PEOPLE v. BETANCOURT (1991)

OPINION

Omaira Betancourt appeals her conviction for transportation of cocaine, contending that the court erroneously denied her motion to traverse the search warrant which yielded the evidence against her, and that the warrant was not supported by probable cause.   We affirm.

In the unpublished portion of this opinion, we conclude she did not make a sufficient preliminary showing of material misstatements or omissions in the affidavit to entitle her to a traversal hearing.   In the published portion, we find that although the affidavit did not show probable cause for the search, the officers relied upon the warrant in good faith.

The affidavit upon which the search warrant issued establishes the following.   Sheriff's Investigator Schupbach observed a Jeep Wagoneer driving through the parking lot of a shopping mall.   The driver appeared to look around to see if he was being followed, picked up a man, and drove away.

Schupbach returned to the mall later and saw someone who looked similar to the man who the Jeep driver picked up, but he wasn't sure if it was the same man.   A rental Cadillac drove up and parked nearby.   Schupbach thought the driver of the Cadillac was the same man who had been driving the Jeep.   The man standing in the parking lot was joined by another man.   They got into the Cadillac and the car drove away.   The driver appeared to be talking on a car phone.

A few minutes later, the Cadillac re-entered the parking lot and the three men got out of the car.   The driver entered a restaurant, returned, and talked with the other two.   Schupbach saw one of the men put a white object, possibly an envelope, into his pocket.   The Cadillac driver departed alone and the other two met another man who drove a white rental car.   Schupbach observed the men driving slowly through the parking lot, and looking around to see whether they were being followed.

Schupbach, having once been a narcotics investigator, concluded he had observed drug activity.   He contacted Sergeant Hogin in the narcotics unit to report the events.   About a week later, Investigator Wilkerson and other investigators were assigned to observe a Coco's restaurant parking lot in the same vicinity.

Investigator Murray observed the same Jeep Wagoneer enter the parking lot at Coco's on Lake Forest Drive in Laguna Hills.   A woman (identified at the preliminary hearing as Betancourt) left the Wagoneer, walked to a Thunderbird and drove it directly to the Pepper Tree apartments several miles away.   She parked next to a Hyundai driven by a woman, and entered the passenger side.

The two women drove directly to a Pic ‘N’ Save parking lot located a half mile away on Lincoln Avenue, and both made and received telephone calls from the pay phones.   A half hour later they returned to the Hyundai and drove slowly through the parking lot, appearing to look around to see if they were being followed.   They drove to a nearby K–Mart, where they repeated the same driving maneuver.   At one point they stopped in an area not designated for parking, then drove around some more, and parked again.   They examined something from the Hyundai's trunk which appeared to be papers, drove around the parking lot again and finally parked to use the pay phones.

Next they drove directly to the Cypress post office and parked facing the street, and watched traffic for about five minutes.   The driver used a pay phone.   Both women then went into the post office for a few minutes, returned to the car, and after about five minutes, drove away.   Again they looked around, apparently to see if they were being followed.

The women returned to the Pepper Tree apartment complex.   They appeared startled and nervous when they saw an undercover officer until he said, “Hi,” and walked past them.   They went into Apartment 26, staying for approximately 30 minutes before leaving in the Hyundai and driving to the Thunderbird.   Betancourt got out, opened the Thunderbird's trunk, and looked inside, “as if to see if something had been removed or was still there.”   She quickly closed it.   The two women then drove to the Pic ‘N‘ Save where they made and received calls.

After about 25 minutes, they returned to the apartment complex.   Both of them appeared to be staring at the Thunderbird as they approached the parking lot.   They drove past the complex to Cypress College, circled around the parking lot, looking to see whether they were being followed, and entered a nearby gas station.   After driving around the gas station parking lot, they bought gas and went to a laundromat.   The officers went to the apartment complex;  the women returned there four hours later.

Betancourt went to Apartment 26 while the driver parked the Hyundai.   Soon, Betancourt returned to the Hyundai and, after a one minute stop next to the Thunderbird, drove away.   Wilkerson believed this was counter-surveillance activity.

During the surveillance of the two women, activity was taking place in the Coco's parking lot.   Investigator Changala observed two men in the Jeep Wagoneer.   About 15 minutes later, another investigator saw a man unlock a BMW, enter it for about one and one-half minutes, and leave carrying an envelope.   A few minutes later, a man entered the BMW and drove south on the Interstate 5 Freeway.

The officers followed and saw the driver weave in and out of traffic, leave the freeway and immediately enter the northbound onramp.   He drove through a fast food restaurant line without ordering, through a restaurant parking lot and a motel parking lot, and finally stopped in the parking lot of the Golf'n'Stuff amusement park.   After turning on the hazard lights, the driver went to a pay phone and then entered the Saga Inn Motel.   An investigator checked the BMW doors and found them locked.

Several hours later a man and woman drove into the same parking lot in a Suburban.   A registration check revealed the Suburban's owner had been arrested in 1989 in Seattle for transportation of marijuana.   The driver unlocked the BMW, shut off the flashers, locked the door and returned to the Suburban.   The man and woman drove to the Concord Motel where investigators lost sight of them.   Hours later, an investigator saw the man go into a room at the motel.

Based upon their vast narcotics training and experience, and their observations of the subjects' activities, Wilkerson and Changala concluded the “actions [were] indicative of narcotics activity.”   Based upon his training and experience, Wilkerson opined that drug dealers often keep in their residences and vehicles additional narcotics and adjuncts of the trade, such as sales proceeds, names and addresses, and transaction records.

A search warrant was issued based on this conclusion.   It authorized a search of the Thunderbird, the BMW, the Suburban, the Concord Motel room and the Pepper Tree apartment.   A total of 150 kilos of cocaine were found in the Thunderbird's trunk.   Betancourt filed a motion to traverse and a motion to quash the search warrant.   Both motions were denied by the trial court.

I *

II

Betancourt asserts probable cause to support the warrant was lacking.   We conclude there was not probable cause to believe the suspects presently possessed contraband, but suppression is not merited because the officers had a reasonable good faith belief in the warrant's validity.

In reviewing probable cause in support of a search warrant, “[w]e apply the same standard which governed the trial court:  The magistrate's order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause.  [Citation.]  A reviewing court should give great deference to the magistrate's determination of probable cause.  [Citation.]  The question is simply whether the magistrate had a substantial basis for concluding probable cause to search the described premises existed.   [Citation.]  [¶] Probable cause to search exists when, based on the totality of circumstances described in the affidavit, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’   [Citation.]”  (People v. Fernandez (1989) 212 Cal.App.3d 984, 986, 261 Cal.Rptr. 29.)

“ ‘Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ ”  (People v. Superior Court (Brown ) (1975) 49 Cal.App.3d 160, 165, 122 Cal.Rptr. 459.)  “Deference to the magistrate, however, is not boundless.”  (United States v. Leon (1984) 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677.)

 The facts by which the police attempted to meet the probable cause standard here may be characterized as a series of strange “driving, stopping, phone calling, and looking” behavior, where two suspects appeared nervous and surprised when they encountered an undercover officer, and one of the vehicles used was registered to a person previously arrested for marijuana importation.   The latter two factors are of minor significance.

 Nervousness at the sight of police does not provide a basis for detention, much less an arrest.  (People v. Bower (1979) 24 Cal.3d 638, 647–648, 156 Cal.Rptr. 856, 597 P.2d 115, and cases cited.)   That rule applies with special force when, as here, there is no reason to believe the suspect is specifically aware of police presence.

 Regarding the impact of a prior arrest, the court in Remers v. Superior Court (1970) 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11 noted:  “[A] prior related arrest where there is no conviction must have even less than a ‘slight tendency’ to establish a present violation of the law.”  (Id. at p. 668, 87 Cal.Rptr. 202, 470 P.2d 11;  see also People v. Bower, supra, 24 Cal.3d 638, 645–646, 156 Cal.Rptr. 856, 597 P.2d 115.)   In People v. Buchanan (1972) 26 Cal.App.3d 274, 103 Cal.Rptr. 66, the court held that an arrest may be considered in determining the existence of probable cause, although it would not be sufficient for such a finding.  (Id. at p. 292, 103 Cal.Rptr. 66;  see People v. Martin (1973) 9 Cal.3d 687, 692, fn. 5, 108 Cal.Rptr. 809, 511 P.2d 1161 [Buchanan cited with approval];  see also Loder v. Municipal Court (1976) 17 Cal.3d 859, 866, 132 Cal.Rptr. 464, 553 P.2d 624.)   We discern the following rule from these cases:  In assessing probable cause, a prior arrest provides some weight but has less than a slight tendency to establish a present violation of the law.   Here, that quantum would be further diluted because the police did not know whether the prior arrestee, the owner of the Suburban, was involved in the observed activities.

Thus, the question of probable cause essentially focusses upon the “driving, stopping, phone calling and looking” behavior.   Whether and when observation of such behavior constitutes probable cause is an evolving question in the law.   Historically courts have been hesitant to find that ambiguous behavior provides probable cause, or even cause to detain, even though trained and experienced police officers have claimed the expert ability to discern criminal conduct from seemingly innocent actions.  (See, e.g., People v. Aldridge (1984) 35 Cal.3d 473, 478–480, 198 Cal.Rptr. 538, 674 P.2d 240 [detention];  People v. Bower, supra, 24 Cal.3d at pp. 646–647, 156 Cal.Rptr. 856, 597 P.2d 115 [detention];  Remers v. Superior Court, supra, 2 Cal.3d at p. 666, 87 Cal.Rptr. 202, 470 P.2d 11 [arrest for drug sale];  Cunha v. Superior Court (1970) 2 Cal.3d 352, 358, 85 Cal.Rptr. 160, 466 P.2d 704 [arrest for drug sale].)   Although not specifically articulated in the cases, the courts' concern must be that unbridled acceptance of claims of police “expertise” could sound a death knell for Fourth Amendment protection;  accepting such claims could take from the courts all power to rule on the propriety of a search or seizure, and place it, unrestrained, in the hands of “expert” policemen.

 To guard against this danger, but give due credence to police expertise, the courts have struck a balance.   Although circumstances “as consistent with innocent activity as with criminal activity” do not provide probable cause (Remers v. Superior Court, supra, 2 Cal.3d at p. 664, 87 Cal.Rptr. 202, 470 P.2d 11), “[t]here is probable cause if a ‘ “succession of superficially innocent events ha[s] proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.” ’  [Citations.]”  (People v. Andrino (1989) 210 Cal.App.3d 1395, 1402, 259 Cal.Rptr. 17;  see also U.S. v. Del Vizo (9th Cir.1990) 918 F.2d 821.)   In making this determination, the courts do not apply overly mechanistic rules;  instead they look to the totality of the circumstances, making a common sense appraisal.  (Illinois v. Gates (1983) 462 U.S. 213, 233–235, 238, 103 S.Ct. 2317, 2329–2331, 2332, 76 L.Ed.2d 527.)

This approach allows the courts to consider officers' expert opinions which rationally cast a criminal gloss on ambiguous activity.   Specifically, the courts have given weight to expert opinion that certain conduct is indicative of drug dealing.  (See, e.g., People v. Rodrigues–Fernandez (1991) 235 Cal.App.3d 543, 547, 286 Cal.Rptr. 700;  People v. Carvajal (1988) 202 Cal.App.3d 487, 496, 498, 249 Cal.Rptr. 368;  U.S. v. Del Vizo, supra, 918 F.2d at p. 826.)

However, we have found no case saying that such activity alone is sufficient.   For example, there is often an informant saying the suspects were engaged in drug smuggling, making the officer's observations merely corroboration.  (See, e.g., Illinois v. Gates, supra, 462 U.S. at pp. 233–235, 238, 103 S.Ct. at pp. 2329–2331, 2332;  People v. Carvajal, supra, 202 Cal.App.3d at pp. 496, 498, 249 Cal.Rptr. 368;  People v. Kershaw (1983) 147 Cal.App.3d 750, 759–760, 195 Cal.Rptr. 311;  People v. Childress (1979) 99 Cal.App.3d 36, 41, 160 Cal.Rptr. 47;  Bethune v. Superior Court (1970) 11 Cal.App.3d 249, 255–257, 89 Cal.Rptr. 690;  U.S. v. Ocampo (9th Cir.1991) 937 F.2d 485, 490;  U.S. v. Del Vizo, supra, 918 F.2d 821;  U.S. v. Rodriguez (9th Cir.1989) 869 F.2d 479, 481;  United States v. Fixen (9th Cir 1986) 780 F.2d 1434, 1438;  compare Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 939–940, 216 Cal.Rptr. 817 [corroborative facts were not indicative of criminal activity];  United States v. Freitas (9th Cir.1983) 716 F.2d 1216, 1223 [observations were insufficient to corroborate informant].)   In other cases, the officers actually saw something they reasonably believed was contraband or a closely related item.  (People v. Jackson (1990) 218 Cal.App.3d 1493, 1498, 1501, 267 Cal.Rptr. 841 [officers observed purchase of ether cans and odor of ether];  People v. Fernandez, supra, 212 Cal.App.3d at pp. 988–989, 261 Cal.Rptr. 29 [police found pieces of cocaine ledger];  People v. Stanfill (1985) 170 Cal.App.3d 420, 423, 216 Cal.Rptr. 472 [officer saw marijuana cigarettes];  U.S. v. Del Vizo, supra, 918 F.2d 821 [agents saw packages shaped like cocaine];  U.S. v. Rodriguez, supra, 869 F.2d at p. 481 [van carried possible cocaine containers];  People v. Thomas (1980) 112 Cal.App.3d 980, 984–985, 169 Cal.Rptr. 570 [two people seen leaving defendant's apartment under the influence of an opiate].)

Whether probable cause to search a specific location can be based solely on counter-surveillance driving appears a question of first impression in California.  (But see United States v. Freitas, supra, 716 F.2d 1216, 1223 [holding such observations can be insufficient even with informant information].)   However, “drug courier profile” cases decided by the United States Supreme Court provide useful insight.

In United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, the defendant was stopped because she fit such a profile.²  She accompanied the police to a private room where she consented to a search which produced narcotics.  (Id. at pp. 547–549, 100 S.Ct. at pp. 1873–1874.)   The Supreme Court found the police conduct did not constitute an impermissible seizure which would taint the defendant's consent.   Although two justices found the encounter was entirely consensual (id. at pp. 551–557, 100 S.Ct. at pp. 1875–1879), the three remaining justices found there had been a valid detention followed by a consensual accompaniment.  (Id. at pp. 557–558, 560–565, 100 S.Ct. at pp. 1878–1879, 1880–1883.)   There was no suggestion the police conduct was justified by probable cause to arrest.

In Reid v. Georgia (1980) 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 the defendant was stopped because she arrived early in the morning from a known drug center, tried to conceal the fact she was traveling with another, and had no luggage other than a shoulder bag.  (Id. at p. 441, 100 S.Ct. at p. 2754.)   The Supreme Court concluded the drug courier profile did not justify even a detention.  (Ibid.)

In Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229, the defendant fit a drug courier profile ³ and was stopped by police.   The police effectively compelled him to accompany them to a large storage room and had his luggage brought there.   He “consented” to a search of the bags, where drugs were found.  (Id. at pp. 493–495, 103 S.Ct. at pp. 1321–1323.)   The Supreme Court upheld suppression of the drugs, holding the entire encounter was not consensual, the defendant's custody exceeded the bounds of a temporary detention, and there was not probable cause to arrest him.  (Id. at pp. 501–507, 103 S.Ct. at pp. 1326–1329.)

Finally, in U.S. v. Sokolow (1989) 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1, the defendant paid cash for two round trip airline tickets from Honolulu to Miami, a source city for narcotics activity.   He traveled under an assumed name, stayed in Miami for only 48 hours after a 20 hour flight, did not check any luggage and appeared nervous during the flight.  (Id. at p. 3, 109 S.Ct. at p. 1583.)   The Supreme Court found Sokolow's conduct created a reasonable suspicion criminal activity was afoot, justifying a brief detention.  (Id. at p. 11, 109 S.Ct. at p. 1587.)   However, the high court never suggested there was probable cause to arrest or search before a narcotics sniffing dog was employed.  (Id. at pp. 5–11, 109 S.Ct. at pp. 1584–1587.)

 The wisdom to be gained from these cases is that a “profile” which allows expert narcotics agents to discern ambiguous conduct as narcotics activity will justify a detention but not an arrest or search.   The drug courier profile in those cases is indistinguishable from the drug conspiracy profile which includes counter-surveillance driving, multiple pay telephone calls, and other strange conduct.   The drug courier profile does not provide probable cause and neither do the observations here.

Here, as in Florida v. Royer, supra, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, the police observations of suspicious driving patterns, pay telephone calls and other activities support a reasonable suspicion of narcotic activity.   If the officers had stopped Betancourt to confirm or dispel their suspicions and the detention produced facts sufficient to constitute probable cause, the search would be justified.

“Reasonable suspicion” and “probable cause” are both standards which are not determined by application of a bright line rule.  (U.S. v. Sokolow, supra, 490 U.S. 1, 7–8, 109 S.Ct. 1581, 1585–1586;  Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.)   But the requirement of probable cause to arrest or search has not been diluted by the recognition that less intrusive stops may be conducted on information and belief not rising to the level of probable cause.  (See Terry v. Ohio (1968) 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889.)   No court has held facts which merely constitute reasonable suspicion may support the issuance of a warrant.   We are not prepared to do so here, even giving due consideration to the preference accorded to warrants.  (People v. Superior Court (Brown), supra, 49 Cal.App.3d at p. 165, 122 Cal.Rptr. 459.)

 The Attorney General argues, even if probable cause was lacking, the officers reasonably relied on it in good faith.   We agree.   A dearth of probable cause to support a search warrant does not automatically mandate exclusion of evidence seized during its execution.   Rather, the decision to exclude the evidence from a subsequent trial is subject to a good faith exception to the exclusionary rule.  (United States v. Leon, supra, 468 U.S. 897, 905, 104 S.Ct. 3405, 3411.)

 In Leon, the United States Supreme Court held the exclusionary rule should not bar the use of evidence obtained by officers acting in good faith and in reasonable reliance on a search warrant ultimately found to be invalid.  (Ibid.)  The Court reasoned that the rationale behind the exclusionary rule, the deterrence of unreasonable police conduct, is not served in such circumstances, except under certain narrow exceptions.  (Id. at pp. 919–923, 104 S.Ct. at pp. 3418–3421.)   The four recognized exceptions are:  (1) where willfully or recklessly false statements are contained in the affidavit;  (2) where the magistrate issuing the warrant is not neutral and detached;  (3) where the affidavit does not provide the magistrate with a substantial basis for determining the existence of probable cause and is so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable;  and (4) where the warrant is facially deficient, (i.e., lacks particularity of the description of the place to be searched or the things to be seized).  (Id. at p. 923, 104 S.Ct. at p. 3421.)

Since the affidavit contained no demonstrably false statements, only the third exception is arguably applicable.   It was recently considered by the California Supreme Court in People v. Camarella (1991) 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63.   After reviewing Leon and its progeny, the court concluded the proper standard to be applied in such cases 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.]”  (Id. at pp. 605–606, 286 Cal.Rptr. 780, 818 P.2d 63.)   We must determine whether Wilkerson should have had such knowledge here.   Our task is made somewhat difficult by the lack of a more precise standard and paucity of case law on the subject.

In People v. Camarella, supra, an anonymous informant reported that the defendant was selling cocaine and provided details showing personal knowledge.   Police attempted to corroborate the information with a 15–month old report by an untested informant that the defendant sold cocaine, a three and one-half year old arrest of the defendant for possession of cocaine where he was found with documents showing sales, and verification of the defendant's new residence and place of employment.  (Id. at pp. 597–599, 286 Cal.Rptr. 780, 818 P.2d 63.)   The Supreme Court found this quantum of information was sufficient to support the requisite good faith belief that the magistrate properly issued the warrant.  (Id. at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.)

In reaching its conclusion, the court noted that in Leon the United States Supreme Court had found that the officer had submitted “ ‘much more than a “bare bones” affidavit.   The affidavit related the results of an extensive investigation and ․ provided evidence sufficient to create disagreement ․ as to the existence of probable cause.’ ”  (People v. Camarella, supra, 54 Cal.3d at p. 603, 286 Cal.Rptr. 780, 818 P.2d 63, quoting United States v. Leon, supra, 468 U.S. at p. 926, 104 S.Ct. at p. 3422.)

In Leon an untested informant said two individuals, one of whom had a prior arrest, were selling large amounts of drugs.   The informant had seen a drug sale within the past five months, and claimed the individuals kept small amounts at the residence and the rest elsewhere.   During surveillance the officers identified another man who was on probation for a drug offense and had listed the defendant as his employer.   When the defendant had been arrested on drug charges a year earlier, a companion had identified him as a major drug dealer.   Another informant said the defendant kept a large quantity of drugs at his Glendale residence.   Police observed a great deal of traffic at all of the suspect's residences, including the defendant's Burbank residence.   (United States v. Leon, supra, 468 U.S. at pp. 901–903, 104 S.Ct. at pp. 3409–3410.)   The United States Supreme Court held that the fruits of the search warrant issued on that information did not need to be suppressed even though the information was found to be stale and the later investigation did not cure it.  (Id. at pp. 904, 926, 104 S.Ct. at pp. 3410, 3422.)

Of over 70 California cases touching on Leon, we have found only eight dealing directly with the exception which we consider.   Of those, four found there was probable cause to support the warrant, but noted that Leon would save the fruit of the searches in any event.  (People v. Spears (1991) 228 Cal.App.3d 1, 19–20, 278 Cal.Rptr. 506;  In re Christopher R. (1989) 216 Cal.App.3d 901, 905, 265 Cal.Rptr. 91;  People v. Fernandez, supra, 212 Cal.App.3d at pp. 989–990, 261 Cal.Rptr. 29;  People v. Lopez (1986) 181 Cal.App.3d 842, 845–846, 226 Cal.Rptr. 714.)   Of the remaining four, three found no reasonable officer could believe that the benign facts ascertained from a minimal investigation could adequately corroborate the untested informants' tips.  (People v. Johnson (1990) 220 Cal.App.3d 742, 749–751, 270 Cal.Rptr. 70;  People v. Maestas (1988) 204 Cal.App.3d 1208, 1220–1221, 252 Cal.Rptr. 739;  Higgason v. Superior Court, supra, 170 Cal.App.3d 929, 944, 216 Cal.Rptr. 817.) ⁴  In the remaining case, Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 245 Cal.Rptr. 617, the court found that although the affiant's allegations pertaining to the informant's personal knowledge and reliability were conclusionary, a reasonable officer could have believed they were sufficient.  (Id. at pp. 1464–1466, 245 Cal.Rptr. 617.)

Although this case is not factually analogous to Rodriguez v. Superior Court, supra, it is distinguishable from those cases applying the exception to Leon.   In those cases the police investigation and surveillance to corroborate the informant tips were minimal.   Here, Wilkerson and other narcotics agents performed a detailed surveillance of the suspect's activities at multiple locations.   Wilkerson copiously set forth in his affidavit these observations and his vast experience in narcotics investigation.   At the time he sought the affidavit, there was no published case law directly on point, and other cases rendered the issue at least somewhat debatable.  (See, e.g., People v. Fernandez, supra, 212 Cal.App.3d 984, 988–990, 261 Cal.Rptr. 29;  U.S. v. Ocampo, supra, 937 F.2d at p. 490.)   A trained officer like Wilkerson could reasonably believe the case was close enough to put to the discretion of a magistrate.   That the magistrate erred does not compel suppression of the evidence.  (United States v. Leon, supra, 468 U.S. at pp. 920–921, 104 S.Ct. at p. 3419.) ⁵

The judgment is affirmed.

I concur in the result reached by the majority, but write separately to express my dissatisfaction with much of the majority's labored reasoning.

This case presents the quintessential Leon situation (United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Leon )), where evidence seized pursuant to a warrant later determined to be invalid may not be suppressed “if the officer executing the warrant was acting in an objectively good faith belief in the validity of the warrant.  [Citation.]  Reliance upon the warrant would be objectively unreasonable only if the affidavit was so lacking in probable cause indicia as to render official belief in its existence entirely unreasonable.  [Citation.]”  (People v. Fernandez (1989) 212 Cal.App.3d 984, 990, 261 Cal.Rptr. 29, citing Leon, supra, 468 U.S. at pp. 923, 926, 104 S.Ct. at pp. 3421, 3422.)

The majority admits, at least tacitly, that this is an exceedingly close case.   The facts clearly establish that a reasonable officer would not have known that his affidavit failed to establish probable cause.   As such, the Leon rule precludes suppression of the fruits of the search.  (Leon, supra, 468 U.S. at p. 922, fn. 23, 104 S.Ct. at p. 3420, fn. 23;  see also People v. Camarella (1991) 54 Cal.3d 592, 605–606, 286 Cal.Rptr. 780, 818 P.2d 63.)

Notwithstanding the clear applicability of Leon, the majority struggles with its result and further determines its opinion merits publication.   I fail to see, however, how a factual scenario so fundamentally on all fours with established precedent ought give rise to publication.

Finally, I am troubled by the majority's stated concern that its opinion not be construed as signalling “open season for searches ․,” (maj. opn., p. 740, fn. 5), and its warning that Leon may not be invoked to prevent suppression of evidence from searches under similar circumstances in the future.   The majority prejudges the inapplicability of the Leon doctrine to cases, whose factual scenarios will be varied, and ignores the law that when an affiant conducts a thorough investigation which renders the determination of probable cause “a close question,” issuance of a warrant by a neutral magistrate prevents suppression of the evidence.  (See People v. Camarella, supra, 54 Cal.3d at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.)

FOOTNOTES

FOOTNOTE.   See footnote 1, ante.

2.   The profile, like the activities here, is “an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs.”  (Id. at p. 547, fn. 1, 100 S.Ct. at 1873, fn. 1.)   The defendant fit the profile by traveling on a known drug route, being the last person to leave the plane, appearing to be nervous and observing her surroundings, passing the luggage area without retrieving luggage, and changing airlines for her return trip.  (Ibid.)

3.   Royer qualified by carrying heavy luggage, being young and casually dressed, appearing pale and nervous, looking at others, paying for his ticket in cash with a large number of bills, and putting incomplete information on his luggage identification tag.  (Id. at p. 493, fn. 2, 103 S.Ct. at p. 1322, fn. 2.)

4.   Justice Sonenshine's lead opinion in Higgason reasoned that Leon could not be raised for the first time on appeal.   However, both Justice Crosby and Justice Wallin disagreed, but found that the exception we deal with here applied.  (Id. 170 Cal.App.3d at pp. 945, 948–949, 951–953, 216 Cal.Rptr. 817.)

5.   Members of this court have opined on the dangers inherent in the Leon rule.  (Higgason v. Superior Court, supra, 170 Cal.App.3d at pp. 947, 952, 216 Cal.Rptr. 817 (conc. opns. of Crosby, J. and Wallin, J.).)   We are confident our application of the rule here will not be deleterious to Fourth Amendment protections.Specifically, our result does not signal open season for searches based only upon the type of observations made here.   We expect police and magistrates will heed the opinion and not seek or issue warrants based upon such a showing.   Although we do not express an opinion on the ultimate outcome if a search pursuant to such a warrant were challenged, we note that any officer claiming good faith would no longer be able to contend that he or she was dealing with an undecided point of law.

WALLIN, Associate Justice.

SONENSHINE, Acting P.J., concurs.