PEOPLE v. RIVERA

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. Albert Angel RIVERA, Defendant and Respondent.

Cr. No. B017008.

Decided: April 10, 1987

Michael D. Bradbury, Dist. Atty., County of Ventura, Michael D. Schwartz, Deputy Dist. Atty., for plaintiff and appellant. Kenneth I. Clayman, Public Defender, Mark A. Arnold, Deputy Public Defender, for defendant and respondent.

Defendant Albert Angel Rivera was charged with possession of cocaine for sale (Health & Saf.Code, § 11351) with a special allegation that the amount possessed was 28.5 grams or more (Pen.Code,1 § 1203.073, subd. (b)).  The People appeal from an order of the superior court's dismissing the case against Rivera following the granting of a motion to suppress evidence under section 1538.5.   We affirm.

FACTS

On May 21, 1985, a Ventura County municipal court judge issued a search warrant for Rivera's residence.   The affidavit in support of the warrant stated that on September 17, 1984, Ventura County Deputy Sheriff Montijo received an anonymous phone call at the sheriff's department from a man who stated that while at a party in Thousand Oaks the night before he saw an individual that he knew as Al Rivera with $20,000 cash in his possession.   He saw Rivera purchase a pound of cocaine from an unidentified male Hispanic for $21,000.   The caller further stated Rivera sold approximately a quarter pound of cocaine at the party and that Rivera was not employed.

Another Sheriff's Deputy, Alaniz, received a second anonymous call at the sheriff's department on December 27, 1984, from a man who stated that he knew Rivera and had seen him buy two kilograms of cocaine at a party the night before.   The caller stated that Rivera lived at Apartment L–4 on Warwick Avenue in Thousand Oaks, in the 900 block, and that he drove a 1976 copper-colored Datsun 280Z with wire wheels.   The next day, Alaniz conducted an independent investigation which revealed that Rivera lived at 951 Warwick Avenue, Apartment L–4, Thousand Oaks, and that he drove a Datsun 280Z matching the description given by the anonymous caller.

On May 21, 1985, still another Sheriff's Deputy, Aviles, received a third anonymous call at the Ventura County Sheriff's Department from a man who stated that he had been at Rivera's house at 4188 Minnecota Drive, Thousand Oaks.   The caller stated that he knew the sheriff's department was “trying to bust Al Rivera for coke” and that he had seen almost a pound of cocaine in the house, and over $10,000 in cash in the house.   The caller stated that he had just left the house approximately one-half hour ago, and that Rivera and another individual were talking about having just picked up the cocaine.   The caller stated he had used cocaine in the past and was familiar with its appearance.

Later that day a sheriff's detective went to the Minnecota address and found the Datsun 280Z “at the residence.”   The car had the same license plate he had observed at the Warwick Avenue building.

Sheriff's officers presented the affidavit to the magistrate.   At the magistrate's request the affidavit was amended to reflect there were three separate callers.   The magistrate then signed the affidavit and search warrant.

Sheriff's deputies then immediately drove to Rivera's Minnecota residence, served the search warrant, and recovered 19 “baggies” containing approximately 67 grams of cocaine, razor blades, prefolded bindles, a sifter, a scale, an owe-sheet, cutting agent and various documents containing respondent's name.

At the preliminary hearing on June 10, 1985, respondent moved to suppress all evidence obtained by use of the search warrant under section 1538.5 and to traverse the warrant.   These motions were denied.   On August 1, 1985, in superior court, Rivera's motions under sections 1538.5 and 995, and his motion to traverse the warrant were denied.

On September 4, 1985, the superior court agreed to rehear the section 1538.5 motion, over the objection of the district attorney and then granted it relying specifically on Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 216 Cal.Rptr. 817.   On its own motion the court then dismissed the case against Rivera for insufficient evidence.

Pursuant to section 1238, subdivision (a)(7), the People appeal the order dismissing the case.

DISCUSSION

I.

 The superior court could properly rehear the 1538.5 motion because under Code of Civil Procedure section 128, subdivision (a)(8), every court shall have power to amend and control its process and orders so as to make them conformable to law and justice.   This section has been construed to allow reconsideration of an order suppressing evidence.  (People v. Beasley (1967) 250 Cal.App.2d 71, 77, 58 Cal.Rptr. 485.)   Also, if there is an intervening change in the law in support of a motion to suppress evidence, the trial court may entertain a new motion based on such grounds.  (People v. Superior Court (1971) 4 Cal.3d 605, 611, 94 Cal.Rptr. 250, 483 P.2d 1202.)

II.

In People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961 our Supreme Court explained the two-step process of review of a motion to suppress under section 1538.5.   First, the trial court's finding of facts, express or implied, relating to the challenged search or seizure must be upheld if supported by substantial evidence.   Second, the appellate court must then exercise its independent judgment to measure the facts as found by the trier against the constitutional standard of reasonableness.

In applying the two-step process to the instant case, we conclude that substantial evidence supports the trial courts findings and conclusions.

III.

 Although the affidavit here contained a wealth of allegations about Rivera's criminal activities, it was lacking in one essential ingredient, probable cause.

In making a probable cause determination, the task of the issuing magistrate is to make a practical, common-sense decision whether, given the “totality of circumstances” set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime 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.)   A reviewing court should pay great deference to a magistrate's determination of probable cause.  (Id., at p. 236, 103 S.Ct. at p. 2331.)   No less deference should be paid to a trial court's determination of lack of probable cause.

Prior to the Gates “totality of circumstances” test, the reliability of an informer depended upon the prosecution establishing his veracity and the basis of his knowledge.  (See Aquilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.)   The Gates court expressly rejected the use of these categories as independent requirements stating that the two elements were merely “relevant considerations” in a totality of circumstances analysis.   (See Illinois v. Gates, supra, 462 U.S. at p. 233, 103 S.Ct. at p. 2329;  see also Massachusetts v. Upton (1984) 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721.)   By replacing the Spinelli-Aquilar two-pronged test, Gates put elasticity into probable cause and gave it broader contours.   It did not, however, require us to start from scratch in enunciating rules of probable cause to issue search warrants.

Here, the affidavit mentions three anonymous phone calls concerning Rivera's criminal activities.   Only insignificant details of Rivera's noncriminal activities were corroborated.   Independent police investigation after the second anonymous call revealed only that Rivera lived at a certain address and drove a certain automobile.   The third phone call prompted another investigation no more rigorous than the preceding one.   A detective went to a new address where Rivera now allegedly lived and saw his car “at the residence.”   This general language does not tell us whether Rivera lived at this residence or the specific location of his car in relation to that residence.

We cannot determine that there were in fact three different callers.   After the affidavit was presented to the magistrate, Deputy Alaniz amended the affidavit to state that the calls were received from different informants.   The trial judge apparently found this hard to believe.   He noted that three different officers on three different dates received phone calls.   He pondered aloud the plausibility of Deputy Alaniz' statement that his call was from a person other than the person who called the other officers.  “I don't know how he knows that,” stated the trial judge.   Neither do we.

Higgason v. Superior Court, supra, 170 Cal.App.3d 929, 216 Cal.Rptr. 817, involved similar facts.   Police officers had received information from anonymous informants regarding criminal activity.   The appellate court found that three anonymous tips corroborated by police observation of innocent activity did not add up to probable cause.  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 929, 216 Cal.Rptr. 817.)  Higgason argued that anonymous informants were inherently unreliable, and that the police investigation had not corroborated any facts in the tips to which any degree of suspicion attached nor any predictions of future activity.  (Id., at pp. 938–940, 216 Cal.Rptr. 817.)   Rather, the police corroboration merely confirmed that the suspect had the same residence and car mentioned in two of the three tips.  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 940, 216 Cal.Rptr. 817.)

 The affidavit here, like the affidavit in Higgason, “․ is fatally flawed when judged by the standards enunciated in Gates.   There are two major deficiencies—all the incriminating evidence emanated from anonymous sources and the police investigation revealed only ‘easily obtained facts and conditions existing at the time of the tip.’  [¶] As Gates demonstrates, anonymous information may ultimately prove reliable, but three anonymous telephone calls, without more, cannot serve to corroborate one another.   As the California Supreme Court has noted, quoting Ovalle v. Superior Court (1962) 202 Cal.App.2d 760, 763 [21 Cal.Rptr. 385], ‘ “[t]he quantification of the information does not necessarily improve its quality;  the information does not rise above its doubtful source because there is more of it.” ’  (People v. Fein (1971) 4 Cal.3d 747, 753 [94 Cal.Rptr. 607, 484 P.2d 583].)”  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 938, 216 Cal.Rptr. 817.)

Although the Fein court acknowledged at page 753, 94 Cal.Rptr. 607, 484 P.2d 583 that “․ there may be circumstances where corroborative information from separate, unrelated sources will thereby establish its credibility, ․” that does not mean that police officers need only corroborate easily obtained facts.   In Gates, for example, the officers obtained not only easily obtained facts, but specific details of future conduct that related to criminal activity.

This case is also different from Massachusetts v. Upton (1984) 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721.   In Upton, the United States Supreme Court upheld a warrant based on information received from an “unidentified” informant.   The informant claimed to have seen stolen goods in a motor home.   The informant's description of the goods indicated they were the same items taken in recent burglaries.   The informant also knew of a recent raid conducted by police on a hotel room where credit cards were found belonging to two persons whose homes had been recently burglarized.   When the informant called police to give them the information, the police officer stated he knew who she was and in fact had met her on one occasion.   She admitted she was the person the officer named and that she was the ex-girlfriend of the defendant and wanted to “burn him.”   The officers in Upton had sufficient information about the informant, and her description of the stolen goods “tallied with the items taken in recent burglaries.”  (Id., at p. 733, 104 S.Ct. at p. 2088.)   All these factors pointed to “ ‘a fair probability that contraband or evidence of a crime’ would be found in Upton's motor home.  [Citation.]”  (Ibid.)

 An abundance of detail concerning pedestrian facts such as where a person lives, what car he drives, what side of the head he parts his hair on, or what cologne he wears tells us nothing.   As the Higgason court pointed out, citing People v. Kershaw (1983) 147 Cal.App.3d 750, 756–757, 195 Cal.Rptr. 311, affidavits that endorse the procurement of search warrants based entirely upon anonymous sources should not command our respect.   Independent police work here did not corroborate any suspicious activity or confirm future actions not easily predicted.   As in Higgason, here “[t]he totality of the circumstances presented by this affidavit do not show ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’   (Illinois v. Gates, supra, 462 U.S. 213, 238 [103 S.Ct. 2317, 2332, 76 L.Ed.2d 527].)  ‘[T]he magistrate had [no] “substantial basis for ․ conclude [ing]” that probable cause existed.  [Citation.]’  [Citation.]”  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 941, 216 Cal.Rptr. 817, fn. omitted.)

Substantial evidence supports the trial court's observation that “[t]here is no corroboration of anything, zero, that we have anything other than an informant, an unidentified dark voice in the night.”   Probable cause is made of greater stuff.

IV.

The absence of probable cause does not end our inquiry.   We must now determine whether the searching officers acted reasonably and in good faith.   (United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.)

When an officer conducts a search under the authority of a warrant issued by a neutral and detached magistrate, this normally establishes that the law enforcement officer has acted in good faith in conducting the search.   (United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3420, 82 L.Ed.2d at p. 698;  People v. MacAvoy (1984) 162 Cal.App.3d 746, 763, 209 Cal.Rptr. 34.)   There is a presumption that officers are conducting a search with good faith belief in its validity when the search is conducted pursuant to a warrant.  (People v. MacAvoy, supra, 162 Cal.App.3d at p. 763, 209 Cal.Rptr. 34.)   The officer's reliance on the magistrate's probable cause determination must be objectively reasonable.   In some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.  (United States v. Leon, supra, 468 U.S. at pp. 922–923, 104 S.Ct. at p. 3420, 82 L.Ed.2d at p. 698.)   The exclusionary rule only serves its policy goal of deterring police misconduct if applied to objectively unreasonable law enforcement activity.  (See Id., at pp. 919–920, 104 S.Ct. at pp. 3418–3419.)

An inquiry into objective reasonableness is confined to the question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.  (Id., at pp. 922–923, fn. 23, 104 S.Ct. at p. 3420, fn. 23.)   A good faith belief may not be objectively reasonable and suppression therefore appropriate if (1) the magistrate was misled by information in the affidavit that the affiant knew or should have known was false, (2) the magistrate wholly abandoned his judicial role in the manner condemned by Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920, (3) the warrant was facially deficient in failing to particularize the place to be searched or things to be seized, or (4) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.  (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3420, 82 L.Ed.2d at p. 699.)   There is no evidence nor are there arguments that facts necessary for categories 1–3 to apply are present here.

 The superior court applied the fourth category set forth in Leon when it granted Rivera's motion under section 1538.5.   The trial court found the affidavit was so lacking in probable cause indicia as to render reliance upon it entirely unreasonable.   The trial court's assessment was correct.   Good faith and probable cause are inextricably related.   As probable cause recedes into insignificance, so does the objective reasonableness of good faith become so tenuous that it disintegrates in the wind.

 The officers may have been acting in subjective good faith here, but their conduct was not “objectively reasonable” under the Leon guidelines.   The Leon case was not meant to reward inexperience, ignorance, or stupidity.   No reasonably well-trained officer could rely upon this warrant.   Leon requires that the application of the good faith exception be measured against the standard of objective reasonableness.

This standard requires that officers “have a reasonable knowledge of what the law prohibits.”  (Id., at p. 919, fn. 20, 104 S.Ct. at p. 3418, fn. 20, see Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 944, 216 Cal.Rptr. 817.)

As Justice Crosby points out in his concurring opinion in Higgason v. Superior Court, supra, 170 Cal.App.3d at page 952, 216 Cal.Rptr. 817, “[a]ny rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant.”   This observation is no less true under Gates than it was under Spinelli and Aguilar.

Justice Wallin, in his concurring opinion in Higgason v. Superior Court, supra, 170 Cal.App.3d at pages 952–953, 216 Cal.Rptr. 817, stated “[n]ot every Fourth Amendment sin can be forgiven by wrapping it in a good faith package.   Every citizen is entitled to be secure from the possibility that angry neighbors, misguided practical jokers, ex-spouses, heartbroken ex-lovers or other personal enemies will provide anonymous information leading to police intrusion into their homes and personal effects.   Were we to permit introduction of this evidence, a whole new field would be opened for dealing with one's personal ‘enemies list.’   As even an inexperienced police officer knows, courts have always required corroboration of anonymous information because of its inherent unreliability.   Nothing in the Leon decision can be read to suggest a different result or excuse a lack of corroboration merely because an overworked or inattentive magistrate sanctions the entry.”

The order of dismissal is affirmed.

I respectfully dissent.

Two experienced and highly respected trial judges when ruling on respondent's 1538.5 motions concluded that, based on the officer's affidavit, probable cause existed for the issuance of the search warrant in question.

Under such circumstances I do not believe that even an experienced police officer should have realized the affidavit was so lacking in probable cause indicia as to render reliance upon it entirely unreasonable.  (United States v. Leon (1984) 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677, 699.)   One commentator has suggested that the degree of police deference to the magistrate in good faith cases may exceed significantly the “great deference” owed the magistrate by reviewing courts under current probable cause standards.  (See LaFave, Search and Seizure, § 1.2 (West, 1978, Supp.1986;  see Illinois v. Gates (1983) 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527.)

The United States Supreme Court has not, under its “totality of circumstances” approach in probable cause cases, categorically held when anonymous tips supported by observation of purely innocent activity can constitute probable cause.  (See Illinois v. Gates, supra, 462 U.S. at p. 243, 103 S.Ct. at p. 2334.)   One California Court of Appeal recently held:  “While observation of innocent activities can provide sufficient corroboration of an unknown or untested informant's tip to establish probable cause (Illinois v. Gates, supra, 462 U.S. at p. 243 [103 S.Ct. at p. 2334, 76 L.Ed.2d at p. 551];  United States v. Little (8th Cir.1984) 735 F.2d 1049, 1055;  ․), the ‘veracity’ and ‘basis of knowledge’ of the informant must be assessed together with all the circumstances to determine whether ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’   [Citations.]”  (People v. Lissauer (1985) 169 Cal.App.3d 413, 422, 215 Cal.Rptr. 335.

In Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 216 Cal.Rptr. 817, a Court of Appeal decision in which the three justices wrote separate concurring decisions, the court held that probable cause was lacking when anonymous information was only corroborated as to nonsuspicious activity.   Two of the justices apparently held that the good faith exception did not apply because even inexperienced police officers would have concluded there was no satisfactory corroboration of the anonymous information.   However, both the Lissauer and Higgason cases involved determinations whether probable cause itself was present rather than an analysis of the good faith issue.

The “lead” opinion in Higgason did not reach the good faith question, holding that it could not be raised for the first time on appeal.   The two concurring justices, although discussing the issue, saw no distinction between a determination as to good faith and one as to probable cause.   Neither of the concurring opinions sets out specific standards for assessing when police reliance on a subsequently invalidated warrant is reasonable (Higgason v. Superior Court, supra, 170 Cal.App.3d at pp. 941–953, 216 Cal.Rptr. 817).

When considering a good faith issue, a court should first ask whether the application for the warrant was supported by no more than a “bare-bones” affidavit.  (See United States v. Leon, supra, 468 U.S. at p. 926, 104 S.Ct. at p. 3422, 82 L.Ed.2d at p. 701.)   This criterion addresses the concern of the Leon court that an officer should not be able to obtain a warrant based on a scanty affidavit and then rely on colleagues ignorant of the circumstances under which the warrant was obtained to conduct the search.  (Id., at p. 923, fn. 24, 104 S.Ct. at p. 3420, fn. 24, 82 L.Ed.2d at p. 698, fn. 24.)

Second, a court should ask whether the affidavit provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.  (See Id. at p. 926, 104 S.Ct. at p. 3422, 82 L.Ed.2d at p. 701.)   The exclusionary rule's policy goal of deterring unlawful police conduct would hardly be served if under at least one reasonable interpretation of the affidavit, a search would be lawful.  (See Id. at p. 918, 104 S.Ct. at p. 3418, 82 L.Ed.2d at p. 696.)

Finally, in applying the above criteria, a court should consider that the degree of police deference to the magistrate in good faith cases may exceed significantly the “great deference” owed the magistrate by reviewing courts under current probable cause standards.  (See Illinois v. Gates, supra, 462 U.S. at p. 236, 103 S.Ct. at p. 2331.)   This significant deference to the magistrate is a necessary acknowledgment that a warrant is a judicial mandate to an officer to conduct a search, and that the officer has a sworn duty to carry out its provisions.  (United States v. Leon, supra, 468 U.S. at p. 920, fn. 21, 104 S.Ct. at p. 3419, fn. 21, 82 L.Ed.2d at p. 697, fn. 21;  Pen.Code, § 1529.)   Further, greater deference in good faith than in probable cause situations responds to the Leon court's distinction between these two separate determinations.  (Id., at p. 906, 104 S.Ct. at p. 3411, 82 L.Ed.2d at p. 688.)

In Malley v. Briggs (1986) 475 U.S. 335, ––––, fn. 9, 106 S.Ct. 1092, 1099, fn. 9, 89 L.Ed.2d 271, 281, fn. 9 the United States Supreme Court in applying Leon standards indicated that objectively unreasonable police reliance on a warrant would only be likely to occur when the magistrate acted with “gross incompetence or in neglect of duty.”

Applying these criteria I would hold that the officers' reliance on the warrant was objectively reasonable here.   The affidavit was not “so lacking” in probable cause indicia as to render official belief in its existence “entirely unreasonable.”

First, the affidavit contained a range of specific details from three different informants as to respondent's alleged criminal activities.   The three detailed tips and the corroboration of two of them clearly made the affidavit more than “bare-bones.”   Although the officers who obtained the warrant also served it, there was sufficient information in the affidavit to determine that he acted reasonably in obtaining it.

Second, the affidavit provided sufficient evidence upon which thoughtful and competent judges could and in fact did disagree as to the existence of probable cause.   The officers could reasonably have believed under the Gates “totality of circumstances” approach that the tips contained enough detail in themselves to compensate for the lack of significant corroborated facts.  (See also Spinelli v. United States (1969) 393 U.S. 410, 415–416, 89 S.Ct. 584, 588–589, 21 L.Ed.2d 637.)

The trial court was mistaken in applying Higgason not merely to support its finding that probable cause was lacking, but to support its further conclusion that it was “so lacking” that reliance on the warrant was entirely unreasonable.

There is no indication that the magistrate here acted with gross incompetence or in neglect of duty.  (Malley v. Briggs, supra, 475 U.S. at p. ––––, fn. 9, 106 S.Ct. at p. 1099, fn. 9, 89 L.Ed.2d at p. 281, fn. 9.)

Although I believe the superior court was correct in eventually finding the warrant unsupported by probable cause, I would hold it erred as a matter of law in granting the motion to suppress.

FOOTNOTES

FN1. All further references are to the California Penal Code unless otherwise stated..  FN1. All further references are to the California Penal Code unless otherwise stated.

GILBERT, Associate Justice.

STONE, P.J., concurs.