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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Mark Edward SMITLEY, Defendant and Respondent.

Cr. 39682.

Decided: January 07, 1982

Michael D. Bradbury, Dist. Atty., County of Ventura, Raymond J. Inetar, Asst. Dist. Atty., Ken W. Riley, Deputy Dist. Atty., for plaintiff and appellant. Taylor, McCord, Paul & Johnson by Robert L. McCord, Jr., Ventura, for defendant and respondent.

Mark Edward Smitley was charged by information with the crimes of possession of cocaine, maintaining a place for the sale thereof, and with transporting the same (Health & Saf. Code §§ 11350(a), 11366(a) and 11352(a)).

His motion to suppress evidence obtained by virtue of a search warrant was granted upon the trial court's finding the affidavit supporting the warrant contained false material facts and that there had been material facts recklessly omitted therefrom.   When the People thereafter represented insufficient evidence remained to justify prosecution, the court dismissed the case on its own motion.

The facts pertinent to the matter and which provide the framework for our disposition are these.

Pattie Dukes, for reasons not clearly specified, undertook to work with police as an informant and agent respecting illicit drug dealing by her nephew, Rickie Hughey.   After making preliminary arrangements to purchase cocaine from him, Dukes was outfitted with an electronic recording unit and given $160 in prerecorded buy funds.   Somewhere between 5:00 and 6:00 p.m. on May 13, 1980, she proceeded thus equipped to Hughey's Santa Paula home, where she found the latter and his brother.   Hughey, in response to her question whether he “had anything,” told her to go home and wait and that he would be there in twenty minutes.   At the appointed time, Hughey drove up to Dukes' residence, also in Santa Paula, and, remaining in his truck, took the $160 from her with the advice he had to go to Ventura to get “it.”

Having been made aware of these conversations, police officers then followed Hughey's truck in their own vehicles.   After proceeding through the main portion of Santa Paula, Hughey stopped at a self-service gas station.   There he was observed through binoculars by officer James Horn apparently to place gas in the truck and make cash payment therefor to a female station attendant, who, it also appeared, gave him change in dollar bills.

Hughey then continued out of the city of Santa Paula in the direction of Ventura, some ten miles away.   Three to four miles outside the former, however, in an area largely agricultural and characterized by citrus and avocado groves, he turned into a driveway leading to two houses located about 150 feet apart.   Horn, still following with other officers, was able to observe Hughey approach to the door of one of the houses on foot, but, because of a visual obstruction created by citrus trees, could see nothing else until Hughey, some ten minutes later, exited the premises, again in his truck.

Hughey then returned to Dukes' residence in Santa Paula, gave her a bindle containing one-quarter grain of cocaine, and returned a portion of the $160 to her, after telling her he had spent $5 of it for gas.

Based upon the foregoing, officer Horn, together with an assistant district attorney, prepared the affidavit in question and obtained a search warrant for the residence described, which was Smitley's home.   When the warrant was executed, police discovered various items of contraband, as well as two of the prerecorded bills provided to Dukes.   On the strength of the discoveries, Smitley was arrested.   Until this time, the authorities had no knowledge who lived in the house nor any information it was used for illegal drug transactions.

Insofar as material herein, Horn's affidavit set out the following:

“I saw a person who I recognized as Ricky Hughey leave [his] house, get in a car and drive to the residence of the informant.   Approximately 5 minutes later I saw Hughey drive his car from the informant's residence and I then followed him directly to the above described [Smitley's] premises.   I saw Hughey park in the driveway of the above described premises and walk up to the front door of the residence.   I then lost sight of him.   I continued to watch the above described premises and approximately ten minutes later I saw Hughey pull his car out of the driveway and then drive directly back to the informant's residence.   I did not see Hughey stop at any other residence during the entire surveillance or make contact with any people.”

From this, and in view of the facts above recited, it is clear the affidavit contained at least two misstatements in that (1) Hughey did not drive directly to Smitley's residence from that of Dukes, and (2) he did make contact with other persons during the surveillance.   Without setting out the remainder of the affidavit's contents, it is also clear there was omitted therefrom the facts known to Horn, that;  (1) Hughey's brother was at Hughey's residence when Dukes went there;  (2) Hughey indicated to Dukes he would go to Ventura to obtain the contraband;  (3) Hughey stopped at the gas station and engaged in some kind of transaction with the attendant;  (4) Hughey could not have been observed by Horn to enter or leave Smitley's residence because of the visual obstruction created by the citrus trees;  (5) there were two houses at the site of Smitley's residence;  and (6) that Smitley's residence was not known by police to be a site of illicit traffic in drugs.

The trial court, as noted, found these deficiencies fatal to the warrant's validity and concluded the misstatements were recklessly made.1  For the reasons hereinafter set out, we disagree.

It is urged initially on Smitley's behalf that the matter is one to be disposed of on appeal by virtue of the facts the trial court's finding respecting the reckless nature of the misrepresentations, being a finding of fact supported by substantial evidence, is not subject to revision here (see People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621), and that that finding is sufficient to invalidate the warrant without more.   (See People v. Kurland (1980) 28 Cal.3d 376, 390, 168 Cal.Rptr. 667, 618 P.2d 213.)   While we do not question the rule the fact finding power of a trial court is such that its findings must be upheld on appeal if supported by substantial evidence (People v. Lawler, supra, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621), we likewise are of the opinion the standard of review of the legal conclusions drawn from those facts is otherwise.   So, as reiterated in People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961, there is a “two-step process by which a superior court rules on a motion to suppress evidence under section 1538.5, and the different standard by which an appellate court reviews each of those steps.   In the first step the trial court must ‘find the facts' relating to the challenged search or seizure:  e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response.   These are traditional questions of fact, and the statute vests the superior court with the power to decide them.  (Pen.Code, § 1538.5, subd. (i).)  Accordingly, we reaffirmed in Lawler (at p. 160) that for the purpose of finding those facts ‘the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’

“No less important, however, is the second step of the process.   As we observed in Lawler, ‘The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.’  (Ibid.)  Because ‘that issue is a question of law,’ the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon.   Rather, we explained, in such review it is ‘the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.’   (Ibid.)  On that issue, in short, the appellate court exercises its independent judgment.”

In the present instance, while the questions what Horn perceived or knew or believed about Smitley's stop at the gas station and what he did or did not do respecting the same vis-a-vis his affidavit are questions of fact, whether what he did was reckless is a question of law, or, stated otherwise, the legal conclusion derived from those facts.   Such being the case, we are bound to the conclusion only to the extent that is required by the facts claimed to support it.   Here, in our view, no such factual findings are present.   To the contrary, the record is such as to call for a different result.   Thus, officer Horn testified on the issue that:

“Number one, because when the informant left his house on Acacia Road * * *, and went to her house and obtained the money, he [Hughey] said he had to go to Ventura to buy the dope, and they [sic] would be back in about an hour—that indicated to me—again, that indicated to me that he did not have the dope—when he went to the gas station, again he said he had to trip out of town—I interpreted it to be a gas-buying situation—what I saw transpire appeared to be a typical money transaction for gasoline, and that's it—and then when he left, he continued on out toward out of town, like he would be taking the back road, Telegraph Road, to Ventura.

“Again, he had not purchased any dope because he was going the wrong direction for the delivery, which would have been in the wrong direction.”

No other evidence on the point was forthcoming.   The explanation, reasonable on its face, therefore could not have provided any basis for the conclusion the fact of Hughey's stop was recklessly withheld from the affidavit, unless it were the case the trial court did not believe the testifying affiant.   But no finding to that effect, nor any indication the matter was one of credibility, appears from the record.   Accordingly, the conclusion the misstatement Hughey contacted no other people was recklessly made is without support.

Having so decided, it remains for us to determine whether under any other rationale the order granting the suppression motion should be affirmed, or, in other words, whether the search warrant, because of the misstatements and omissions, should yet be seen as defective.

For this purpose, it may be assumed the misstatements and omissions involved were negligently made.   Respecting the former it is then necessary to employ the “correct and retest” device;  concerning the latter, it must first be determined whether the omissions were material, as that term is properly understood in this context, in order then to conclude whether the “add and retest” formula should be applied.  (See People v. Kurland, supra, 28 Cal.3d 376, 386–388, 168 Cal.Rptr. 667, 618 P.2d 213.)

Under the first of these, it seems clear the misstatements Hughey had gone “directly” to Smitley's residence and had not made “contact with any people,” when excised from the affidavit leave intact a residue of factual information upon which it might fairly be determined it was “substantially probable there [was] specific property lawfully subject to seizure [then] located in the particular place for which the warrant [was] sought.”  (People v. Cook (1978) 22 Cal.3d 67, 84 at fn. 6, 148 Cal.Rptr. 605, 583 P.2d 130;  see also Theodor v. Superior Court (1972) 8 Cal.3d 77, 100–101, 104 Cal.Rptr. 226, 501 P.2d 234.)

We similarly conclude those factual details omitted from the affidavit were not material under a test which defines that term as meaning their absence made the affidavit substantially misleading.  (People v. Kurland, supra, 28 Cal.3d 376, 385, 168 Cal.Rptr. 667, 618 P.2d 213.) 2  Put another way, we are of the view the facts known to Horn but not included by him in the affidavit were not such, because of their inherent probative force, as would have created a substantial possibility their inclusion would have altered a reasonable magistrate's probable cause determination.  (Id., at p. 385, 168 Cal.Rptr. 667, 618 P.2d 213.)   Thus, as noted, it was not disclosed Hughey's brother was with him at Hughey's residence when Dukes initially made arrangements for the buy, that Hughey stopped en route to Smitley's to buy gas, that he had indicated to Dukes he was going to Ventura to obtain the contraband, that he could not be observed actually entering or leaving Smitley's home and that there were two residences at the latter location rather than just one.   Such information, or at least most of it, should have been part of the data upon which the warrant was sought.   Its absence, however, left for the magistrate a description of facts which in all events justified authorization of the search, in that he was informed a reliable police informant had arranged a controlled purchase of drugs, that the suspect seller agreed at that time to go and get the contraband, that he proceeded to the site of a specified residential location where he was seen to approach the door, and that after a very short interval he retraced his path to the informant and supplied her with the unlawful substance.   Under the circumstances present, no more was required.

The orders appealed from are reversed.


1.   “THE COURT:  Well, this is the way I see it—first of all, a search of somebody's house is an important-type act—now, the Supreme Court says this, the sanctity of the man's home—I don't declare it's beyond a reasonable-doubt standard, but it's got to be a reasonable standard, before you can break someone's door down in the middle of the night, what they have about this particular house—no evidence of any prior transactions at that place, didn't even know who lived there, nothing—saw one man who got as far as maybe standing in front of the front door of the house—if I were a magistrate, issuing that warrant, I'd want to be pretty, pretty sure because that's a rather unusual issuance of a search warrant under those facts as to a house—the only relationship-okay.“Unequivocably, in the transcript—and it says it in four or five different places—it says that the informant says—not the informant, the other defendant said he had to go to Ventura to pick it up, it's all the way through, not one word in this transcript, and it says he had to go to Ventura to pick it up—he didn't go to Ventura, about one-fourth of the way.   If it had been written in that transcript and I was the magistrate and he said he was going to go to Ventura to pick it up, I would have questioned the officer quite a bit about the inconsistency with saying he has to go to Ventura, and he goes down the road a few miles, a fourth of the way, would have concerned me, would have been something I wanted to know before I order some house in the outskirts to be broken into—was this a subterfuge, did he tell this other person just to confuse his tracks as to what he was going to do—because it wasn't consistent.   Okay.  Secondly, the officer says unequivocably, I did not see him stop at any other residence or make contact with any people, but he actually saw him make a hand-to-hand money transaction with somebody—I would have wanted to know that as a magistrate, and I would have wanted to talk about it, and gotten some of the details, and as far as I'm concerned that's pretty relevant and pretty material—and I'm really pretty shocked—that somebody can unequivocably say under oath didn't make any contact with any other person—in addition to that, obviously the other things that Mr. McCord has pointed out about his being alone, and in the rest of the house, I don't know what I would have done as a magistrate if I had read the affidavit with the facts that I had stated, and he said he was going to Ventura—however, for this was a house a quarter of the way to Ventura, he did stop enroute at a help-yourself gas station, he did have a hand transaction with someone there, in which appeared some money was changed, he was available in his residence and other places, those are all things—I really think on something this skimpy as a magistrate in good conscience I would have questioned the officers in good conscience and—before I go out there—and I'm not going to say it was a deliberate failure to accurately represent on the part of the officer—I think it was a material one, and I really think the one about not stopping anywhere in my mind is a reckless one and the 1538.5 is granted.”

2.   On this issue, of course, we exercise our independent judgment, the question of materiality being one of law.  (People v. Kurland, supra, 28 Cal.3d 376, 392 at fn. 10, 168 Cal.Rptr. 667, 618 P.2d 213.)

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.