PEOPLE v. MILLETTE (1989)

The People appeal from an order of the superior court denying their motion for reinstatement of a criminal complaint pursuant to Penal Code section 871.5.¹  The complaint had been dismissed by the magistrate at the preliminary hearing after that magistrate had ordered the suppression of all of the evidence seized pursuant to a search warrant and without which evidence the People were unable to proceed.   We reverse.

On May 3, 1987, the Honorable R. Bruce Minto, a judge of the Municipal Court in the Citrus Judicial District, sitting as a magistrate, issued a search warrant commanding members of the Los Angeles County Sheriff's Office to search a single-family home for drugs and paraphernalia.

The warrant was executed that same date and substantial quantities of cocaine and marijuana were seized.   A three count complaint was filed in the Municipal Court of the Pomona Judicial District charging defendants Paul Millette and Christopher Nieves with violating Health and Safety Code sections 11352 (sale and transportation of cocaine), 11359 (possession of marijuana for sale), and 11550 (use of cocaine).

On February 5, 1988, the date set for a preliminary hearing on the complaint, the Honorable Thomas A. Peterson, a judge of the Municipal Court for the Pomona Judicial District, also sitting as a magistrate, entertained a motion pursuant to Penal Code section 1538.5 to quash the search warrant and suppress all evidence seized thereunder.

In so doing, Judge Peterson ruled not only that Judge Minto had erred in issuing the search warrant but that the officer executing the warrant could not in good faith rely on the warrant for the reason that such reliance, although in “subjective good faith,” was “objectively unreasonable,” citing United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.

At the hearing on the motion to suppress the evidence, the officer who provided the information for the affidavit upon which the search warrant was based testified.   After listening to that testimony, Judge Peterson indicated that, while there were some minor differences between the testimony and the affidavit, the officer acted in good faith.   He made no finding that there was any false or misleading information in the affidavit.

Thus, both the issuing magistrate, Judge Minto, and the suppressing magistrate, Judge Peterson, based their decisions on the same evidence—the facts contained in the affidavit which accompanied the application for the search warrant.

We thus set forth the factual background for the issuance of the search warrant.

The house in question was located in the Diamond Bar area of Los Angeles County and was owned by one Kevin Toohey.   Toohey had leased the house to defendant Millette.   The lease expired on April 4, 1987.

On March 1, 1987, Toohey directed a letter to the defendant, who was apparently two months in arrears in the rent, telling him to vacate the premises by April 4, 1987.

After several unsuccessful attempts to contact defendant, Toohey received a call from defendant on April 12th advising that defendant would vacate the premises on April 13th.

Subsequently, Toohey went to the property only to find other unknown persons there who refused to answer the phone or the door.   Various cars were observed parked at the location none of which belonged to defendant.

Toohey, desirous of determining whether his property had in fact been abandoned by defendant Millette or whether it was being occupied by squatters and being subjected to waste, sought assistance from the sheriff's office to gain entrance to the premises.   He was advised by the sheriff's office that, while they would not become involved in a landlord-tenant dispute, they would assign a deputy sheriff to accompany him to the premises in an effort to gain entrance.   By prearrangement Deputy Sheriff Pohl met Toohey at the premises on May 3, 1987.   The deputy knocked on the door.   He heard a commotion inside, the slamming of doors, the flushing of toilets and the running of water.   He again knocked identifying himself as a deputy sheriff and, after considerable delay, a female, who was unknown to Mr. Toohey, opened the door.   It was at once apparent that this individual was under the influence of narcotics.   She stated that no one else was there.   Toohey and the deputy then entered the premises.   Once inside, the deputy located defendants Millette and Nieves, both of whom were also under the influence of narcotics.   In the kitchen, the deputy observed in plain view what appeared to be both cocaine and marijuana residue, along with packaging materials.   While the deputy was on the premises, the telephone rang.   When the deputy answered the telephone, an individual asked to purchase cocaine.

Deputy Pohl apparently made his observations in the kitchen after he had located the two defendants on the premises.   His stated reason for entering the kitchen was simply to see if there were any other individuals on the premises.²

At that point, Toohey advised the deputy that he had learned from neighbors that there had been a large volume of foot and vehicle traffic at the house at all hours of the night.   Individuals carrying small paper bags were seen leaving the premises.

All of the foregoing facts were relayed by Deputy Pohl to another deputy—an expert in narcotic traffic—who opined that marijuana and cocaine were being used, packaged, and sold at the location.   That deputy prepared an affidavit which was presented to Judge Minto and a search warrant was obtained to further search the house and seize any contraband that might be found therein.   The evidence suppressed was contraband seized in the search that was conducted under the warrant.

Clearly, the affidavit presented to Judge Minto, which disclosed that there were three persons in the house all under the influence of narcotics and that there was cocaine and marijuana residue in plain sight in the kitchen, would support a finding of probable cause to believe that additional quantities of narcotics would be found on the premises.

The only real issue presented was purely the legal one of whether the officer's presence in the house when he made the observations of the condition of the occupants and the presence of the narcotic debris was reasonable and proper.

 In issuing the warrant, Judge Minto obviously concluded that the deputy's presence in the house was reasonable.   Judge Peterson's analysis, however, was that, while the initial entry of the deputy onto the premises was perfectly proper, once defendant Millette was identified as the former tenant, the deputy was then required to close his eyes and make no further observations on the premises.   The judge then reached the startling conclusion that the deputy should have known that he had no further reason to be on the premises and that Judge Minto should not have been permitted to read that part of the affidavit which recited the observations made after the identification of the defendant Millette.³

According to Judge Peterson, he was required to excise from the affidavit any reference to those observations and that the affidavit as excised failed to support the issuance of the search warrant.   He further concluded that the deputy had no right to rely on Judge Minto's decision to issue the warrant because such reliance was “objectively unreasonable.”

In essence what occurred is that Deputy Pohl took certain action in assisting Mr. Toohey in entering the house.   He then presented a full account of those activities to Judge Minto.   The latter, in effect, rendered a legal opinion that the actions were reasonable and proper and directed the deputy to conduct a search of the premises.   The deputy relying on that legal opinion followed the directive of Judge Minto.

Judge Peterson then later rendered an opinion on the exact same facts that as a matter of law Judge Minto was wrong and, adding insult to injury, indicated that Deputy Pohl should have known that Judge Minto's legal conclusion was wrong and should have ignored it.

The “exclusionary rule” is designed to encourage the use of search warrants in preference to warrantless searches.   When a search warrant has been issued, it carries with it a presumption of validity.   It is a court order which mandates the police to conduct the search and should be examined “in a practical, realistic, and common sense manner, consistent with the strong preference which is accorded search warrants.  [Citation.]”  (People v. Kashani (1983) 143 Cal.App.3d 77, 81, 191 Cal.Rptr. 562.)

 A logical extension of that concept is that when a police officer in good faith acts in reliance on a warrant, he should not be expected to second guess the judge who issued the warrant and should not be faulted for carrying out the court's direction.  (United States v. Leon, supra, 468 U.S. 897, 921, 104 S.Ct. 3405, 3419.)   Under the Fourth Amendment to the United States Constitution, the ultimate test is whether under the whole of the circumstances the officer's conduct in making a search and seizure was reasonable.   (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)

Judge Peterson's reference to objective reasonableness comes from United States v. Leon, supra, where the United States Supreme Court held that suppression was appropriate in the case of a search with a warrant if the affidavit on which it was based was “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’   [Citation.]”  (Id. at p. 923, 103 S.Ct. at 3421.)   Further, “an officer who does not merely execute but prepares and submits a warrant application containing misstatements and omissions cannot rely on the acceptance of that application as evidence that his conduct was objectively reasonable.   A magistrate who determined that probable cause exists on the basis of such an affidavit did not make a fully informed decision.”  (People v. Maestas (1988) 204 Cal.App.3d 1208, 1215, 252 Cal.Rptr. 739, emphasis added.)

As we have pointed out, there was no question that the affidavit here contained facts to support a finding of probable cause and that Judge Minto made an informed decision.   Hence, the reasonableness of Deputy Pohl's reliance on the warrant does not fall under the principles enunciated above.

 The question here is can an officer reasonably rely on a judge's interpretation of the law?   We think the question answers itself.   (Massachusetts v. Sheppard (1984) 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737.)

In any event, the warrant here was perfectly valid.   The facts set forth in the affidavit portrayed reasonable conduct on the part of Deputy Pohl.

 The property owner, Toohey, had legal reason to seek admission to the premises to determine if it had been abandoned and to inspect for waste.   The officer being validly on the premises as a result of the property owner's invitation (see De Conti v. Superior Court (1971) 18 Cal.App.3d 907, 910, 96 Cal.Rptr. 287), was not required to blind himself to things which were in plain view (see People v. Block (1971) 6 Cal.3d 239, 243, 245–256, 103 Cal.Rptr. 281, 499 P.2d 961;  People v. Coffee (1980) 107 Cal.App.3d 28, 34, 165 Cal.Rptr. 676.)

 Judge Peterson erred in failing to give the warrant the presumption of validity to which it was entitled, in failing to give due deference to the determination of the magistrate who issued the warrant and in failing to recognize the officer's good faith reliance on the warrant.

In view of our determination that the search was valid and no suppression was in order, we need not reach the issue of defendant Nieves' standing to attack the warrant or the question of the propriety of one municipal court judge sitting in review of the decision of another municipal court judge.

The order is reversed.   The matter is remanded to the superior court with directions to order the complaint reinstated and for further proceedings in accordance with this opinion.

FOOTNOTES

1.   Penal Code section 871.5 reads in pertinent part:  “(a) When an action is dismissed by a magistrate pursuant to Section ․ 871 ․, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under the provisions of Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate․”

2.   As earlier indicated, there were some differences between Deputy Pohl's testimony and the affidavit.   The affidavit did not include the fact, as later testified to by Deputy Pohl, that he had observed marijuana debris on the floor when he first entered the house.   That omission, of course, could not have aided the obtaining of the warrant.The only discrepancy of any consequence was the order in which Deputy Pohl discovered Millette and Nieves on the premises.   The affidavit indicated that Nieves was found on the premises and then Millette.   In his testimony Deputy Pohl reversed the order.   In view of the circumstances of this case, the chronology was irrelevant.   Both Deputy Pohl's testimony and the affidavit clearly reflected that the observations he made in the kitchen were made after Millette was identified.

3.   The law, of course, is to the contrary and envisions that an officer seeking a warrant should present all information he has in order to enable the judge to make an informed determination.  (See People v. Kurland (1980) 28 Cal.3d 376, 384–385, 168 Cal.Rptr. 667, 618 P.2d 213;  Morris v. Superior Court (1976) 57 Cal.App.3d 521, 527, 129 Cal.Rptr. 238;  Malley v. Briggs (1986) 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271.)

COMPTON, Acting Presiding Justice.

GATES and FUKUTO, JJ., concur.