THE PEOPLE v. DEREK MARTIN MERCADO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The Los Angeles County District Attorney filed an information charging appellant Derek Martin Mercado with one count of possession of a controlled substance while armed with a firearm, in violation of Health and Safety Code section 11370.1, subdivision (a), (Count 1);  possession of a controlled substance for sale, in violation of Health and Safety Code section 11378, (Count 2);  possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a), (Count 3);  and three counts of receiving stolen property, in violation of Penal Code section 496, subdivision (a), (Counts 4 through 6).   Appellant filed a motion under Penal Code section 1538.5 to quash the search warrant that led to seizure of the evidence against him.   Appellant filed another motion under Penal Code section 1538.5 to traverse the warrant.   The trial court conducted a hearing on both motions and denied them.

Appellant pleaded nolo contendere to all of the charged offenses in the information.   The trial court sentenced appellant on Count 1 to the upper term of four years in prison, then suspended that sentence and placed appellant on formal probation for three years, on terms which included serving 180 days in County Jail. The trial court also sentenced appellant to eight months in state prison, consecutive to Count 1, on each of Counts 2 through 6, for a total prison term of seven years and four months.   The court also suspended the sentences on Counts 2 through 6 and placed appellant on three years of formal probation for each of those counts on identical terms that did not include any jail time.   Appellant filed a timely notice of appeal from the judgment.   We affirm.

FACTUAL AND PROCEDURAL HISTORY

I. FACTUAL BACKGROUND

On February 12, 2009, Anaheim police arrested Donald Geary and his wife based on information they had burglarized a local resident's car and Geary had an outstanding arrest warrant for receiving stolen property.   Geary's wife consented to a search of their van, which revealed stolen credit cards and identification cards.   Geary at first denied involvement in receiving the stolen property found in the van and further denied that he had been breaking into cars in the area, including the car burglarized on January 31.   Five days after his arrest, however, Geary contacted one of the investigating officers, Detective Joachimstaler, to talk to him.   Joachimstaler told Geary he could not speak with him about the offenses for which he was under arrest, but could talk to him about additional crimes.   Geary agreed to talk about other burglaries he had committed in the area.

Geary admitted that he supported his $1,200 to $1,300 weekly drug habit by entering unlocked cars and stealing anything of value inside.   Geary said that he had committed “hundreds” of burglaries during the previous 18 months and that he would regularly sell stolen items to a man named Derek (later identified as Mercado).   Geary claimed that he “got hooked up with” Mercado through Geary's sister, who was friends with Mercado.   Geary also said that Mercado would sometimes request that he steal specific items.

Geary directed officers to a residence at 2477 E. Travers Avenue, in the City of Commerce and identified both the residence and a 1993 Nissan parked there as Mercado's.   The officers verified that the Nissan was registered to Mercado at the address given to them by Geary.   They also showed Geary a DMV photograph, which Geary stated was Mercado.   The officers verified that Mercado was 43 years old at that time.

Detectives drove Geary to numerous locations where Geary said he had committed car burglaries.   Police reports could not be located to verify that most of those claimed burglaries had actually occurred.   The affidavit did not recite that police sought to corroborate any other information about Mercado's alleged criminal activities.   However, the police corroborated appellant's description, location of his residence, and ownership of his vehicle.   The police sought and obtained the search warrant authorizing a search of Mercado's person, residence, and automobile based on the information recited in the affidavit.   Upon executing the warrant to search appellant's residence, substantial amounts of stolen contraband and narcotics were recovered.

II. THE TRIAL COURT'S DETERMINATION

The trial court acknowledged that there was “no corroboration of [appellant's] criminal activity,” but held that there was corroboration of Geary's own statements regarding his own criminal activity to support a finding of probable cause for the issuance of the search warrant.   The court further held that there was sufficient corroboration for the following reasons:  the police corroborated innocent conduct regarding appellant, Geary volunteered statements against his own penal interest, and Geary's statements were very detailed.   The court also found that the “Statement of Probable Cause” was sufficient on its face for the officers to rely in good faith on the warrant in conducting the search.

On appeal, appellant contends that the trial court erred in denying the motion to quash the search warrant because Geary's information was not sufficiently corroborated to provide probable cause for issuance of the warrant.   Additionally, appellant submits that the good faith exception to the warrant requirement is inapplicable because the information contained in the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

DISCUSSION

I. STANDARD OF REVIEW

The basic standard for probable cause to issue a search warrant is “whether, given all the circumstances set forth in the affidavit ․, 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.)   On appeal, the issuance of a search warrant will be upheld if the record shows that the “magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.”  (People v. Kraft (2000) 23 Cal.4th 978, 1040.)   The reviewing court exercises its independent judgment to analyze the totality of the circumstances (People v. Camarella (1991) 54 Cal.3d 592, 600–602;  Illinois v. Gates, supra, 462 U.S. at pp. 238–239), and defers to the magistrate judge's decision that probable cause existed.   (People v. Kraft, supra, 23 Cal.4th at pp. 1040–1041.)   Only the probability of criminal activity is necessary to establish probable cause, rather than proof beyond a reasonable doubt.  (Illinois v. Gates, supra, 462 U.S. at p. 235.)   The appellate court will not overturn the magistrate's determination unless the supporting affidavit fails as a matter of law to support the finding of probable cause.  (People v. Garcia (2003) 111 Cal.App.4th 715, 720.)

II. PROBABLE CAUSE

A. Relevant Law

Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.  (Illinois v. Gates, supra, 462 U.S. at p. 238.)   Prior to Gates, it was necessary for an affidavit to set forth both the reliability of an informant and the basis for the informant's knowledge.  (Id. at pp. 230–237.)   The Gates court expressly rejected the use of these categories as individually necessary elements, stating that the two factors were merely “relevant considerations” in a totality of the circumstances analysis.  (Id. at p. 233.)

When an informant's tip is relied upon in seeking a warrant, the informant's veracity, reliability, and basis of knowledge are still relevant considerations in the totality of the circumstances test.   However, no single factor is determinative because “a deficiency in one [of these elements] 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.”  (Id. at p. 233.)

Indicia of reliability include prior accurate reports by the informant, a lack of ulterior motives in making the report, explicit and detailed description of the alleged wrongdoing, the informant's first-hand observation of the alleged wrongdoing, and corroboration by independent police work.  (Illinois v. Gates, supra, 462 U.S. at pp. 233–234, 241.)   In California, “ ‘[f]or corroboration to be adequate, it must pertain to the alleged criminal activity,’ ” but “ ‘corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant.’ ”  (People v. Gotfried (2003) 107 Cal.App.4th 254, 263–264.)

The purpose of corroboration is to “ ‘establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth.’ ”  (People v. Rochen (1988) 203 Cal.App.3d 684, 689.)  “It is enough, for purposes of assessing probable cause, that ‘[c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale, thus providing ‘a substantial basis for crediting the hearsay.’ ”   (Illinois v. Gates, supra, 462 U.S. at pp. 244–245;  see also People v. Camarella, supra, 54 Cal.3d at p. 601.)

B. Sufficient Corroboration

The trial court's determination that there was sufficient corroboration of Geary's statements to support a finding of probable cause for the search warrant should be affirmed.   The trial court's findings are entitled to deference and are correct under the totality of the circumstances.   Although there was no corroboration of appellant's actual criminal acts, the record shows that there was sufficient corroboration of Geary's statements such that his statements did not constitute a completely fabricated story.

Appellant's argument that there was corroboration of only “pedestrian facts” by an “untested criminal informant” is misguided.   An informant's veracity or trustworthiness may be established through admissions against penal interest.   (People v. Terrones (1989) 212 Cal.App.3d 139, 146–147;  see United States v. Angulo–Lopez (9th Cir.1986) 791 F.2d 1394, 1397 [“Veracity also may be established through admissions against penal interest”].)   In the present case, the trial court found that Geary's statement regarding appellant's criminal activity was corroborated by his own statements against penal interest.   The “Statement of Probable Cause” reflects that Geary admitted to having been involved in six prior thefts for which police reports had been filed.   In fact, several of Geary's statements against penal interest, which were corroborated by incident reports, specifically indicated his criminal involvement with appellant and that Geary sold items he stole to appellant.

Geary's reliability is also well founded because he was not an unknown informant, but rather known to the officers.  (See Adams v. Williams (1972) 407 U.S. 143, 146 [an informant known personally to an officer makes for a stronger case than an anonymous tip].)   In the present case, the officers already had an encounter with Geary because he had been identified as the prime suspect in vehicle burglaries throughout Orange County.   The officers previously interviewed Geary regarding the burglary charges before he discussed with them the details of his criminal transactions with appellant.

In addition, information provided by an untested informant is entitled to greater consideration where the information provides a detailed description based on personal, first-hand knowledge of the alleged criminal activity.   (People v. Kershaw (1983) 147 Cal.App.3d 750, 758–759;  People v. Rochen, supra, 203 Cal.App.3d at p. 688.)   In the present case, not only did Geary identify appellant's home and vehicle, which had been independently corroborated, but he also provided explicit details about having stolen many items from unlocked vehicles which were then sold to appellant to obtain either methamphetamine or money to buy methamphetamine.

It is undisputed that Geary had a criminal record, but even if there is some doubt as to Geary's motives, “his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.”   (Illinois v. Gates, supra, 462 U.S. at p. 234.)   Geary provided first-hand details regarding appellant directing him to various cities to commit burglaries and the items to look for to steal.   Geary stated that he had stolen an “Allisandro” road racing bicycle, which he subsequently sold to appellant.   The police corroborated Geary's admission by identifying that this crime was the basis for police report “BPD DR (# 08–11463).”   Geary also identified other items that he stole and sold to Mercado, which was corroborated by individual police reports.   Moreover, Geary's wife provided the officers with independent corroboration of Geary's criminal activities that involved using methamphetamine and committing vehicle burglaries.

Appellant advocates an unnecessarily high standard to furnish corroboration for purposes of issuing a search warrant.   If a suspect's actual criminal activity had to be directly corroborated outside of an informant's admissions, as appellant argues, there would be an unjustified burden on police officers to essentially prove the suspect's guilt before trial.   This policy rationale is the justification for issuing a search warrant based on probable cause even when there may be only a probability of criminal activity, rather than proof beyond a reasonable doubt.

III. GOOD FAITH

Even if there was insufficient probable cause as matter of law, the good faith exception to the warrant requirement is applicable.   In reviewing the trial court's finding that the good faith exception was satisfied, the reviewing court “must view the record in the light most favorable to [the prosecution], uphold all express and implied factual findings of the trial court that are supported by substantial evidence, then independently apply the proper federal constitutional standards to those facts.”  (Citation omitted.)  (People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1206–1207.)

In United States v. Leon, the Supreme Court carved out the good faith exception, which allows the introduction of evidence obtained under a defective warrant issued by a neutral and detached magistrate if the officers who executed the warrant acted in the reasonable good faith belief that the warrant was valid.  (United States v. Leon (1984) 468 U.S. 897.)   Appellant incorrectly asserts that the warrant is so lacking in indicia of probable cause and, accordingly, there should have been more investigation of appellant's criminal acts to corroborate Geary's statements.   In Camarella, the court held that the relevant inquiry for the good faith exception is not whether further investigation would have been reasonable, but whether a reasonable officer would have known that the affidavit in support of the search warrant, as it existed when presented to the magistrate, was legally insufficient.   (People v. Camarella, supra, 54 Cal.3d at p. 606.)   In the present case, as previously discussed, the officers actually conducted an investigation of Geary's statements, which included corroboration by Geary's wife, police reports, and detailed admissions against penal interest.   Therefore, in view of the fact that a deputy district attorney reviewed and approved the Statement of Probable Cause for the warrant application, the good faith exception applies.

DISPOSITION

The judgment is affirmed.

We concur:

PERLUSS, P. J. ZELON, J.