficiency of
the description of the place to be searched is whether the place to be searched
is described with sufficient particularity “ ‘as to enable the executing
officer to locate and identify the premises with reasonable effort, and whether
there is any reasonable probability that another premise might be mistakenly
searched.’ †(Amador, supra, at p. 393, quoting United States v. Gitcho, supra, at p. 371.)
While
the address reflected in the Stanislaus warrant and affidavit was incorrectly
identified the property as 2120 Bentley Avenue, rather than South Bentley
Avenue, and identified the property as being in Los Angeles, rather than in the
neighborhood of Los Angeles known as West Los Angeles, the warrant described
with particularity the exterior of the apartment, and the efforts of the CPD
officers to verify that Mesiti resided at the apartment building, in a particular
unit (No. 101). There was no inaccuracy
in the description of the unit (No. 101) authorized to be searched. There was no reasonable probability that
another premises might have been mistakenly searched by the CPD officers.
As
for Mesiti’s assertion that the affidavit was not referenced in the search
warrant and was not attached to the search warrant when the search warrant was
faxed to Los Angeles from Stanislaus County, he either does not include a
reference to the record, or the references that he does include do not support
his claim.
proved up by the affidavit, and the fax codes printed on the pages of the
documents in the record show that 20 pages were faxed from Stanislaus to Los
Angeles. In Mesiti’s motion to traverse,
he presented the search warrant and affidavit together. We see no evidence showing that the
four-page Stanislaus warrant was faxed to Los Angeles without the supporting
affidavit. There was no evidence taken
on this issue at the time of the hearing on Mesiti’s motion to quash.
Mesiti also contends the Stanislaus
warrant “imposed no meaningful restriction on the items to be searched and
seized.†He argues the warrant did not
identify him as a suspect, and thus unconstitutionally allowed an overbroad
seizure of items not connected to any specific person. He argues these defects were not cured by the
affidavit because it was not referenced in the warrant and not attached to the
warrant when it was faxed. For the
reasons explained above, we find the evidence shows the affidavit was attached
to the warrant. The entire document
sufficiently focused on evidence related to Mesiti and Alycia.
III. Good Faith
Mesiti
contends the good faith reliance exception (see United States v. Leon (1984) 468 U.S. 897 (Leon)) does not apply in his case.
Under Leon, evidence seized
pursuant to a defective search warrant is admissible if the executing officer’s
reliance on the warrant was objectively reasonable. Even if our determination of probable cause
is incorrect, we find the good faith reliance exception applies.
The
good faith reliance exception “is not a magic lamp for police officers to rub
whenever they find themselves in trouble [in executing a warrant].†(People
v. Hulland, supra, 110
Cal.App.4th at p. 1656.) As the
United States Supreme Court explained in Leon,
the suppression of evidence remains an appropriate remedy in a variety of
circumstances. Where an affiant misled
the magistrate who issued the warrant with information the affiant knew or
should have known was false, or the magistrate wholly abandoned his judicial
function, or the warrant was based on an affidavit so lacking in indicia of
probable cause as to render an executing officer’s belief in the existence of
probable cause “entirely unreasonable,†or if the warrant itself is facially
deficient, suppression may still be proper.
(Leon, supra, 468 U.S. at p. 923.)
But, as the Supreme Court reasoned in Leon: “suppressing evidence
obtained in objectively reasonable reliance on a subsequently invalidated
search warrant cannot justify the substantial costs of exclusion,†as long as
the law enforcement officer acted in good faith. (Id. at
p. 922; see also United States v. Ross (1982)
456 U.S. 798, 823.)
In
Mesiti’s case, the officers who executed the Stanislaus warrant acted in good
faith reliance on the warrant. There is
nothing in the record to show that any of the facts in the supporting affidavit
were false. Although the warrant might
have been more carefully crafted, the record does not support a conclusion that
the magistrate wholly abandoned his judicial function. The warrant and affidavit included extensive
facts showing an investigation, and we see nothing to support the conclusion
that the executing officers should have known there was no support for the
magistrate’s probable cause determination.
As we explained above, we do not find the warrant facially defective.
IV. Pitchess
Discovery
In
September 2010, Mesiti filed a motion for discovery
of the personnel records of several police officers. (See Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess);
see Pen. Code, § 832.5; Evid. Code, § 1043 et seq.) Mesiti
sought review and disclosure of relevant materials concerning the following
officers: CPD Detectives Yandell, Perry,
and Officer Griebel; former CPD Detective Neri; and LAPD Detective Lyga. The motion sought discovery of complaints by
members of the public of dishonesty, falsification of police reports, and
similar categories bearing on credibility.
The trial court denied Mesiti’s Pitchess
motion as to LAPD Detective Lyga.
At the hearing, Mesiti’s counsel
conceded that all of Detective Lyga’s acts had ensued from the issuance and
execution of the Stanislaus warrant connected with the CPD. The court found no good cause for
discovery as to Detective Lyga because there was no allegation of
At a later hearing, new counsel appeared on behalf of Mesiti, and conceded that there were defects in the
The court then denied the motion as to the CPD officers.
Thereafter, Mesiti’s new counsel, filed a second Pitchess motion, seeking discovery as to all of the officers noted
above, and also CPD Officer Jeremy Caron.
The trial court granted Pitchess
discovery as to CPD Officer Caron, Detectives Yandell, and Perry, and LAPD
Detective Lyga. The court found “no
basis†for discovery of the personnel records of CPD Detective Neri or Officer
Griebel based on the prosecutor’s representation that they were not going to be
called as witnesses in the drug matter being tried in Los Angeles, and thus
would not be subject to impeachment with anything in their personnel files.
camera review of records from the CPD and LAPD to determine whether relevant,
discoverable material existed. The court
ordered discovery of items as to LAPD Detective Lyga; the court found no discoverable
items as to CPD Officer Caron and Detectives Yandell and Perry.
Mesiti
requested our court to conduct an independent
review to determine whether the trial court conducted a proper hearing, and
made a proper ruling after the in camera hearing on his Pitchess motion.
(See People v. Mooc (2001) 26
Cal.4th 1216.) We
have reviewed the transcript of the in camera hearing and conclude the trial
court conducted the hearing properly, describing the nature of all complaints,
if any, against the officers, and we find the court did not abuse its
discretion in ordering the custodian of records to disclose discovery as noted
above.
The
judgment is affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
GRIMES,
J.
name="_ftn1" title="">[1]
appeal, Mesiti does not dispute that the Stanislaus warrant authorized the
police to conduct a search. His
contention that the warrant was facially defective for lack of specificity in
describing the place to be searched and the property to be seized will be addressed
below.
name="_ftn2" title="">[2] The
search warrant affidavit references certain law enforcement officers as “Det.,â€
and “Sgt.†We assume these are short for
Detective and Sergeant, respectively, and refer to them as such.
