PEOPLE v. BROWN (1990)

1. Introduction

Codefendants Mike Brown and Karen Harden appeal from the judgments following their convictions by guilty pleas, seeking review of the denial of their joint motion to suppress evidence.  (Pen.Code, § 1538.5, subd. (m).)  Brown was convicted of possession of marijuana for sale (Health and Saf.Code, § 11359) and possession of stolen property (Pen.Code, § 496) and placed on three years probation, a condition of which was serving nine months in jail.   Harden was convicted of possessing more than one ounce of marijuana (Health & Saf.Code, § 11357, subd. (c)) and placed on one year's probation, a condition of which was serving forty-five days in jail.

Defendants sought to suppress evidence seized in two searches pursuant to search warrants.   In defendants' residence was located one pound six ounces of marijuana, plastic baggies, and three sets of scales, including a triple-beam scale.   In defendants' storage locker was located about ten pounds of marijuana, a stolen camera, and a stolen sound board.   Defendants challenge the affidavits supporting the search warrants and the justification for seizing items not mentioned in the second search warrant.   For the reasons stated below, we will affirm the judgment.   The facts are stated where relevant.

2. Affidavits supporting search warrants

On February 17, 1988, Santa Clara County Deputy Sheriff Mike Flood affirmed the following in seeking a search warrant for defendants' residence and vehicles.   He had both classroom education and practical experience with drug sellers in general and cocaine sellers in particular.   He had the following information from a confidential informant (sometimes “X”) within the past ten days.   X believed defendant Brown was selling cocaine from his residence.   X had spoken with Brown and seen him at the residence.   X accompanied an acquaintance to the residence, saw the acquaintance approach the door, heard a knock on the door, and heard Brown invite the acquaintance in.   Two minutes later, the acquaintance rejoined X and displayed what looked and felt like cocaine when X ingested it.   X sounded knowledgeable about cocaine and claimed to have used it.

Flood believed the informant was reliable “because on at least two occasions within the past two months, X has provided your affiant with detailed information regarding participants in criminal activity.   In each instance, police investigation confirmed all that X told your affiant as true.   As a result of such information, further investigation is pending, and arrest warrants for the participants named by X are expected to issue.   Your affiant has never received false or misleading information from X.”   The informant had prior felony convictions as well as currently pending felony matters.   Flood had promised the informant to advise the authorities about this cooperation and assistance.

Flood had seen Brown at the residence.   Two cars registered to Brown and one to defendant Harden were at the residence.

On February 19, 1988, Flood affirmed the following in seeking a search warrant for defendants' self-storage locker.   In addition to the information summarized above, on February 19, he executed a search warrant of defendants' residence and located:  two pounds of marijuana, a quantity ordinarily possessed for sale;  a utility bill to both defendants;  $1,500 cash;  three scales, one with a white powdery substance appearing to be cocaine;  plastic baggies, including one with a white powder that tested positive for cocaine;  and in Brown's wallet, a card identifying the self-storage locker.   Another officer confirmed that the locker was rented to defendants.   In Flood's experience, drug dealers often store drugs in storage lockers.

3. Was probable cause so absent from the affidavits supporting search warrants as to invalidate the resulting searches?

 Evidence seized pursuant to a search warrant should be suppressed only where the officers executing it could not in good faith have reasonably believed their search was authorized by a valid warrant.  (Massachusetts v. Sheppard (1984) 468 U.S. 981, 988, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737;  People v. Alvarez (1989) 209 Cal.App.3d 660, 664–665, 257 Cal.Rptr. 445.)   Suppression is appropriate where (1) the warrant was obviously facially deficient, (2) the supporting affidavit so lacked indicia of probable cause that official belief in its existence was entirely unreasonable, (3) the affidavit misled the issuing magistrate by information stated by the affiant with knowledge of its falsity or with reckless disregard for its truth, or (4) the magistrate abandoned the role of impartial arbiter of probable cause.  (See United States v. Leon (1984) 468 U.S. 897, 922–923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677;  People v. Wilson (1986) 182 Cal.App.3d 742, 749–750, 227 Cal.Rptr. 528.)

 Defendants challenge the existence of probable cause to issue either search warrant.  Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, teaches:  “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the 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.   And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ․ conclud[ing]’ that probable cause existed.”  (Id. at pp. 238–239, 103 S.Ct. at pp. 2332.)  “Our decisions applying the totality-of-the-circumstances analysis ․ have consistently recognized the value of corroboration of details of an informant's tip by independent police work․  [A]n affidavit relying on hearsay ‘is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.’ ”  (Id. at p. 241, 103 S.Ct. at p. 2334.)

For an untested, anonymous informant, “[i]t is enough, for purposes of assessing probable-cause [sic ], 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.’ ”  (Id. at pp. 244–245, 103 S.Ct. at pp. 2335.)  “In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”  (Id. at p. 243, fn. 13, 103 S.Ct. at p. 2335, fn. 13.)   In Gates, probable cause was found where the police confirmed predictions in an anonymous letter that in a few days a certain man would fly from Chicago to Florida, meet his wife, and would drive back to Chicago in their car.  (Id. at pp. 225–226, 243–244, 103 S.Ct. at pp. 2325, 2335.)   Confirming these details made it likely the letter writer was also right about the car containing drugs and the couple being drug dealers.   (Id. at pp. 244–246, 103 S.Ct. at pp. 2335–2336.)

In Massachusetts v. Upton (1984) 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721, probable cause was found where the police confirmed there was a motor home on certain property.   An untested informant had told an officer that the motor home contained stolen property.   She had seen it because she was the homeowner's former girlfriend.   She called the police to cause him trouble.   The officer had previously been introduced to the informant as the homeowner's girlfriend.  (Id. at p. 729, 104 S.Ct. at p. 2086.)  “The informant's story and the surrounding facts possessed an internal coherence that gave weight to the whole.”  (Id. at p. 734, 104 S.Ct. at p. 2088.)

California cases after Gates, including those cited below, provide no universal test to qualify an informant as reliable.   They illustrate the following observation in Gates, supra, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527:  “As we said in Adams v. Williams [1972] 407 U.S. 143, 147 [92 S.Ct. 1921, 1923, 32 L.Ed.2d 612] ․:  ‘Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability.’ ”  (Id. 462 U.S. at p. 232, 103 S.Ct. at p. 2329.)

Precedent does teach that an informant's veracity can be evidenced in a variety of ways, including (1) police corroboration of details of the pending investigation (People v. Rochen (1988) 203 Cal.App.3d 684, 689, 250 Cal.Rptr. 73);  (2) a “track record” of providing information in other cases that was confirmed by police investigation (People v. Mayer (1987) 188 Cal.App.3d 1101, 1117, 233 Cal.Rptr. 832);  by resulting arrests (ibid.;  People v. Hansborough (1988) 199 Cal.App.3d 579, 584, 245 Cal.Rptr. 115), or by resulting convictions (cf. People v. Lopez (1986) 181 Cal.App.3d 842, 844–846, 226 Cal.Rptr. 714);  (3) factual details of sufficient verisimilitude (Rochen, supra, 203 Cal.App.3d 684, 688, 250 Cal.Rptr. 73;  People v. Terrones (1989) 212 Cal.App.3d 139, 148–149, 260 Cal.Rptr. 355;  cf. Hansborough, supra, 199 Cal.App.3d 579, 584, 245 Cal.Rptr. 115);  (4) statements against penal interest though the informant has been promised leniency (Terrones, supra, 212 Cal.App.3d 139, 149, 260 Cal.Rptr. 355);  (5) corroboration by other informants (ibid.).   On the other hand, corroboration of innocent and easily obtained details may not suffice.  (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 937–939, 216 Cal.Rptr. 817.) ¹

Here, the only information implicating defendants in drug sales was from the confidential informant, who claimed to have witnessed defendant Brown sell cocaine once.   The police independently confirmed only that the informant recognized Brown and that Brown lived where the informant said he did.   These easily obtained details cast no suspicion on defendants.   Their confirmation by itself lends no credence to the rest of the informant's story.   Nor did the affidavits contain sufficient details about the cocaine purchase allegedly witnessed by the informant to be self-verifying.

The informant's story gains some credibility from the statements against penal interest of prior involvement with cocaine.   Otherwise, Officer Flood's affidavits attempted to bolster the informant's credibility by stating his conclusions that the informant seemed knowledgeable about cocaine and had provided accurate information about criminal activity twice before, which had led to further investigation and anticipated arrest warrants.

Cases vary in their tolerance for an affiant's recital of conclusions about an informant's reliability.   The trial court relied on one of the most tolerant, Hansborough, supra, 199 Cal.App.3d 579, 245 Cal.Rptr. 115, in denying defendant's motion to suppress.   There the affidavit claimed the informant was reliable because (1) on two prior occasions, information from the informant had resulted in seizures of cocaine under search warrants and arrests, and (2) the informant admitted using cocaine and appeared knowledgeable about it.  (Id. at p. 582, 245 Cal.Rptr. 115.)   The court concluded this was factually sufficient, reasoning:  “It would have been the better practice for the affiant to have stated the details surrounding the informant's reliability in a more factual fashion.   However, this court is required to interpret the affidavit in a common sense, rather than a hypertechnical manner.  (Illinois v. Gates, supra, 462 U.S. at pp. 237, fn. 10, 239 [103 S.Ct. at pp. 2331, fn. 10, 2332]․)  It is also required to follow the dictate that ‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded warrants.’   (Id. at p. 237, fn. 10 [103 S.Ct. at p. 2331, fn. 10]․)”  (Id. 199 Cal.App.3d at p. 584, 245 Cal.Rptr. 115;  cf. Mayer, supra, 188 Cal.App.3d 1101, 1116–1117, 233 Cal.Rptr. 832.)

We do not understand Gates, supra, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, to invite vague, conclusory affidavits.   Instead the court commented:  “Sufficient information must be presented to the magistrate to allow that official to determine probable cause;  his action cannot be a mere ratification of the bare conclusions of others.   In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.”  (Id. at p. 239, 103 S.Ct. at 2332.)   With this admonition in mind, Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 245 Cal.Rptr. 617, found an affidavit too conclusory about an informant's reliability when it did not explain how prior information had been corroborated.  (Id. at pp. 1464–1465, 245 Cal.Rptr. 617.)

We similarly regard the affidavits here as requiring the magistrate to adopt Officer's Flood's “bare conclusions” instead of providing a sufficient independent basis to credit the informant's story of defendants' involvement in drug sales.   The affidavits do not explain what sort of information the informant previously provided nor how it was confirmed.   It had resulted only in further investigation, not in any arrests or arrest warrants.   The only details confirmed about defendants were innocent and easily obtained.   Thus, the affidavits did not establish a fair probability of locating contraband in defendants' residence or storage locker.

 Nevertheless, the evidence seized pursuant to the search warrants is not subject to suppression except in the four situations explained above.   Defendants assert that this is a case where the affidavits so lacked indicia of probable cause that official reliance was entirely unreasonable.   The prosecution asserted the officer's good faith below but the trial court did not reach the issue since it found there was probable cause.   On appeal the issue presents a question of law.

While the affidavits were deficient, we do not consider them so obviously deficient as to justify suppression of evidence.   We do not know if the officer had previously obtained search warrants based on similar affidavits (compare Rodriguez, supra, 199 Cal.App.3d 1453, 1466, 245 Cal.Rptr. 617), but we do recognize that the affidavits might be regarded as sufficient by other appellate courts.

Except for arguable laxity in corroborating more of the informant's story, there is no evidence that the officer acted in bad faith in applying for or executing the search warrants.   At oral argument, defendants asserted the police were as unreasonable in relying on deficient affidavits as they were in People v. Johnson (1990) 220 Cal.App.3d 742, 270 Cal.Rptr. 70, which reversed a trial court determination of good faith belief in a search warrant's validity.  Johnson, supra, 749, 270 Cal.Rptr. 70, quoted, “ ‘It is only where ․ neither the veracity nor basis of knowledge of the informant is directly established, the information is not so detailed as to be self-verifying and there is no logistical or other reason verification from other sources cannot be achieved, that the failure to corroborate may be indicative that it was objectively unreasonable for the officer to believe in the existence of probable cause.’  (People v. Maestas [1988] 204 Cal.App.3d [1208] at pp. 1220–1221 [252 Cal.Rptr. 739], fn. omitted.)”   Maestas indicated that bad faith could be evidenced by police misrepresentation, reliance on stale evidence, and a lack of corroboration of an informant's tip.  (Id. at pp. 1219–1221, 252 Cal.Rptr. 739.)  Johnson found bad faith almost entirely due to insufficient corroboration of an anonymous tip.  (220 Cal.App.3d at pp. 750–751, 270 Cal.Rptr. 70.)

Johnson is potentially distinguishable by comparing the extent of corroboration efforts.   However, we disagree with its analytical approach.   In equating mere laxity in seeking corroboration with bad faith reliance on the resulting warrant, Johnson overlooks that a magistrate's determination was interposed between the investigation and the warrant.   As stated in Alvarez, supra, 209 Cal.App.3d 660, 667–668, 257 Cal.Rptr. 445:  “Alvarez's arguments ignore the Supreme Court's admonition in United States v. Leon:  ‘It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause, and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.   In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient.  “[O]nce the warrant issues, there is literally nothing more the police man can do in seeking to comply with the law.”  [Citation.]   Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.’  (468 U.S. 897, 921 [104 S.Ct. 3405, 3419, 82 L.Ed.2d 677] fn. omitted․)”

Johnson does not even discuss the significance of the magistrate's probable cause determination.  Maestas, at least, concluded that it has no significance in determining whether the officer's belief in the existence of probable cause was entirely unreasonable.  (204 Cal.App.3d 1208, 1214–1215, 252 Cal.Rptr. 739.)  Maestas reached this conclusion by disregarding the above-quoted language of Leon in light of Malley v. Briggs (1986) 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271.   The issue in Malley was not suppression of evidence, but the degree of a police officer's immunity from civil damages for causing a warranted arrest without probable cause.  Malley did apply the standard of objective reasonableness from a suppression hearing and held that the qualified immunity was inapplicable “where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, Leon, supra, [468 U.S.] at 923 [104 S.Ct. at 3420]․”  (Id. 475 U.S. at pp. 344–345, 106 S.Ct. at pp. 1097–1098.)  “In Leon, we stated that ‘our 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.’  468 US, at 922, n. 23 [104 S.Ct. at 3420, n. 23].”  (Id. 475 U.S. at p. 345, 106 S.Ct. at p. 1098.)   Unlike Maestas, we do not understand Malley as eliminating consideration of the magistrate's determination in evaluating an officer's good faith.   To the extent Malley is relevant to evidence suppression, it merely indicates the magistrate's determination is not controlling.

 In Johnson's topsy-turvy world, the police are obliged to review the magistrates' probable cause determinations and to ignore warrants they question.   In our view, evidence resulting from a warranted search should not be suppressed merely because the police might have done more to corroborate an informant's tip.   If there can be reasonable disagreement about the sufficiency of an affidavit or the police investigation it describes and the reviewing magistrate finds probable cause to issue a warrant, it cannot be concluded that official belief in the existence of probable cause is entirely unreasonable.   Mere laxity in investigating a tip, even coupled with conclusoriness in an affidavit, does not prove police bad faith.   We require more before concluding that it was entirely unreasonable to believe there was probable cause to search defendants' residence and storage locker.   On these facts, it was objectively reasonable for the officer to rely on the search warrants.   Defendants have identified no basis for suppressing the evidence yielded by executing the search warrants.

4. Did the second search exceed the scope of warrant?

 Defendants separately challenge the seizure of a camera and a sound board during the search of their storage locker.

When Officer Flood was searching their locker pursuant to a search warrant, he found a sound board on top of everything.   He recognized it as the type of sound board he had heard was stolen from a local high school.   The sound board was not a common one.   This discovery led him to suspect that other property in the locker was stolen.   He confirmed that a camera was reported stolen by running a radio check from the locker on the camera's serial number.   Neither item was mentioned in the search warrant.

As we explained in People v. Miller (1987) 196 Cal.App.3d 846, 852, 242 Cal.Rptr. 179:  “Generally, in executing a warrant, only those objects described in the warrant may be seized.  (Skelton v. Superior Court (1969) 1 Cal.3d 144, 155 [81 Cal.Rptr. 613, 460 P.2d 485]․)  However, ‘[w]hen officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers' efforts.’  (Id. at p. 157 [81 Cal.Rptr. 613, 460 P.2d 485.] )”  (Cf. People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73, 157 Cal.Rptr. 716, 598 P.2d 877.)   A search or seizure of an item in plain view must be based on probable cause to believe it is evidence of a crime, such as stolen property.  (Arizona v. Hicks (1987) 480 U.S. 321, 326–329, 107 S.Ct. 1149, 1153–1154, 94 L.Ed.2d 347;  People v. Rios (1988) 205 Cal.App.3d 833, 839–840, 252 Cal.Rptr. 653.)

Defendants rely on People v. Murray (1978) 77 Cal.App.3d 305, 143 Cal.Rptr. 502, which required suppression of two television sets in plain view during execution of a search warrant not identifying them.   They were found in a room containing 67 televisions, 20 of which had serial numbers removed.   The court concluded they “were not inherently identifiable as contraband nor were they identified at the scene as having obliterated serial numbers or other distinctive markings to set them apart from any other ․ sets of the same make and model.”  (Id. at p. 311, 143 Cal.Rptr. 502.)   At most the officers had “a generalized suspicion” (ibid.) that these two televisions were stolen.²

Here the police had the information missing in Murray.   In plain view was a sound board of the particular type reported as stolen.   For an unusual item to match the description of property described in a police report as stolen furnishes probable cause to believe it is the very one that was stolen.  (Cf. Rios, supra, 205 Cal.App.3d 833, 841, 252 Cal.Rptr. 653.)   While “[a] verification of the stolen status of property by a comparison of serial numbers is not a requirement for probable cause in every case,” (id. at p. 842, 252 Cal.Rptr. 653), the police actually did so for the stolen camera.   The police had probable cause to believe both items were stolen property.³

5. Disposition

The judgments are affirmed.

FOOTNOTES

1.   Defendants rely on People v. Lissauer (1985) 169 Cal.App.3d 413, 215 Cal.Rptr. 335.   The search there was not based on a warrant, although it was based on a tip by a confidential informant.

2.   We criticized Murray on another ground in Miller, supra, 196 Cal.App.3d at page 851, 242 Cal.Rptr. 179.

3.   There is no evidence that the camera was searched or seized before its stolen status was verified.  (Compare Hicks, supra, 480 U.S. at pp. 324–325, 107 S.Ct. at pp. 1152.)

CAPACCIOLI, Acting Presiding Justice.

PREMO and ELIA, JJ., concur.