The PEOPLE, Plaintiff and Respondent, v. Jerry Arnold HOFF et al., Defendants and Appellants.
An information was filed in Kern County Superior Court on October 14, 1992, charging both appellants with one count of unlawful possession for sale of a controlled substance, to wit: methamphetamine, in violation of Health and Safety Code section 11378, and one count of unlawful possession for sale of marijuana, in violation of Health and Safety Code section 11359. It was further alleged, as to count one, that appellants were personally armed with a firearm during the commission of said offense, within the meaning of Penal Code section 12022, subdivision (c). As to count two, it was alleged that both appellants were armed during the commission or attempted commission of said offense, as contemplated by Penal Code section 12022, subdivision (a)(1). Appellants were arraigned on October 15, 1992, entered pleas of not guilty to both counts and denied each of the enhancements.
On November 5, 1992, appellant Mary Hoff filed a motion to quash the search warrant and suppress the items discovered during the search of her home. The following day, appellant Jerry Hoff filed a motion to join in the motion brought by Mary Hoff. The prosecution filed their opposition on November 9, 1992.
During the hearing on said motion, the parties stipulated that the affidavit in support of the search warrant could be admitted into evidence. Testimony was elicited from the officer who both drafted the affidavit and searched the Hoff home. After counsel for the parties argued their respective positions, the matter was submitted for decision. On November 12, 1992, the trial court issued a written order finding a lack of probable cause to support issuance of the warrant but nevertheless upholding the search based on the good faith exception to the exclusionary rule first recognized in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.
On November 20, 1992, appellants withdrew their previously entered pleas of not guilty and entered pleas of no contest to count one (possession for sale of methamphetamine). On motion of the district attorney, the remaining count and both arming allegations were stricken as to both appellants.
Imposition of sentence occurred on December 20, 1992. Probation was denied and both appellants were sentenced to state prison for a term of two years.
Pursuant to appellants' request, a certificate of probable cause was issued by the court on December 30, 1992. Appellant Mary Hoff filed her notice of appeal on the same day. Appellant Jerry Hoff did not file his notice of appeal until February 18, 1993.
Both cases have been consolidated on appeal.
Obtaining the Search Warrant
Officer Johnson received information from a “confidential reliable informant” (hereinafter “CI”) that, within the past 10 days, the CI had personally seen appellants Jerry and Mary Hoff in possession of a quantity of methamphetamine inside the Hoff residence located at 1101 Calloway Drive in Bakersfield, California. The CI told the officer that the Hoffs possessed the methamphetamine for sale. The CI also told Officer Johnson that he/she was familiar with the appearance and packaging of methamphetamine for sale due to personal use in the past.
The CI described Jerry Hoff as a white male adult, approximately 40–45 years of age, 5′ 11″, 170 pounds, with brown hair. Mary Hoff was described as a white female adult, approximately 30–35 years of age, 5′ 2″, 100 pounds, also with brown hair.
Officer Johnson stated that the CI had, within the last 60 days, supplied him with information that led to the arrest of a person or persons illegally possessing controlled substances as well as seizure of said substances. The officer acknowledged that the CI agreed to give him the information regarding the Hoffs in return for leniency on pending criminal charges.
After receiving this information, the officer verified that the residence in question belonged to the Hoffs. By checking Department of Motor Vehicles records, Officer Johnson learned that appellant Jerry Hoff was born on May 12, 1943, and that appellant Mary Hoff was born on March 21, 1957.1
The above-mentioned information was made a part of the affidavit in support of the warrant prepared by Officer Johnson and presented to the magistrate for his consideration.2 The affidavit also described Officer Johnson's experience and training. The officer concluded that, based upon the facts as set forth in the affidavit, the Hoffs were “currently engaged in the possession and sale of illegal controlled substances, from [their] residence․”
The warrant was signed on June 23, 1992, and executed on June 30, 1992, at 5:22 a.m.
During the search of the Hoff residence, officers found 22.1 grams of methamphetamine,3 approximately 908 grams of marijuana, numerous weapons, a triple beam scale, $3,001 in currency, and miscellaneous items associated with drug use.
Testimony of Affiant During The Hearing on the Motion
Officer Johnson testified that, at the time of the hearing, he had six years of experience as a law enforcement officer. As a City of Shafter Police Officer, he claimed to have written approximately 35 search warrants in the past two years.
Officer Johnson indicated that, in his opinion, the affidavit in question contained sufficient information to support issuance of the warrant. Although he admitted that he did not have either a senior officer or a district attorney review the affidavit prior to submitting it to the judge for his approval.
The officer also testified that the information contained in the affidavit was accurate to the best of his knowledge. He said that he thought the information received from the Department of Motor Vehicles adequately corroborated the CI's statement identifying the Calloway address as the Hoffs' residence.
In addition, the officer testified that he had presented similar affidavits in the past that resulted in warrants authorizing nighttime service being issued. These warrants were similar in that they too involved searches for contraband or drugs.
Finally, Officer Johnson indicated that he searched the Hoffs' residence believing he had authority to do so once the warrant was signed by the judge. He also indicated that he carried out the search in accordance with the terms of the warrant.
I.STANDARD OF REVIEW
This appeal concerns a ruling by the lower court denying appellants' motions to suppress the evidence obtained during what they claim to be an illegal search of their residence. The principles by which an appellate court reviews such rulings are well established and can be summarized as follows:
“In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.]
“The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominately one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.] The reason is plain: ‘it is “the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness. [Citation.]” ’ ” (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221; accord People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Ingram (1993) 16 Cal.App.4th 1745, 1750, 21 Cal.Rptr.2d 33.)
GOOD FAITH EXCEPTION 4
Appellants contend the trial court erred when it upheld the search of their home based on the good faith exception to the exclusionary rule.5 They contend the affidavit in this case contained so little information that a reasonably well trained officer would have known the affidavit did not establish probable cause and therefore would not have sought a warrant. As such, they insist that the good faith exception has no application here and ask that we reverse the trial court's ruling denying their motions. Respondent concedes the affidavit did not provide sufficient evidence to support a finding of probable cause but insists the trial court correctly found the good faith exception applicable to the case sub judice.
In United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405, the Supreme Court held the exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in good faith reliance on a search warrant issued by a detached and neutral magistrate but subsequently found to be invalid. (Id. at pp. 905–922, 104 S.Ct. at 3411–3420.) The Court reasoned that, “ ‘[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” (Id. at p. 919, 104 S.Ct. at p. 3419.) The High Court went on to describe four situations where suppression would continue to be an appropriate remedy. (Id. at p. 923, 104 S.Ct. at p. 3420.) One such situation, alleged to be at issue in the present case, occurs when the affidavit in support of the warrant is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (Ibid.)
The objective standard adopted in Leon “requires officers to have a reasonable knowledge of what the law prohibits.” (Id. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20, quoting United States v. Peltier (1975) 422 U.S. 531, 532, 95 S.Ct. 2313, 2315, 45 L.Ed.2d 374.) In People v. Camarella (1991) 54 Cal.3d 592 [286 Cal.Rptr. 780, 818 P.2d 63], our high court interpreted the Leon standard:
“We turn to the question of whether evidence must be excluded if it is seized pursuant to a warrant unsupported by probable cause. Under high court cases dating from Weeks v. United States (1914) 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652], evidence seized in violation of a defendant's Fourth Amendment rights has been subject to exclusion from the prosecution's case-in-chief. Justice White's opinion for the court in Leon concluded, however, that the ‘benefits' of this rule were ‘marginal or nonexistent’ in a case in which the challenged evidence was ‘obtained in objectively reasonable reliance on a subsequently invalidated search warrant,’ and that exclusion in such situations is inappropriate. [Citation.] The court observed, ‘ “If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” ’ [Citations.]
“The court cautioned, however, that although ‘ “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search” ’ [citations, italics added], there are limited situations in which this presumption does not apply. An ‘officer's reliance on the magistrate's probable-cause determination ․ must be objectively reasonable, cf. Harlow v. Fitzgerald [ (1982) ] 457 U.S. 800, 815–819 [102 S.Ct. 2727, 2736–2739, 73 L.Ed.2d 396], [citation], and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.’ [Citation.] In a footnote after the citation to Harlow v. Fitzgerald (1982) 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] [citation], the court explained that its inquiry in this regard will be ‘confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.’ [Citation.] The court then described four situations in which suppression would remain an appropriate remedy. The third situation—urged by defendant in this case—provides as follows:
“ ‘Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” [Citations]’ (Fn. omitted.)” (People v. Camarella, supra, 54 Cal.3d at pp. 602–603[, 286 Cal.Rptr. 780, 818 P.2d 63].) 6
The Camarella court then synopsized the test after examination of Malley v. Briggs (1986) 475 U.S. 335 [106 S.Ct. 1092, 89 L.Ed.2d 271] to conclude:
“․ The test ․ is whether a reasonable and well-trained officer ‘would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ [Citation.] But if such an officer would not reasonably have known that the affidavit (and any other supporting evidence) failed to establish probable cause, there is no reason to apply the exclusionary rule, because there has been no objectively unreasonable police conduct requiring deterrence. [Citation.] An officer in this latter situation will be permitted to rely on the warrant, and Leon 's general rule of nonexclusion will apply, unless one of Leon 's other limited ‘exclusion’ situations is triggered.” (People v. Camarella, supra, 54 Cal.3d at pp. 605–606, 286 Cal.Rptr. 780, 818 P.2d 63, emphasis added.)
The inherent difficulty confronting a trial judge or a reviewing court is differentiating between an affidavit which fails to establish probable cause but is not so woefully deficient that an officer could objectively be charged with knowledge that it was insufficient and an affidavit which not only fails to establish probable cause but is also so deficient that it may objectively be concluded the officer must have known that it was insufficient. In other words, when is not enough really not enough?
The test of Leon is predicated upon what a reasonable and well trained police officer “would have known.” Therefore, this opinion seeks to establish some minimum guidelines as to what we believe a reasonably well trained police officer would be expected to know. Without such guidelines, we simply engage in an “I know it when I see it” approach to judicial review.
It would seem logical to conclude an officer should know the legal criteria for issuance of a valid search warrant. This is essentially the other side of Leon 's reference to “knowledge of what the law prohibits.” (Leon, supra, 468 U.S. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20.) In other words, we conclude that a reasonably well trained police officer can be expected to be aware of the basic requirements necessary to establish probable cause requisite to the issuance of a valid search warrant. For example:
(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 (1983) 462 U.S. 213, 230 [103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 548]; 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. (Sgro v. United States (1932) 287 U.S. 206, 210–211 [53 S.Ct. 138, 140, 77 L.Ed. 260, 85 A.L.R. 108]; People v. Mesa (1975) 14 Cal.3d. 466, 470, 121 Cal.Rptr. 473, 535 P.2d 337.);
(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, 76 L.Ed.2d at p. 543]; U.S. v. Hove (9th Cir.1988) 848 F.2d 137, 139.); and
(4) the affidavit must contain facts identifying with particularity the place to be searched and the items to be seized. (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3420; Steele v. United States No. 1 (1925) 267 U.S. 498, 501 [45 S.Ct. 414, 415, 69 L.Ed. 757]; United States v. Alberts (8th Cir.1983) 721 F.2d 636, 637.)
While standard warrant requirements are relatively fixed, demonstrating or meeting those requirements is not. This is due, in large part, to the widely varying factual scenarios each case presents. “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” (Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.) Herein lies the problem. It is the officer's charge to attempt to satisfy the search warrant requirements by submitting, for the magistrate's consideration, the facts needed to establish probable cause. It is then the magistrate's job to determine whether the facts presented satisfy the warrant requirements. Under Leon, we begin with the proposition that:
(1) the magistrate failed to properly evaluate the legal sufficiency of the affidavit in support of the warrant; and
(2) the facts submitted by the officer are legally insufficient to justify issuance of the warrant.
Thus, Leon assumes the officer has failed to meet legal standards for issuance of a search warrant.
Leon makes it clear that the officer's failure to assert facts sufficient to support a finding of probable cause is not enough, of itself, to result in suppression of the evidence seized pursuant to the warrant issued in error. As Leon explains, the consequence of suppression is predicated on whether the officer “would have known that his affidavit failed to establish probable cause.”
Certainly, if there is a specific legal requirement that is not addressed by the warrant, then that failure would not be expected of a reasonably well trained officer. The greatest difficulty encountered under a Leon analysis occurs when an officer puts forth some facts in his/her affidavit in an attempt to satisfy these warrant requirements. Since a reasonably well trained police officer is expected to know what the basic legal warrant requirements are, then that officer would also be expected to know he or she must put facts in the affidavit addressing each of those requirements. Realistically, a review of a warrant will demonstrate whether an officer has submitted any facts directed towards establishing individual warrant requirements. If there are no facts in the affidavit that attempt to meet the warrant requirement—i.e., no facts describing the places to be searched, etc.—then one could conclude a reasonable well trained officer would recognize the application was deficient. Which brings us to the next step.
What if the officer includes some facts directed towards establishing the warrant requirement? We wish to encourage officers to get search warrants—not to sanction them when they make an arguable effort and fail. The fact that, as judges, we would not issue the warrant based on our belief that probable cause has not been established begs the question. The fact that the affidavit does not supply probable cause begs the question. The lack of probable cause is a given under Leon. We focus instead on the information provided by the officer at the time he or she seeks the warrant and whether a reasonably well trained officer would have known the information was insufficient to establish probable cause. This distinction is important because a reasonably well trained officer will not be as well versed in the nuances of probable cause as the judges who sit in review of his/her affidavit.
As previously explained, Leon 's “good faith” analysis does not arise unless the facts do not generate the essence of probable cause. What then is probable cause? In Illinois v. Gates, supra, 462 U.S. 213, 103 S.Ct. 2317, the court explained the concept in the following way:
“[T]he term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation․ It imparts a seizure made under circumstances which warrant suspicion․ While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may be helpful, it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” (Id. at p. 235 [103 S.Ct. at p. 2330, 76 L.Ed.2d at p. 546], internal quotation marks omitted.)
Therefore, the good faith exception is not applied until after a determination has been made that the affidavit does not support a conclusion that a probability of criminal activity exists. Necessarily, this means that the good faith exception may still be appropriately applied even though the facts averred are insufficient to support a conclusion that there is a probability of criminal activity.
In our view, under the third Leon exception, the only way a reasonably well trained police officer would know that the search warrant was not legally issued is if the officer either made no effort to put forth facts to meet each of the warrant requirements or put forth facts which would reasonably be construed as having little or no bearing on the desired inference necessary to support the warrant requirement. However, where the officer puts forward facts which would, in a reasonably well trained officer, generate a reasonable suspicion directed towards the desired inference, the question of whether those facts fall above or below the threshold of probability is the job of judges. Conversely, if the facts would not generate even a reasonable suspicion directed towards the desired inference, let alone a probability of the desired inference, then we can objectively conclude the officer knew or should have known that the affidavit was deficient at the time he/she both sought and executed the warrant.
Here, appellant seeks to impose upon the officer the standard of determining whether probable cause exists. This clearly is the function of the magistrate and one of the principle reasons the officer takes the warrant to the magistrate in the first place. The question of whether a particular set of facts generate only a reasonable suspicion or the greater standard of a probability of criminal activity is one which taxes judges even with the benefit of hindsight.
Appellant also argues that not only did the affidavit in support of the warrant fail to establish probable cause, but that it did not even present a close or debatable question. As such, the officers who conducted the search of their home could not, in good faith, believe in the validity of the warrant. In essence, she would have us limit application of the good faith exception to those cases involving close or debatable questions of probable cause. Respondent concedes the lack of probable cause, but does not discuss whether this case presents a close or debatable issue.
Appellant has not specified whether the close or debatable question to which she refers is one for the magistrate or one for the officer. Therefore, we shall address each contention.
Under Leon, if the information contained in the affidavit provided in support of the application for the search warrant presented a close or debatable issue, the search would be upheld. “[W]e have expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ [Citation.] Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate's determination.” (United States v. Leon, supra, 468 U.S. at p. 914 [104 S.Ct. at p. 3416, 82 L.Ed.2d at pp. 692–693].) Further, if it was a close or debatable issue for judges then how could we reasonably expect a police officer to know the warrant was deficient?
We also believe that the information contained in the affidavit need not present a close or debatable question for a reasonably well trained officer before the good faith exception to the exclusionary rule can be applied to save the fruits of a search conducted pursuant to a warrant subsequently declared to be invalid. We base this conclusion on Leon 's express declaration that the “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.” (Leon, supra, 468 U.S. at p. 922, fn. 23, 104 S.Ct. at p. 3420, fn. 23, emphasis added.) Knowing an affidavit is insufficient is not the legal equivalent of suspecting that it may be.
While some of the language used in Camarella might be loosely interpreted as requiring exclusion in all cases where the information contained in the affidavit did not present a close or debatable question for a reasonably well trained officer, we do not believe that to be the holding of Camarella. A close reading of Camarella shows that our high court did not deviate from the standard set forth in Leon. The court simply concluded that the situation with which it found itself faced presented a close or debatable question for a reasonably well trained officer and that, as a result, “it [could] not be said that [the detective] should have known that his affidavit failed to establish probable cause (and hence that he should not have sought a warrant).” (Camarella, supra, 54 Cal.3d at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.)
To summarize then, when an officer makes an effort to establish, through the presentation of relevant facts in an affidavit, the basic requirements for issuance of a search warrant, and that effort cannot be described as desultory or no effort at all, we will not sanction the police officer by excluding the evidence because the officer chose to submit the question to a magistrate who failed in his or her duty. By contrast, in those circumstances where it is evident that no effort was made to comply with the search warrant requirement by inserting facts that would, in a reasonably well trained officer, generate a reasonable suspicion towards the desired inference we can then say objectively that the officer should have known that the affidavit was insufficient and should not have been submitted. While facts may not objectively give rise to the degree of certitude that a magistrate should require, that does not mean they are wholly beyond the realm of logical inference or suspicion. Good faith assumes that an effort is made, it does not require that the effort be successful. Objectively, a reviewing court can only conclude an effort was made if there are some facts averred upon which a suspicion of criminal activity could reasonably be predicated. When an officer makes an evident effort to comply with the requirements of the law, we do not think it realistic to conclude that the officer should know that those efforts are insufficient.
Directing these principles to the case before us, appellant argues that the officer's efforts to establish the confidential informant's reliability can not pass muster even under the Leon standard. As we have noted, where information comes from an informant, a basic warrant requirement provides that the affidavit must contain facts which establish the informant is reliable and the information given is factual, not 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, 76 L.Ed.2d 527, 548]; People v. Ramey, supra, 16 Cal.3d at p. 269 [127 Cal.Rptr. 629, 545 P.2d 1333].)
While the High Court's opinions have continually stressed the importance of corroboration of an informant's tip through independent police work, “[a]n affidavit relying on hearsay ‘is not deemed insufficient on that score, so long as substantial basis for crediting hearsay is presented.’ ” (Camarella, supra, 54 Cal.3d at p. 601, 286 Cal.Rptr. 780, 818 P.2d 63 quoting Gates, supra, 462 U.S. at pp. 241–242, 103 S.Ct. at p. 2334.) An informant's veracity, reliability, and basis of knowledge are all highly relevant factors that, together or separately, are clearly relevant to the probable cause determination. (Gates, supra, 462 U.S. at p. 230, 103 S.Ct. at p. 2328; Camarella, supra, 54 Cal.3d at p. 601, 286 Cal.Rptr. 780, 818 P.2d 63.) “ ‘[A] deficiency in one [of these factors] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ ” (Camarella, supra, 54 Cal.3d at p. 601, 286 Cal.Rptr. 780, 818 P.2d 63, quoting Gates, supra, 462 U.S. at p. 233, 103 S.Ct. at p. 2329.)
“ ‘An informant's veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions.’ [Citation.]” (People v. Terrones (1989) 212 Cal.App.3d 139, 146–147, 260 Cal.Rptr. 355.) “In order to establish the reliability of an informant it is not necessary to relate that his prior information led to convictions. It is sufficient that the prior information was accurate or was ‘of such substance as to cause a reasonable person to conclude that it is reliable.’ [Citations.]” (People v. Dumas (1973) 9 Cal.3d 871, 876, 109 Cal.Rptr. 304, 512 P.2d 1208.) “While one past incident showing reliability is not sufficient to compel a magistrate to accept the reported observations of an informant is true, he does not abuse his discretion if he arrives at that conclusion․” (People v. Gray (1976) 63 Cal.App.3d 282, 288, 133 Cal.Rptr. 698; see People v. Dumas, supra, 9 Cal.3d at p. 876, 109 Cal.Rptr. 304, 512 P.2d 1208 [affidavit stating that information received from confidential informant on a single prior occasion that led to arrest of suspect and being held to answer on charges was found to be sufficient to establish reliability of informant].) As a basic warrant requirement, we conclude a reasonably well-trained officer should know that the affidavit he/she prepares must include facts directed at satisfying these requirements.
Here, the officer's affidavit stated that the informant had seen the appellants in possession of a quantity of methamphetamine inside their residence and that the informant was personally familiar with the appearance of methamphetamine and the methods used to package the drug for sale due to personal use in the past. Further, the affidavit stated that the informant had, within the last 60 days, supplied the officer with information that led to the arrest of a person or persons illegally possessing controlled substances as well as seizure of these substances. The officer noted that the informant had given him the information in return for leniency on pending criminal charges. The officer verified the residence in question as belonging to appellants and obtained additional information from the Department of Motor Vehicles regarding appellants' physical description and vehicle registration.
Therefore, it is apparent that the officer submitted facts which attempted to show personal knowledge on the part of the informant and that the informant had, in the past, given reliable information. We do not view this as no effort at all or as an assertion of facts which would not reasonably support an inference of the desired conclusion of reliability. Therefore, we find that a well trained police officer would not have known that the affidavit in question failed to establish reliability of the informant.
It is also important to note that this case concerns information obtained, not from an anonymous tipster or an untested informant as appellants suggest, but rather from a confidential informant; one who had proven to be reliable on a prior occasion. It is for this reason that appellants' reliance on People v. Fein (1971) 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583; Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 15 Cal.Rptr.2d 17; People v. Johnson (1990) 220 Cal.App.3d 742, 270 Cal.Rptr. 70; People v. Maestas (1988) 204 Cal.App.3d 1208, 252 Cal.Rptr. 739; People v. Costello (1988) 204 Cal.App.3d 431, 251 Cal.Rptr. 325; and Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 216 Cal.Rptr. 817, is misplaced. As these cases make clear, significantly greater corroboration is necessary in cases involving untested or anonymous informants—an issue which is not before us.
Next appellant Mary Hoff claims the affidavit was ambiguous as to the timeliness of the information received from the CI. She contends the information was stale in that it could have been as much as 20 days old at the time Officer Johnson sought the warrant. She cites Sgro v. United States, supra, 287 U.S. 206, 53 S.Ct. 138 in support of her position. Respondent has done nothing to answer her challenge.
In Sgro, the High Court held that the proof presented in support of a search warrant “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” (Id. at p. 210, 53 S.Ct. at p. 140.) This remains the standard by which timeliness of information is judged today. (See e.g., People v. Mesa (1975) 14 Cal.3d 466, 470, 121 Cal.Rptr. 473, 535 P.2d 337; Alexander v. Superior Court (1973) 9 Cal.3d 387, 393, 107 Cal.Rptr. 483, 508 P.2d 1131.) However, contrary to appellant Mary Hoff's contention, Sgro does not stand for the proposition that 20 day-old information is stale.
In Sgro, a majority of the High Court found the search illegal because the magistrate took no evidence on the issue of probable cause when he issued a second warrant by simply redating the first warrant that had statutorily expired. (Id. 287 U.S. at p. 212, 53 S.Ct. at p. 141.) The support for appellant's position seems to come from language found in the opinion of one concurring justice—language that can hardly be said to represent the opinion of the Court. (See id. at pp. 212–216, 53 S.Ct. at pp. 141–142 [concurring opinion of Justice McReynolds].)
Whether information is timely depends upon the circumstances of each case. This interrelationship has been explained as follows:
“The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.” (2 La Fave, Search and Seizure (2d ed. 1987) § 3.7(a), pp. 77–78, quoting Andresen v. State (1975) 24 Md.App. 128, 331 A.2d 78, aff'd sub nom Andresen v. Maryland (1976) 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627.)
Here, the inference that methamphetamine would be found in appellant's home as of the date the warrant was issued is somewhat tenuous. The affidavit does not contain any information as to the quantity of drug being offered for sale. The affidavit is also noticeably lacking in any indicia of ongoing criminal activity. Similarly, there is a lack of evidence regarding the length of time the alleged activity had been occurring. On the other hand, the criminal activity observed was alleged to have been committed in appellant's residence—a residence she had maintained for a sufficient period of time so that both her driver's license and vehicle registration bore the Calloway address.
It is worth noting that the Justices of the United States Supreme Court could not agree as to whether 20 days was untimely under circumstances very similar to those presented by this case. (See Sgro v. United States, supra, 287 U.S. at p. 212, 53 S.Ct. at p. 141 [dissenting justices would vote to uphold search based on 20–day–old information], at pp. 212–216, 53 S.Ct. at pp. 141–142 [conc. op. Justice McReynolds concludes information is stale].) Indeed, if the United States Supreme Court was divided on this issue, how can we say that a reasonably well trained police officer would have known that the information presented here was insufficient when submitted to the issuing magistrate? We cannot.
We therefore conclude that the search in question falls within the Leon exception of good faith as outlined by our High Court in Camarella. We do not believe a reasonably well trained officer would have known that probable cause was lacking. Nor do we believe that the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Accordingly, we find that the good faith exception applies for the reasons heretofore stated.
NIGHTTIME SEARCH **
The judgment is affirmed.
1. At the time Officer Johnson sought the warrant, Jerry Hoff would have been 49 years of age while Mary Hoff would have been 35 years of age.
2. The relevant portions of that affidavit provide as follows:“STATE OF CALIFORNIA—COUNTY OF KERN. SEARCH WARRANT AFFIDAVIT. STATEMENT OF PROBABLE CAUSE. I, Officer Melvin Johnson, have reasonable cause to believe, and I believe, there can now be found at 1101 Calloway Drive, Bakersfield, California, evidence which will tend to establish violations of sections 11377, 11378 and 11379 of the California Health and Safety Code. ¶ 1101 Calloway Drive, Bakersfield, California, is a single story dwelling, green in color, having wood siding, the residence is positioned on the west side of the roadway and it is the first residence south of Brimhall Road, the front door faces east and the numbers 1101 are visible on the front porch area. ¶ Within the past ten (10) days, I was contacted by a confidential reliable informant, hereafter referred to as CRI/X. CRI/X told me that within the past ten (10) days, they have personally seen a White Male Adult, Jerry Hoff, described as 40–45 years of age, 5′ 11″, 170 lbs, brown hair and a White Female Adult, Mary Hoff, described as 30–35 years of age, 5′ 2″, 100 lbs, brown hair, in possession of a quantity of Methamphetamine (crank) inside the residence at 1101 Calloway Drive, Bakersfield, California. CRI/X told me that the subjects Jerry Hoff and Mary Hoff are possessing the Methamphetamine (crank) for sale. ¶ CRI/X told me they have used Methamphetamine (crank) in the past. CRI/X is familiar with what Methamphetamine looks like and the way it is commonly packaged for sale. ¶ CRI/X is currently facing criminal charges and is giving this information with the agreement they will receive leniency on pending case(s). ¶ Your affiant further states that CRI/X has supplied me with information on at least one (1) occasion in the past sixty (60) days, which has resulted in the arrest(s) of person(s) possessing illegal controlled substances and the seizure of illegal controlled substances. ¶ Your affiant conducted a drivers license check through the Department of Motor Vehicles and discovered that California Drivers License number J0938932, is issued to a Jerry Arnold Hoff, dob: 5–12–43, listing his home address to be 1101 Calloway Drive, Bakersfield, California. ¶ Your affiant also discovered that California Drivers License number N4118142, is issued to Mary Elaine Hoff, dob: 3–21–57, also giving a home address of 1101 Calloway Drive, Bakersfield, California. ¶ Subsequent to receiving this information from CRI/X your affiant conducted a drive-by of the residence at 1101 Calloway Drive, Bakersfield, California locating a tan 1981 Chevrolet truck, displaying California license number 1Z13906, parked in the driveway of the residence. ¶ A registration check revealed this same vehicle is currently registered to Jerry Arnold Hoff or Mary E. Hoff, giving their home address of 1101 Calloway Drive, Bakersfield, California․ ¶ Based upon the facts set forth herein, it is your affiant's opinion that the subjects are currently engaged in the possession and sale of illegal controlled substances, from the residence at 1101 Calloway Drive, Bakersfield, California.”
3. In his opening brief, respondent states that 34.6 grams of methamphetamine were seized during the search. However, the sum of the methamphetamine seized as shown on the return on the search warrant equals only 22.1 grams.
4. We do not decide what role, if any, extrinsic evidence plays in good faith analysis under Leon.
5. Appellant Jerry Hoff also argues the lack of probable cause to support issuance of the warrant. However, in light of the fact that respondent does not dispute the lower court's ruling finding a lack of probable cause, we decline to disturb that portion of the decision.
6. The four criteria set forth in Leon are:“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. [Citation.] The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo–Ji Sales, Inc. v. New York, 442 U.S. 319 [99 S.Ct. 2319, 60 L.Ed.2d 920] (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ [Citations.] Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. [Citation.]” (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.)
FOOTNOTE. See footnote *, ante. In the unpublished portion of this opinion we conclude that the nighttime search of appellant's home was reasonable in the constitutional sense despite appellant's claim that the affidavit failed to set forth sufficient facts to justify nighttime service of the warrant.
ARDAIZ, Associate Justice.
STONE, (W.A.) Acting P.J., and HARRIS, J., concur.