The PEOPLE, Plaintiff and Respondent, v. Kathy Mree RUNGE, Defendant and Appellant.
We hold that a search warrant affidavit which states no facts linking the suspected criminal activity with the items sought and the place to be searched is so lacking in probable cause that reliance on the warrant is objectively unreasonable. Thus, the Leon 1 “good faith” modification of the exclusionary rule does not apply. We conclude that the court below erroneously denied appellant's suppression motion, and we reverse on that ground. We therefore do not address sentencing issues raised by appellant.
Case No. 249247
Appellant Kathy Mree Runge was charged on December 19, 1989, by information filed in Stanislaus County Superior Court with possession for sale of 57 grams or more of methamphetamine, a violation of Health and Safety Code section 11378. The information also alleged she was armed at the time of the offense within the meaning of Penal Code section 12022, subdivision (a), and she was out on bail for another offense at the time the crime was committed within the meaning of Penal Code section 12022.1. Her husband Steven Runge was also charged but the charges against him were later dismissed.
Runge entered a plea of not guilty on December 22, 1989. She filed her Penal Code sections 1538.5 and 995 motions on February 7, 1990. The motions were denied on February 26. On October 15, 1990, Runge withdrew her plea of not guilty and entered a plea of guilty as charged. She admitted the armed enhancement.
On November 13, 1990, Runge was sentenced to the midterm of two years, all but one-third of the term to be stayed, plus a one-year enhancement pursuant to Penal Code section 12022, subdivision (a). The sentence was ordered served consecutive to the sentence in case no. 257377. Runge was found ineligible for the California Rehabilitation Center.
Case No. 257377
On August 17, 1990, Runge was charged by information filed in Stanislaus County Superior Court with possession of methamphetamine (count I) and marijuana (count II), in violation of Health and Safety Code sections 11377 and 11357, subdivision (b), respectively. The information also alleged Runge was out on bail in case nos. 249247 and 241144 at the time the offenses were committed.
On October 15, 1990, Runge entered a plea of guilty to the charges and admitted the enhancement (Pen.Code, § 12022.1).
On November 13, 1990, Runge was sentenced to the midterm of two years, plus an additional two years for each bail enhancement on count I and to time served on count II.
Runge filed her timely notices of appeal in both cases on November 13, 1990. Amended notices of appeal were filed on November 19, 1990. Runge remains free on bail pending the appeal.
The following facts are taken from the probation officer's report and the preliminary hearing transcripts.
Case No. 249247
On June 24, 1988, the Stanislaus County Sheriff's Department obtained a search warrant for the search of 2609 Sharondell in Modesto, California. The warrant was based on information received by Detective Dave Yonan from a confidential informant that an individual named “Kathy” had a plastic baggie of white powder which she described as “crank” for sale.
The search uncovered various weapons, a large quantity of methamphetamine and various other paraphernalia associated with the sale of narcotics.
Case No. 257377
On May 10, 1989, Modesto Police Department officers served a search warrant on the Sharondell residence. The search revealed a Ziploc plastic baggie containing methamphetamine and less than an ounce of marijuana.
I. THE SEARCH WARRANT LACKED PROBABLE CAUSE
When reviewing the denial of a motion to suppress evidence, the “trial court's factual findings relating to the challenged search or seizure, ‘whether express or implied, must be upheld if they are supported by substantial evidence.’ [Citation.]” (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.) Nevertheless, we exercise our independent judgment to measure the facts, as found by the trial court, against the constitutional standard of reasonableness embodied within the Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)
Appellant contends the affidavit submitted in support of the application for the challenged search warrant did not establish probable cause existed to search the Sharondell residence. We agree.
The affidavit states only that the informant had observed “Kathy” at the residence on a single occasion with a baggie of what was represented to be methamphetamine for sale and that utilities at the residence are in the name of Steve Runge. There are no facts in the affidavit sufficiently linking “Kathy” to the Sharondell residence or to Steve Runge which would support an inference that “Kathy” resides in or frequents the house and therefore contraband is likely to be found at the residence.
Probable cause requires a showing that there is a fair probability that contraband or evidence will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.) Of necessity, a nexus between the place to be searched and the criminal activity in question must be established. (See U.S. v. Hove (9th Cir.1988) 848 F.2d 137, 139.) An individual's presence at a residence alone does not establish a sufficient connection with the residence to support a finding of probable cause. (United States v. Savoca (6th Cir.1985) 761 F.2d 292, 297.) This is well-established law.
II. GOOD FAITH RULE DOES NOT PREVENT EXCLUSION OF THE EVIDENCE
Under the principles announced in United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, the finding that a warrant is not supported by probable cause no longer requires application of the exclusionary rule without further analysis. The United States Supreme Court in Leon significantly modified the exclusionary rule after careful review of the rule's purpose. Since the exclusionary rule is not constitutionally required, courts may limit its scope to circumstances in which its remedial objectives are most efficaciously served. (Id. at p. 906, 104 S.Ct. at p. 3411; accord Illinois v. Krull (1987) 480 U.S. 340, 347, 107 S.Ct. 1160, 1165, 94 L.Ed.2d 364; United States v. Calandra (1974) 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561; United States v. Savoca, supra, 761 F.2d at p. 295.) As the Supreme Court in Leon noted, the cost of the exclusionary rule on society is high and if its application does not result in an appreciable deterrence of police misconduct, its use is unwarranted. (United States v. Leon, supra, 468 U.S. at p. 909, 104 S.Ct. at p. 3413.)
Balancing the high cost to society against the important Fourth Amendment rights the exclusionary rule was designed to protect, the court in Leon concluded the “marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” (468 U.S. at p. 922, 104 S.Ct. at p. 3420.) Thus, in Leon the court held the exclusionary rule no longer requires exclusion of evidence obtained by police officers acting in good faith reliance, i.e., objectively reasonable reliance, on a search warrant issued by a neutral magistrate even though the warrant is later found to be constitutionally defective. (Ibid.) The test is an objective one. The officers' subjective good faith is not at issue. (United States v. Leon, supra, at pp. 919, fn. 20, 922, fn. 23, 104 S.Ct. at pp. 3418, fn. 20, 3420, fn. 23.)
Respondent contends the “good faith” exception of Leon saves the search in this case even if we find, as we have, that the warrant was improvidently granted because it was not supported by probable cause. Appellant argues good faith is lacking.
The trial court found, without discussion, the officers acted in good faith when they relied upon the warrant and executed the search. We disagree and hold the evidence seized in the search should have been suppressed.
The great majority of federal cases have concluded a determination of objective reasonableness is a question of law or mixture of fact and law subject to de novo review. (U.S. v. Bowling (6th Cir.1990) 900 F.2d 926, 930; United States v. Maggitt (5th Cir.1985) 778 F.2d 1029, 1035; United States v. Sager (8th Cir.1984) 743 F.2d 1261, 1265; United States v. Hendricks (9th Cir.1984) 743 F.2d 653, 656.) This court has reached the same conclusion. (See Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1465–1466, 245 Cal.Rptr. 617.)
Under Leon, evidence seized pursuant to a search warrant should be suppressed only when the officers executing it could not have in good faith reasonably believed the warrant was valid. (Massachusetts v. Sheppard (1984) 468 U.S. 981, 988, 104 S.Ct. 3424, 3427, 82 L.Ed.2d 737.) In other words, would a reasonable and well-trained officer know the search was illegal despite the magistrate's authorization? (People v. Camarella (1991) 54 Cal.3d 592, 606, 286 Cal.Rptr. 780, 818 P.2d 63; People v. Spears (1991) 228 Cal.App.3d 1, 19, 278 Cal.Rptr. 506; People v. Barbarick (1985) 168 Cal.App.3d 731, 739–740, 214 Cal.Rptr. 322; U.S. v. Bowling, supra, 900 F.2d at p. 931.)
Thus, our analysis must be whether, applying the standards set forth in Leon, and in the recent decision of the California Supreme Court in People v. Camarella, supra, 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63, a reasonable and well-trained officer was justified in relying on the warrant issued in this case.
Usually a warrant issued by a neutral magistrate will suffice to establish the officer has acted in good faith in conducting the search. There is a strong preference for warrants and a magistrate's determination that a warrant is legally sufficient to withstand constitutional scrutiny is given great deference. (United States v. Leon, supra, 468 U.S. at pp. 914, 921, 104 S.Ct. at pp. 3416, 3419.) However, the deference is not without limit and an officer is not always permitted to rely on the magistrate's determination of probable cause. (People v. Camarella, supra, 54 Cal.3d at p. 602, 286 Cal.Rptr. 780, 818 P.2d 63.)
The court in Leon identified four circumstances in which reliance on a warrant would not be objectively reasonable and therefore, the deterrent effect of the exclusionary rule would justify exclusion of evidence obtained by the search. Suppression remains appropriate if the magistrate or judge issuing the warrant was misled by knowingly or recklessly false information appearing in the affidavit. It also remains appropriate when the issuing magistrate wholly abandons his or her judicial role. Nor can an officer rely on a warrant so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Finally, a warrant may be so facially deficient by failing to particularize the place to be searched or the items to be seized to make it unreasonable to presume the warrant valid. (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.)
Appellant does not claim that the first, second, or last of the circumstances identified in Leon are present in this case. Appellant's argument is that the officers' investigation was negligent and/or incomplete. As a result, she argues the officers did not have sufficient information to present to the magistrate and as a result, the affidavit was so lacking in probable cause as to render official belief in its existence unreasonable.
A. Relevance of facts concerning police investigation
Appellant, in her briefing, relies on a line of cases requiring as part of the good faith analysis a factual presentation setting forth the investigatory efforts of the officers before seeking the warrant. Determining the sufficiency of the investigation is, according to these decisions, a key element in determining whether the affidavit is “so lacking in indicia of probable cause” as to render reliance on the subsequent warrant unreasonable. (People v. Johnson (1990) 220 Cal.App.3d 742, 750–751, 270 Cal.Rptr. 70; People v. Maestas (1988) 204 Cal.App.3d 1208, 1215, 252 Cal.Rptr. 739; Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 944, 216 Cal.Rptr. 817.)
Camarella was decided after the briefing in this case was completed. In Camarella, the court expressly disapproved People v. Johnson, supra, 220 Cal.App.3d 742, 750–751, 270 Cal.Rptr. 70, and rejected the argument that good faith requires a showing that officers have exhausted all avenues of investigation and corroboration. (54 Cal.3d at p. 606, fn. 6, 286 Cal.Rptr. 780, 818 P.2d 63.) Instead the court held the focus of the good faith inquiry is the knowledge of the officer at the time he makes the decision to submit an affidavit to the magistrate.
According to Camarella, this also precludes consideration of the fact that a judicial officer may have concluded the affidavit established probable cause. (54 Cal.3d at p. 605, 286 Cal.Rptr. 780, 818 P.2d 63.)
Therefore, we hold the absence of a record on the investigatory efforts of Detective Yonan and the fact the warrant was issued by a neutral magistrate are not relevant to our good faith determination. However, the sufficiency of the affidavit is.
B. Definition of “so lacking in indicia”
The majority of courts applying the Leon standard address the question of whether the affidavit on which the warrant is issued is “so lacking in probable cause” to make reliance on the warrant objectively unreasonable. Unfortunately, there is no uniform approach to the issue. There is a diverse understanding of what showing is necessary and disagreement on what the language means.
It is the magistrate's responsibility to determine whether the affidavit is legally sufficient. (Accord United States v. Maggitt, supra, 778 F.2d at p. 1035; U.S. v. Gibson (8th Cir.1991) 928 F.2d 250, 253–254; People v. Fernandez (1989) 212 Cal.App.3d 984, 990, 261 Cal.Rptr. 29; In re Christopher R. (1989) 216 Cal.App.3d 901, 905–906, 265 Cal.Rptr. 91; People v. Barbarick, supra, 168 Cal.App.3d at pp. 739–740, 214 Cal.Rptr. 322.) Although Leon indicates an officer must have a certain minimum level of knowledge of the law's requirements (United States v. Savoca, supra, 761 F.2d at pp. 295–296), the warrant requirement is based on the assumption that constitutional rights are better protected by neutral judicial officers who presumably know more and understand better the complexities of the Fourth Amendment.
Furthermore, the law should encourage the obtaining of warrants and not force police officers to second-guess a magistrate's determination that the warrant is sufficiently supported by probable cause. (Illinois v. Krull, supra, 480 U.S. at p. 349, 107 S.Ct. at p. 1166; United States v. Gant (5th Cir.1985) 759 F.2d 484, 488; United States v. Cardall (10th Cir.1985) 773 F.2d 1128, 1133.) Under Leon, if reasonable judicial minds may differ on the existence of probable cause, the officer has acted with objective reasonableness in relying on the warrant issued. (United States v. Leon, supra, 468 U.S. at p. 914, 104 S.Ct. at p. 3416; U.S. v. Hove, supra, 848 F.2d at p. 139; U.S. v. Simpkins (8th Cir.1990) 914 F.2d 1054, 1057–1058.) Leon 's objective standard is not intended to force officers to second-guess the judiciary; it is merely a requirement that the officer not close his or her mind to the possibility of illegality. (United States v. Leon, supra, 468 U.S. at p. 919, fn. 20, 104 S.Ct. at p. 3419, fn. 20.)
On the other hand, the law should not encourage police officers to shift all responsibility for the protection of Fourth Amendment rights to the judiciary. The Fourth Amendment is designed to protect the citizenry from the abuse of police authority. The system is not a perfect one and magistrates may not always perform as they should. Therefore, it is reasonable to require an officer applying for a warrant to minimize the danger of constitutional error by exercising reasonable professional judgment. (Malley v. Briggs (1986) 475 U.S. 335, 345–346, 106 S.Ct. 1092, 1098–1099, 89 L.Ed.2d 271.) We believe the correct application of Leon, as interpreted by Camarella, is to determine whether the documents supporting the warrant are so devoid of factual support as to make it plainly evident that a magistrate or judge had no business issuing the warrant, i.e., has abandoned his or her responsibilities. (Accord Illinois v. Gates, supra, 462 U.S. at p. 264, 103 S.Ct. at p. 2346 (conc. opn. of White, J.); United States v. Maggitt, supra, 778 F.2d at p. 1035; United States v. Cardall, supra, 773 F.2d at p. 1133.)
In the hopes of providing law enforcement and trial courts with a workable test for determining whether Leon saves from exclusion the products of an otherwise unlawful search, we hold that at a minimum officers must include in the affidavit factual support for each of the well-recognized elements of probable cause. The sufficiency of the factual support is for the magistrate, but any reasonable and well-trained officer knows or should know that an affidavit for probable cause must include at least the following:
(1) If the information comes from an informant, the affidavit must contain facts which establish the informant is reliable and the information given is factual, not conclusory, and from personal knowledge. (Illinois v. Gates, supra, 462 U.S. at p. 230, 103 S.Ct. at p. 2328; People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333.)
(2) There must be facts establishing the time of critical events so a magistrate can determine whether the information is fresh and reliable or stale and unreliable. (Rugendorf v. United States (1964) 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887; Sgro v. United States (1932) 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260.)
(3) There must be facts establishing a nexus between the information of criminal activity, the items sought and the place to be searched. (Illinois v. Gates, supra, 462 U.S. at p. 230, 103 S.Ct. at p. 2328; U.S. v. Hove, supra, 848 F.2d at p. 139.)
(4) The affidavit must contain facts identifying with particularity the place to be searched and the items to be seized. (Steele v. United States (1925) 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677; United States v. Alberts (8th Cir.1983) 721 F.2d 636.)
An affidavit failing to provide facts addressing each of these four basic requirements of probable cause is the type of “bare bones” affidavit the Supreme Court condemned in Leon. Good faith assumes some effort was made to provide such facts. When the affidavit is wholly devoid of facts supporting one or more of the critical probable cause elements, it does not present “a close or debatable question on the issue.” (See People v. Camarella, supra, 54 Cal.3d at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.) No reasonable and well-trained officer could in good faith rely on a warrant issued on such an affidavit.
C. Application of good faith rule to this case
Applying the above principles to this case, we conclude the affidavit submitted by Detective Yonan did not contain any facts showing the necessary nexus between the criminal activity, the items sought, and the place to be searched.
There were no facts in the affidavit allowing an inference that “Kathy” or the drugs would again be found at the house. The informant spoke with her there only once. This is not a sufficient link to establish a probability that drugs or “Kathy” would be found in the residence at a later date. “Kathy” could have been a visitor, a trespasser, or a business invitee. If the affidavit had contained a single fact showing a connection between “Kathy” and the residence, Leon would be applicable even if it was later determined probable cause was lacking. If the affidavit established “Kathy” acted with seeming control over the residence, pulled the drugs from a storage area, indicated she was staying at the residence for a particular length of time, or was a close relative of Steve Runge, the affidavit would arguably provide the necessary nexus. Arguably, evidence that “Kathy's” name appeared on mail delivered to the house or utility bills for the house were paid by “Kathy” would also have allowed the necessary inference to be drawn. However, no such facts are found in the affidavit.
We therefore find the warrant should never have been issued and the officers did not act in good faith in relying on it. The motion to suppress should have been granted. We need not address the remaining issues raised by appellant.
1. United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.
THAXTER, Associate Justice.
ARDAIZ, Acting P.J., and DIBIASO, J., concur.