Filed 7/27/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085193
v. (Super.Ct.No. FVI19002475)
GEORGE VASQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Zahara T.
Arredondo, Jay H. Robinson and Michael S. Dauber, Judges. Affirmed.
Noriega Law Firm and Lauren A. Noriega for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, A. Natalia Cortina and Stephanie H. Chow, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
George Vasquez appeals from a judgment entered after he pled guilty to firearm
charges following the denial of his motions to unseal a search warrant affidavit, to
1
traverse and quash the search warrant, and to suppress evidence. We conclude the trial
court properly denied his motions and affirm.
FACTUAL BACKGROUND
A. The Search Warrant and Affidavit
On December 26, 2018, Deputy Ryan Brosowske of the San Bernardino County
Sherriff’s Department applied for a warrant to search Vasquez’s residence on Lakota
Road in Apple Valley. Brosowske’s affidavit and statement of probable cause contained
both a public portion and a portion that he requested be sealed, which consisted of
statements from a confidential informant.
In the public portion of the affidavit, Brosowske attested to the following facts.
On August 10, 2017, Brosowske located a photograph posted to the public social media
page for “George Vasquez,” which depicted a man pointing a handgun at the camera and
bore the caption, “ ‘I DON’T NEED PERMISSION TO PROTECT MYSELF, DEFEND
MY FAMILY, OR STAND MY GROUND.’ ” Brosowske identified the man in the
photograph as Vasquez from the photograph on Vasquez’s California driver’s license,
and a criminal record search revealed that Vasquez was restricted from possessing
firearms as a result of a 2004 felony conviction for willful infliction of spousal injury
(Pen. Code, 237.5, subd. (a)). 1 On the basis of this information, Brosowske and other
officers from the High Desert Regional Gang Enforcement Team (the investigators)
began investigating Vasquez for possession of illegal firearms.
1 Unlabeled statutory citations refer to the Penal Code.
2
The investigators obtained a warrant to search what they believed to be Vasquez’s
current residence on Tamarisk Avenue in Hesperia (the “Tamarisk warrant”). A records
check had revealed that address listed on his driver’s license, and a police report dated
June 27, 2016, stated that officers responded to that address in response to an allegation
that Vasquez had violated a domestic violence restraining order against him by
“point[ing] a firearm at his wife.” 2
The investigators were unable to execute the Tamarisk warrant, however, because
when they attempted to do so on August 30, 2017, they learned from the current tenant
that Vasquez had recently moved out. The tenant provided two telephone numbers for
Vasquez, one of which was for a landline registered to Vasquez’s sister-in-law, but
surveillance of her residence did not reveal his location.
After making multiple unsuccessful attempts over the next several months to
discover Vasquez’s current residence, the investigators obtained information on his
whereabouts from a confidential informant. Based on that information, as well as
surveillance conducted on December 21, 2018, they located Vasquez leaving an
apartment on Lakota Road. Vasquez exited the garage attached to the apartment in a
2016 Nissan, which matched the description of the vehicle registered to him. During
surveillance, the investigators also saw Vasquez enter the garage from a door inside the
apartment and leave the apartment in the morning to drive his wife to work. Upon
returning, he parked his car in the garage and remained at the apartment.
2 In his affidavit, Brosowske incorrectly listed the date of the police report as June
27, 2017.
3
Based on information from the informant about Vasquez’s possession of firearms,
as well as the fact that, “[t]hroughout the investigation, Vasquez continued to post
[photographs of] firearms to his public social media pages,” Brosowske believed that a
search of the apartment on Lakota Road would “likely yield the recovery of illegal
firearms and narcotics.” Brosowske thus sought a new search warrant for the apartment
on Lakota Road. The warrant identified the persons and places to be searched as all
rooms, storage areas, garages, and vehicles associated with the residence, as well as all
persons present.
The court issued the search warrant and also granted Brosowske’s request that
page 9 of the affidavit be sealed to protect the identity of the informant and the
confidentiality of official information privileged under Evidence Code section 1040
through 1042. 3
B. The Search of Vasquez’s Home
On the morning of December 28, 2018, Brosowske and other officers executed the
warrant and searched the apartment where Vasquez was living with his wife, Melissa,
and their three minor children.4 Inside Vasquez and Melissa’s bedroom, they found six
firearms, including a revolver on top of one of the nightstands and an AK-47-style rifle in
a carboard box next to the other nightstand. They also found ammunition; a backpack
containing approximately $1,300 in cash and bottles of prescription pills; a large tote bag
3 References to the sealed portion of the affidavit refer to page 9.
4 Because she and Vasquez share the same last name, we refer to Melissa
Vasquez by her first name. We intend no disrespect.
4
containing approximately one and a half pounds of marijuana and marijuana packaging
paraphernalia; and a digital scale bearing the residue of marijuana and a white powdery
substance. In the garage, they found more marijuana packaging paraphernalia and a
loaded revolver wrapped in a towel inside a cooler.
C. The Charges and Plea Agreement
In September 2019, the People charged Vasquez with seven counts of being a
felon in possession of a firearm (§ 29800, subd. (a)(1)), one count of unlawful possession
of ammunition (§ 30305, subd. (a)(1)), one felony count of possession for sale of a
controlled substance (Health & Saf. Code, § 11594), and one misdemeanor count of
possession for sale of marijuana (Health & Saf. Code, § 11359, subd. (b)).
At the preliminary hearing, Brosowske testified that all of the firearms they found
were unlocked, accessible, and operational. He said that, after the search, Melissa told
him that Vasquez sold marijuana. She also said that all of the firearms belonged to her
and that she had been intending to purchase a safe for them but had not yet done so.
During her testimony, Melissa denied telling Brosowske that Vasquez sold marijuana and
said the marijuana found in their bedroom belonged to her, for medical purposes. She
also denied admitting that she did not have a gun safe and said that all of the firearms
seized were locked inside safes to which only she had access. The trial court dismissed
one of the firearm counts and the two drug counts and held Vasquez to answer for the
remaining counts.
5
Both before and after the preliminary hearing, Vasqez filed multiple rounds of
motions to unseal the sealed portion of the warrant affidavit (page 9), to traverse and
quash the warrant, and to suppress evidence, all of which the trial court denied.
In March 2024, the People filed an amended complaint eliminating the drug
charges and alleged seven counts of being a felon in possession of a firearm and one
count of unlawful possession of ammunition. On December 6, 2024, Vasquez rejected
the People’s offer of two years in prison in exchange for a guilty plea to one count of
being a felon in possession of a firearm. He instead accepted the trial court’s indicated
sentence of two years of formal probation in exchange for pleading guilty to all eight
counts.
Following the entry of judgment on his plea, Vasquez filed a timely appeal.
(§ 1538.5, subd. (m); People v. Hobbs (1994) 7 Cal.4th 948, 955-957 (Hobbs) [After a
guilty plea, a defendant may seek appellate review of his motions to quash and traverse
the search warrant and to suppress evidence.].)
DISCUSSION
A. Motions To Unseal, Traverse, and Quash
Vasquez raises multiple challenges to the trial court’s denial of his motions to
unseal the confidential portion of the warrant affidavit and to traverse and quash the
warrant. As we will explain, we conclude each argument lacks merit.
1. Additional Background
a. The first in camera hearing
6
Before the preliminary hearing, Vasquez filed two motions—a Hobbs motion to
unseal the sealed portion of the affidavit and a combined motion to traverse and quash the
warrant.
In his Hobbs motion, Vasquez argued that he had “good reason to believe that the
confidential informant in this matter is none other than” his sister-in-law, L.P., who, he
claimed, “continues to place false calls to police regarding absurd, yet serious claims
against [him].” To support his belief that L.P. was the confidential informant, he asserted
that L.P. was the source of the 2016 domestic violence allegation referenced in the
affidavit.
In his combined motion to traverse and quash, Vasquez argued that the affidavit
contained material inaccuracies regarding the 2016 police report and the social media
photograph of him with a gun. Specifically, he argued that the affidavit failed to mention
that he was not arrested for the alleged domestic violence incident, that the allegation
against him was determined to be unfounded, and that the restraining order against him
protected his ex-wife, not his current wife. Regarding the photo, he argued that it was
“stale” evidence because the August 2017 social media post Brosowske saw was simply a
function of the social media site’s “ ‘memory’ ” feature. According to him, the
photograph had originally been posted “on or around 2011.” Vasquez argued that these
material falsehoods and omissions demonstrated that the showing of probable cause was
insufficient and that the warrant should therefore be quashed and the evidence obtained
during the search suppressed under section 1538.5. He requested an evidentiary hearing
under Franks v. Delaware (1978) 438 U.S. 154 to cross examine Brosowske about the
7
inaccuracies if the court determined that he made the requisite preliminary showing—i.e.,
that Brosowske knowingly or recklessly made a false statement that was necessary to the
finding of probable cause.
The People opposed both motions. They argued that Vasquez was not entitled to a
Hobbs hearing on whether to unseal the confidential portion of the warrant affidavit
because he failed to show that the confidential informant is a material witness who would
provide exonerating evidence. Regarding the motion to traverse and quash, the People
denied that the affidavit contained material falsehoods or omissions or was based on stale
evidence. As to the affidavit’s reference to the 2016 police report, the People argued that
Brosowske provided that information not as evidence that Vasquez had previously
engaged in domestic violence but as evidence that he lived at the Tamarisk Avenue
address listed on his driver’s license. The People attached the police report to their
opposition in order to show that the report was relevant for the additional reason that it
noted the presence of firearms at Vasquez’s residence. Finally, the People argued that the
evidence of firearm possession was not stale by the time the investigators obtained the
warrant for Vasquez’s current residence because he continued to post photographs of
himself with firearms on social media during the investigation.
When the parties appeared in court for the preliminary hearing, the trial court
(Judge Jay Robinson) proposed addressing Vasquez’s two motions before the preliminary
hearing, in an in camera hearing, and both parties agreed to that approach. Vasquez
submitted a list of questions that he requested be answered during the in camera hearing.
8
The court reviewed the search warrant affidavit in an in camera hearing, on the
record, and in the presence of the prosecutor and Brosowske, the warrant affiant. The
court addressed the Hobbs motion first, concluding that “the sealed portion of the
affidavit . . . was properly sealed” to protect the identity of the confidential informant—
who, contrary to Vasquez’s belief, was not his sister-in-law, L.P.
The court then addressed the combined motion to traverse and quash. The court
asked Brosowske all of Vasquez’s submitted questions, many of which ended up being
irrelevant because they assumed L.P. was the confidential informant. Then, after asking
Brosowske several questions of its own regarding Brosowske’s research into the 2016
police report and the photographs Vasquez posted during the investigation, the court
denied the motion, concluding that Vasquez failed to satisfy his burden of showing that
Brosowske made material intentional or reckless misrepresentations or omissions. The
court explained: “Here, Detective Brosowske has responded to the Court’s questions and
the defense questions with further facts and evidence that would go to explaining
investigative steps that were taken and facts obtained through that investigation that
further incriminates Mr. Vasquez and supports the probable cause analysis for the …
warrant.” The court concluded the in camera hearing by stating: “The Court orders that
the transcript of these proceedings be sealed, and I’m going to order that the sealed
portion of the affidavit remai[n] sealed, and we will return it to the clerk’s office …. [¶]
I’m going to go out, announce the decision in an overall fashion, and . . . proceed from
there.”
9
When the court resumed the open court hearing, it announced its ruling denying
“the motion to traverse” only and failed to state that it had also denied the Hobbs motion
and motion to quash. However, the minute order for the hearing reflects the court’s
ruling on the Hobbs motion in the following statement: “In camera hearing concludes,
Court orders transcript of in camera hearing sealed. Search warrant VVSW19-1420 is
ordered returned to the clerk’s office.”
b. The second in camera hearing
In May 2022 and April 2023, after the People filed the amended complaint
eliminating the drug charges, Vasquez filed another round of motions to unseal, traverse,
and quash the warrant. The People opposed the motions, arguing that Vasquez’s
arguments had already been addressed and rejected. Vasquez filed a supplemental brief
asking for a suppression hearing and arguing that he had not been given the opportunity
at his preliminary hearing to litigate his claim that the execution of the search warrant
violated his Fourth Amendment rights against unreasonable searches and seizures.
At the hearing on Vasquez’s motions, the trial court concluded that it had already
ruled on the motions to unseal, traverse, and quash the warrant, but that Vasquez was
correct that he had not yet received a ruling on his motion to suppress based on execution
issues. The court ruled that Vasquez was entitled to a suppression hearing regarding the
Fourth Amendment issues that had not yet been litigated.
About a month after that ruling, Vasquez filed a third round of motions to unseal,
traverse, and quash the warrant and suppress evidence under section 1538.5. The trial
court (Judge Michael Dauber) held a second in camera hearing to address the motions to
10
unseal and quash the warrant, noting that the motion to traverse had “already been
resolved and was denied” by Judge Robinson. Judge Dauber reviewed the search warrant
affidavit on the record and in the presence of the prosecutor and Brosowske. After
examining Brosowske regarding each sentence of the sealed portion of the warrant
affidavit, the court concluded that the entire contents of page 9 were properly sealed. The
court stated: “I’m going to find that the [informant’s] privilege under [Penal Code
section] 1041 is justified. That the confidential informant’s identity will remain sealed
and undisclosed. Further, that the confidential informant’s identity … will [not be]
disclosed because ... it relates to continuing investigation, potential threat to the CI, and it
is not necessary for the determination of probable cause.” Next, the court examined
Brosowske regarding his investigation and statement of probable cause, and specifically
regarding his statement that “throughout the investigation, ‘Vasquez continued to post
firearms to his public social media [accounts].’ ” At the conclusion of that examination,
the court found that the affidavit provided probable cause to issue the search warrant.
At the open court hearing, the court announced that it was denying the motion to
unseal because the confidential informant privilege applied (Evid. Code, § 1041) and
sealing page 9 was necessary to protect that person’s identity. It also announced that it
was denying the motion to quash because the facts presented in the search warrant
provided a fair probability that contraband would be found in the places to be searched.
c. The Hobbs motion for the Tamarisk warrant
11
In October 2024, Vasquez filed a third Hobbs motion, this time seeking to unseal
the confidential portion of the Tamarisk warrant. The court denied the motion on the
ground that the prior, unexecuted warrant was immaterial to Vasquez’s case.
2. The Court Properly Denied the Hobbs Motions
Regarding his motions to unseal, Vasquez contends that the trial court erred by—
(1) hearing ex parte argument from the prosecutor and Brosowske prior to the in camera
hearing; (2) failing to rule on his first Hobbs motion; (3) failing to state its reasons why it
denied his second Hobbs motion; and (4) refusing to conduct an in camera review of the
Tamarisk warrant. We conclude each argument lacks merit.
“By statutory privilege, public entities may refuse to disclose official information
and an informant’s identity when disclosure is against the public interest. (Evid. Code,
§§ 1040, 1041.)” (People v. Heslington (2011) 195 Cal.App.4th 947, 955–956.)
Moreover, “[i]t is settled that ‘all or any part of a search warrant affidavit may be sealed
if necessary to implement the privilege [under Evidence Code section 1041] and protect
the identity of a confidential informant.’ ” (People v. Martinez (2005) 132 Cal.App.4th
233, 240 (Martinez), citing Hobbs, supra, 7 Cal.4th at p. 971.) “Consequently, courts are
not required to disclose ‘the identity of an informant who has supplied probable cause for
the issuance of a search warrant . . . where such disclosure is sought merely to aid in
attacking probable cause. [Citations.]’ [Citations.] Courts may further refuse to disclose
the content of an informant's statements to the extent such ‘ “disclosure ... would tend to
disclose the identity of the informer.” ’ ” (Martinez, at p. 240, quoting Hobbs, supra,
7 Cal.4th at p. 962.)
12
In cases where all or part of a search warrant affidavit has been sealed and the
defendant moves to traverse and quash the warrant, the court is required to conduct an in
camera hearing to determine if “sufficient grounds exist for maintaining the
confidentiality of the informant’s identity” and if “the affidavit or any major portion
thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid
revealing the informant's identity.” (Hobbs, supra, 7 Cal.4th at p. 972, fn. omitted; Evid.
Code, § 915.) “Absent a waiver by the prosecutor, the defendant and his or her attorney
may not attend the in camera proceeding.” (Martinez, supra, 132 Cal.App.4th at p. 241,
citing Hobbs, supra, 7 Cal.4th at p. 973.)
“Because the defendant will be ignorant of the content of the sealed portions of the
affidavit, the court ‘must take it upon itself both to examine the affidavit for possible
inconsistencies or insufficiencies regarding the showing of probable cause, and inform
the prosecution of the materials or witnesses it requires. The materials will invariably
include such items as relevant police reports and other information regarding the
informant and the informant’s reliability.’ ” (Martinez, supra, 132 Cal.App.4th at p. 241;
Hobbs, supra, 7 Cal.4th at p. 973; Evid. Code, § 915.)
In Hobbs, our Supreme Court explained that a trial court is capable of reviewing
“all the relevant materials in camera to determine whether they will support defendant's
challenges to the search warrant.” (Hobbs, supra, 7 Cal.4th at p. 971.) “[A] sealed
transcript of the in camera proceedings, and any other sealed or excised materials, should
be retained in the record along with the public portions of the search warrant application
for possible appellate review.” (Id. at p. 975.)
13
Having reviewed the sealed portion of the affidavit and the sealed transcript of the
in camera hearing, we conclude that there were valid grounds for protecting the identity
of the confidential informant, that disclosing the sealed portion of the affidavit would
have revealed or tended to reveal the informant’s identity, and that the trial court made
adequate inquiries at the in camera hearing before making those determinations. Thus,
page 9 of the warrant application was properly ordered sealed, and the court correctly
denied Vasquez’s motions to unseal it.
Vasquez’s claim that the trial court improperly heard ex parte argument from the
prosecutor and Brosowske prior to the in camera hearing is based on a misreading of the
record. To support his claim, Vasquez points to the statements in the October 27, 2020
minute order that the court “ ‘read and considered defense motion to traverse as well as
defense motion pursuant to PC1538.5 and people’s opposition’ ” and that there were
“[a]rguments presented by the People prior to in camera hearing.” Vasquez contends the
court’s handling of the motion was “egregiously improper and unconstitutional” because
the court allowed the People to “presen[t] argument in chambers prior to the in-camera
hearing [and] no record was made as to what was said by the prosecutor and affiant.”
Vasquez’s reading of the minute order is untenable. The order plainly states that the
People presented argument prior to the in camera hearing, not during it. In other words,
the order reflects that the prosecutor presented his argument during the open court portion
of the hearing. And our review of the transcript of that hearing confirms that is in fact
what occurred. Moreover, having reviewed the confidential transcript of the in camera
14
hearing, we can confirm that the People did not make any argument outside the presence
of defense counsel.
We also reject Vasquez’s claims that the court failed to rule on his first Hobbs
motion and failed to state its reasons for denying the second motion. As we noted above,
the trial court did fail to announce its ruling denying the first Hobbs motion, but any error
caused by that failure was cured when Vasquez received a second Hobbs hearing, after
which the court did announce its ruling. And, given the confidential nature of a Hobbs
hearing, the law is clear that a trial court need “simply report” its ruling. (Hobbs,
supra, 7 Cal.4th at p. 974.) Refraining from articulating the underling reasoning for the
ruling “ ‘prevent[s] ... inadvertent revelations of the identity of confidential police
informants.’ ” (Ibid.)
Finally, we also reject Vasquez’s contention that the court’s refusal to address his
Hobbs motion on the Tamarisk warrant was error. Vasquez has forfeited the argument by
failing to support it with any legal authority. (See, e.g., Ribakoff v. City of Long Beach
(2018) 27 Cal.App.5th 150, 162 “ ‘[A]n appellant must do more than assert error and
leave it to the appellate court to search the record and the law books to test his claim.
The appellant must present an adequate argument including citations to supporting
authorities ....’ ” ].) Forfeiture aside, the trial court correctly concluded that the
confidential portion of the Tamarisk warrant affidavit was irrelevant because that
affidavit did not provide the probable cause for the search at issue.
For all of these reasons, we uphold the trial court’s denials of the Hobbs motions.
3. The Court Properly Denied the Motions to Traverse and Quash
15
Vasquez also raises several challenges to the court’s denial of his motions to
traverse and quash the warrant. We conclude those arguments lack merit as well.
A motion to traverse seeks to challenge the veracity or accuracy of the factual
assertions in a warrant affidavit. (Hobbs, supra, 7 Cal.4th at p. 974.) “This is also
known as a subfacial challenge to the warrant.” (Rutter Guide, Cal. Crim. Pro., § 6:36.)
A motion to quash, on the other hand, is a facial challenge to the sufficiency of the
showing of probable cause supporting the warrant. (Hobbs, at p. 974; Pen. Code,
§ 1538.5, subd. (a)(1)(B)(iii).)
When, as here, the affidavit supporting the warrant is sealed, the defendant will
not be privy to the information supplied by the confidential informant and may have no
way of knowing whether the showing of probable cause was sufficient or likewise
whether the affidavit contained material misstatements or omissions. (Hobbs, supra,
7 Cal.4th at p. 972.) Thus, if a defendant seeks to challenge the veracity or accuracy of
the factual assertions in the affidavit (by filing a motion to traverse), or seeks to challenge
the sufficiency of the showing of probable cause for the issuance of a warrant (by filing a
motion to quash), the trial court “strike[s] a fair balance between the People’s right to
assert the informant’s privilege and the defendant’s discovery rights” by conducting an in
camera hearing following the procedures outlined in Evidence Code section 915.
(Hobbs, at p. 972.)
“If the affidavit is found to have been properly sealed, and the defendant has
moved to traverse the warrant, the court should then proceed to determine whether the
defendant’s general allegations of material misrepresentations or omissions are supported
16
by the public and sealed portions of the search warrant affidavit, including any testimony
offered at the in camera hearing.” (Hobbs, supra, 7 Cal.4th at p. 974.) The court should
conduct this review in camera, outside the presence of the defendant and defense counsel,
and the defendant should be given the opportunity to submit written questions for the trial
court to consider. (Id. at p. 973.)
To prevail on a motion to traverse, “the defendant must demonstrate that (1) the
affidavit included a false statement made ‘knowingly and intentionally, or with reckless
disregard for the truth,’ and (2) ‘the allegedly false statement is necessary to the finding
of probable cause.’ ” (Hobbs, supra, 7 Cal.4th at p. 974, quoting Franks v. Delaware
(1978) 438 U.S. 154, 155-156 (Franks).) If, after in camera review, the court
“determines that the materials and testimony before it do not support defendant’s charges
of material misrepresentation,” then “the court should simply report this conclusion to the
defendant and enter an order denying the motion to traverse,” and along with it, the
request for an evidentiary hearing under Franks. (Hobbs, at p. 974.)
“By the same token, if the defendant has also moved to quash the warrant, ‘the
court should proceed to determine whether, under the “totality of the circumstances”
presented in the search warrant affidavit and the oral testimony, if any, presented to the
magistrate, there was “a fair probability” that contraband or evidence of a crime would be
found in the place searched ....’ ” (Martinez, supra, 132 Cal.App.4th at p. 241.) “In
reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the
warrant can be upset only if the affidavit fails as a matter of law ... to set forth sufficient
competent evidence supportive of the magistrate’s finding of probable cause, since it is
17
the function of the trier of fact, not the reviewing court, to appraise and weigh evidence
when presented by affidavit as well as when presented by oral testimony.’ ” (Hobbs,
supra, 7 Cal.4th at p. 975.) As with a denial of a motion to traverse, if the court
“concludes probable cause existed to issue the search warrant, it should ‘report this
conclusion to the defendant and enter an order denying the motion to quash.’ ”
(Martinez, at p. 241.)
Having reviewed the sealed transcripts of the in camera hearings on the motions to
traverse and quash, as well as the public and sealed portions of the affidavit, we conclude
that the trial court properly denied both motions. Regarding the motion to traverse, we
conclude that substantial evidence supports the trial court’s finding that Brosowske made
no material misrepresentations or omissions in applying for the search warrant.
Regarding the motion to quash, we conclude, based on an independent review of the
entire affidavit, that the trial court correctly found that the information in both portions of
the affidavit established, under the “totality of the circumstances,” that there was a “fair
probability” that contraband or evidence of a crime would be found in the places to be
searched pursuant to the warrant. (Illinois v. Gates (1983) 462 U.S. 213, 238.)
As he argued regarding his Hobbs motion, Vasquez contends that the trial court
failed to rule on his motions to traverse and quash the warrant or, at the very least, failed
to “provide reasoning” for its rulings. Neither claim has merit. Judge Robinson denied
both the motion to traverse and the motion to quash during the first in camera hearing.
However, because they were filed as a combined motion, it is unclear whether the court’s
reference to the “motion to traverse” in the announcement of its ruling was intended as
18
shorthand to refer to the combined motion or was instead intended to refer to the motion
to traverse only. Any confusion was cleared up, however, by the fact that Judge Dauber
held a second in camera hearing on the motion to quash and announced his ruling
denying that motion on the open record. And, by simply reporting its ruling and not
articulating its reasoning, the court was following the rule that applies to motions to
traverse and quash in cases like this, where the affidavit contains confidential information
that was properly sealed. (Hobbs, supra, 7 Cal.4th at p. 974; Martinez, supra, 132
Cal.App.4th at p. 241.)
Next, we reject Vasquez’s argument that if the court did deny the motions, those
denials were erroneous. Vasquez asserts that he carried his burden for obtaining a Franks
evidentiary hearing on the motion to traverse for two reasons. First, he argues that the
affidavit’s discussion of the 2016 police report was materially false because it made it
seem as though he had a restraining order against Melissa, when in fact it was his ex-wife
who had obtained a restraining order against him. We disagree. Brosowske included a
reference to the report in the affidavit as background information, to explain why the
investigators initially believed that he was residing at an apartment on Tamarisk Avenue.
The details of the restraining order against Vasquez are irrelevant to the probable cause
analysis. They do not tend to prove or disprove whether there was a fair probability that
illegal firearms would be found in his current residence.
Second, he argues that the affidavit’s statement that he “continued to post firearms
to his public social media pages” constitutes a material falsehood because when defense
counsel cross-examined Brosowske at the preliminary hearing, Brosowske “was unable
19
to produce” a single one of the posts “nor could he produce one detail of any post.”
Vasquez misconstrues the applicable burden of proof. Faced with a motion to traverse
and a request for a Franks hearing, the trial court treats “the search warrant [a]s
presumptively valid and the burden falls on the defendant to show that it contained
deliberately or recklessly false statements.” (People v. Torres (1992) 6 Cal.App.4th
1324, 1334 (Torres).) In addition, even if the defendant succeeds in proving an
intentional or reckless material falsehood, the motion may nevertheless be denied if,
setting aside the falsehood, “there remains sufficient content in the warrant affidavit to
support a finding of probable cause.” (Franks, supra, 438 U.S. at pp. 171-172.)
Here, the trial court examined Brosowske about the above statement during the in
camera hearing and concluded that Brosowske had not made any material representations
or omissions in the affidavit. The court’s ruling disposed of the matter. And at the
preliminary hearing, the issue before the court was whether there was probable cause to
believe that Vasquez committed a felony. (§ 866.) The People were not required to
prove the warrant affidavit’s statements at the preliminary hearing. Moreover, even if we
assume for the sake of argument that the affidavit’s statement that Vasquez “continued to
post firearms to his public social media pages” was intentionally or recklessly false,
Vasquez could not demonstrate prejudice because the information supplied by the
confidential informant was sufficient, on its own, to support a finding of probable cause.
(Franks, supra, 438 U.S. at pp. 171-172.)
As to the motion to quash, Vasquez argues that the trial court’s denial was
erroneous because the evidence to establish probable cause was stale by the time the
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warrant was executed. According to Vasquez, at the preliminary hearing “Brosowske
testified that no new evidence was discovered once he learned [of] the Vasquez family’s
new residence on Lakota.” Because no such testimony appears on the transcript page that
Vasquez cites, or, by our review, on any other page, we reject this argument as
unfounded. Moreover, even if Brosowske had said that at the preliminary hearing, the
information he received from the confidential informant is sufficient, on its own, to
constitute probable cause for the warrant, and that information was not stale.
Finally, we reject Vasquez’s claim that the trial court erred by addressing the
motion to traverse before holding the suppression hearing. In support, Vasquez relies on
Torres, supra, 6 Cal.App.4th 1324, but that case is inapplicable. In Torres, officers
obtained a warrant to search the defendants’ residence based on cocaine found in their
vehicle during a traffic stop the night before. (Id. at p. 1327.) The People charged
defendants with various drug offenses after officers recovered a large quantity of crack
cocaine, $35,000 in cash, and drug paraphernalia during the search of their residence.
(Ibid.) In the trial court, defendants brought a combined suppression motion and motion
to traverse, arguing both that the traffic stop was illegal and that the affiant who prepared
the affidavit in support of the search warrant was guilty of reckless or intentional
misstatements of fact surrounding the stop. (Id. at p. 1328.) At the conclusion of “a full
hearing in which it heard evidence and argument by both sides on the validity of the
detention and search,” the trial court ruled that defendants had not met their burden of
showing that the affidavit contained intentional or reckless material falsehoods and thus
denied the motion to traverse. (Id. at pp. 1334-1335.)
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The appellate court concluded that the trial court “erred by directly adjudicating
the Franks issue of whether or not there were reckless or false misstatements in the
search warrant affidavit instead of first determining the legality of the I-5 stop and
search.” (Torres, supra, 6 Cal.App.4th at pp. 1333-1334.) The court further concluded
that the error was prejudicial because it excused the People of their burden “to prove by a
preponderance of the evidence that the detention and search were justified.” (Id. at
p. 1334.) The court reversed the matter and remanded for the trial court to review the
transcripts of the hearing and “determine whether [the People proved that] the I-5 stop
and warrantless search were valid.” (Id. at p. 1335.)
This case does not compel a similar result because the probable cause in
Brosowske’s affidavit was not derived from a prior detention or search. Rather, the
probable cause was based on Brosowske’s record searches, review of Vasquez’s social
media accounts, and conversations with the confidential informant. Moreover, unlike the
trial court in Torres, the trial court in this case held a hearing on Vasquez’s motion to
suppress and determined at the conclusion of that hearing that the People satisfied their
burden of proving the search of his residence was reasonable.
For all of these reasons, we uphold the trial court’s denial of the motions to
traverse and quash.
B. Motion to Suppress
Vasquez argues that the trial court erred by denying his motion to suppress. He
contends that the evidence obtained during the search of his apartment should have been
22
excluded as tainted fruit of his unlawful arrest, which occurred outside the “immediate
vicinity” of his apartment, in violation of the Fourth Amendment. We are not persuaded.
The court held Vasquez’s suppression hearing regarding the execution of the
warrant on August 2, 2024. Brosowske testified that he executed the warrant with a team
of six to eight other officers. The officers knew, from surveillance, that three minor
children lived in the apartment with Vasquez and Melissa. Given the likely presence of
drugs and firearms in the apartment, the officers considered it a “high risk search
warrant” and thus wanted to execute it “in the safest manner possible to keep the children
safe and keep us safe.” They concluded the safest method was to surveil, detain, then
enter. Brosowske explained: “[I]f someone is suspected of possessing firearms, and they
could possibly end up in a barricaded or hostage situation, or exchange of gunfire, we
don’t want to do that with children present inside the residence, so we would let the
potential suspect leave. We keep constant surveillance on that suspect, detain them, and
then return back to the residence with them detained in a vehicle, and knock on the door.”
Upon arrival, the officers surveilled the apartment until Vasquez and Melissa left
together in a vehicle, leaving the children in the apartment. The officers followed
Vasquez’s car for about five minutes before initiating a traffic stop, detaining them in a
patrol car, and transporting them back to the apartment. With Vasquez inside one of the
patrol cars, the officers knocked on the door, announced their presence, then entered the
apartment and conducted a safety sweep. After the sweep, the officers brought Melissa
inside the apartment and told her to sit with the children. With the apartment thus
secured, the officers proceeded with the search.
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After hearing evidence and argument, the trial court denied the suppression
motion, concluding that the execution of the search warrant was reasonable and did not
violate Vasquez’s Fourth Amendment rights.
Relying on Bailey v. United States (2013) 568 U.S. 186, 201, Vasquez argues that
“detention incident to [the] execution of a search warrant” must be limited to “the
immediate vicinity of the premises to be searched.” But this case is distinguishable from
Bailey because here Vasquez’s vehicle was listed on the warrant as one of the places to
be searched. Moreover, after the officers conducted the traffic stop, they immediately
transported him to the immediate vicinity of his apartment, where he remained in a patrol
car for the duration of the search. Thus, what Vasquez characterizes as an unlawful arrest
was simply a reasonable detention made before conducting the search specified in the
warrant, under circumstances where officers are concerned about their safety and the
safety of others due to the likely presence of drugs and firearms and were authorized to
search the vehicle stopped.
But, even if we assume for the sake of argument that the detention was an
unlawful arrest, Vasquez’s challenge fails for the more fundamental reason that the
affidavit supporting the warrant was not “tainted” by anything the officers observed
because of that arrest. Segura v. United States (1984) 468 U.S. 796 (Segura) is
instructive. In that case, narcotics agents arrested one of the defendants and had probable
cause to believe that a drug operation was being operated in the defendant’s apartment.
The agents entered and secured the apartment and remained there for several hours until a
magistrate issued a search warrant. The warrant affidavit did not mention that the
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officers had entered the defendants’ apartment or that they had observed drug
paraphernalia on entry. (Id. at pp. 799-801.) The issue before the United States Supreme
Court was whether the drugs found during the later search should have been suppressed.
(Id. at p. 804.)
The Court explained that “[e]vidence obtained as a direct result of an
unconstitutional search or seizure is plainly subject to exclusion. The question to be
resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of
a prior illegality is whether the challenged evidence was ‘ “come at by exploitation of
[the initial] illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.” ’ ” (Segura, supra, 468 U.S. at pp. 804-805.) The Court concluded that
“[w]hether the initial entry was illegal or not [was] irrelevant to the admissibility of the
challenged evidence because there was an independent source for the warrant under
which that evidence was seized.” (Id. at pp. 813-814.) This was because “[n]one of the
information on which the warrant was secured was derived from or related in any way to
the initial entry,” and thus the search warrant was “a ‘means sufficiently distinguishable’
to purge the evidence of any ‘taint’ arising from the entry.” (Id. at p. 814.)
Here, the evidence of the illegal firearms and ammunition found in Vasquez’s
apartment during the search was not the “fruit” of the arrest. None of the information to
support probable cause in the warrant affidavit was derived from Vasquez’s detention
immediately before the search. As in Segura, the valid warrant search was a “ ‘means
sufficiently distinguishable’ to purge the evidence of any ‘taint’ arising from [the arrest].”
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(Segura, supra, 468 U.S. at p. 814.) We therefore conclude that the court properly denied
the motion to suppress.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
MENETREZ
J.
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