PEOPLE v. MACHUPA (1993)

Daniel Neil Machupa appeals his conviction by guilty plea of possession of marijuana for sale (Health & Saf.Code, § 11359) and possession of cocaine while armed with a firearm (Health & Saf.Code, § 11350;  Pen.Code, § 12022, subd. (a)).  He contends his motion to suppress evidence (Pen.Code, § 1538.5) was erroneously denied because the police obtained the evidence as the result of an illegal entry and search of his house.

FACTS

The factual basis of appellant's superior court motion to suppress was the evidence presented at the preliminary hearing and his declaration supporting his motion to suppress brought at the preliminary hearing and denied by the magistrate.

Deputy Sheriff Frank Battles testified he was sent to El Sobrante to assist in the investigation of a shooting.   He found the wounded victim at 5591 San Pablo Dam Road.   The victim refused to provide information regarding his assailant, but Battles observed a trail of blood from the victim's location going along a sidewalk and up a common driveway, terminating at a point where the driveway for 5611 San Pablo Dam Road branched off the common driveway.   At the juncture of the two driveways he observed two .32 caliber shell casings and a baseball cap.   From witnesses Battles learned that an altercation occurred at this juncture between the victim and a man in a white Cadillac, and that the white Cadillac had fled the scene after the shooting.   Battles knocked on the front door of 5611 San Pablo Dam Road;  appellant answered.   When Battles explained he was investigating a shooting, appellant replied he had been asleep and heard nothing and was not familiar with the victim's name.   Battles then returned to the victim's location.

Approximately 20 minutes later appellant approached Battles and Sergeant Dale Morrison as they were standing at the juncture of the two driveways.   They told appellant about seeing the shell casings and asked if he had fired any weapons that day or if he had any weapons in his possession or in his house.   Appellant replied that he had a handgun.   When the officers asked to see it, appellant said he would retrieve it.   Morrison “told him to hang on a second and explained to him that since we were dealing with a shooting, we really didn't trust him to go inside and bring the gun back out by himself.   And that we wished to accompany him into the residence while he picked up the gun for our own safety.”   Appellant replied, “I guess,” and led them through the house to a bedroom.   As appellant retrieved a handgun and a shotgun from under the bedclothes, Battles stood in the bedroom doorway.   He noticed a small plastic bag of what appeared to be marijuana on the bedside table.

Battles asked if he could look through the rest of the house to assure that no one else was present.   As appellant escorted the officers through an empty kitchen and living room, they passed a study with a blanket hanging over its doorway.   Morrison asked if he could go inside to ensure that it was unoccupied, and appellant responded affirmatively.   When Morrison came out of the study, Battles remarked on the plastic bag of marijuana he had seen in the bedroom.   Morrison replied, “Well, you should take a look here.   There is more here.”   Appellant and the two officers then went into the study, where Battles saw a “substantial quantity of marijuana.”   Appellant was then arrested.

Several hours later Detective Robert Hansen executed a search warrant for appellant's house.   The search warrant was issued on the basis of Hansen's affidavit, which in turn was based on information Hansen obtained from Morrison and Battles.   The affidavit states that Hansen received a telephone call at home from Morrison approximately four hours after Morrison and Battles were called to the site of the shooting.   Morrison told Hansen that:  (1) During the investigation of the shooting he and Battles contacted appellant, who said he had two guns in his house;  (2) they were “invited” into appellant's house “as [appellant] agreed to retrieve his two guns;” and (3) in the bedroom Morrison observed on the night stand a large clear zip lock bag containing marijuana.

At the conclusion of his conversation with Morrison, Hansen went to his office and contacted Battles, the reporting officer, for more details.   Battles told Hansen that when appellant informed them he had two weapons and the officers asked to see them, appellant replied, “I'll get them”;  Battles told appellant the officers “would have to go with him” (emphasis added), which they did without protest from appellant.

During his search of appellant's house Hansen seized the evidence upon which the conviction was based.

Appellant did not testify at the preliminary hearing, but in support of his motion to suppress filed a declaration stating that on the day in question he was awakened by a knock on his door.   He told the inquiring deputy sheriff he knew nothing about a shooting or its victim.   After dressing he heard police radios, so he went outside.   Two deputy sheriffs were standing in a common driveway approximately 60 to 70 feet from his house, and appellant approached them.   When asked if he owned a handgun, appellant replied he did, but not a .32 caliber.   They asked to see the handgun, and appellant said he would get it for them.   They followed him to his house, and as he walked through the front door, they continued to follow him, saying “something to the effect of, ‘We can't let you go in there alone, there might be another body or another person in here.’ ”   One of the deputies followed him to his bedroom, where he retrieved his handgun and gave it to the deputies.   The other deputy then went into another room saying he had to check it for people.   Appellant denied inviting the deputies into his house and denied they sought, or that he gave, his permission to enter.

In denying appellant's motion, the magistrate found that appellant's “[consent] was insufficient[ ] [b]ut I cannot say that the officers were in any way acting in bad faith․  [I]n fact, the information they tried to put in the affidavit at least from their standpoint would have acted as a valid consent․  [¶] But ․ there is clearly sufficient information in the affidavit if believed that would have allowed [the magistrate issuing the search warrant] to find that there was no material misrepresentation․”

The superior court denied the renewed motion to suppress.

STANDARD OF REVIEW

When a motion to suppress evidence is made at the preliminary hearing, and where, as here, the evidence at the renewed hearing in the superior court is limited to the evidence of the preliminary hearing, the trial court is bound by the factual findings of the magistrate.   It becomes, in effect, a reviewing court, drawing all inferences in favor of the magistrate's findings where they are supported by substantial evidence.   Given the superior court's role as a reviewing rather than a fact-finding court, the appellate court reviews the determination of the magistrate.   Assuming the magistrate's findings are supported by substantial evidence, this court evaluates the constitutional reasonableness of the search based on the facts found by the magistrate.  (People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309.)

DISCUSSION

The Fourth Amendment, which precludes unreasonable searches and seizures, generally prohibits a warrantless entry of a residence, absent exigent circumstances or consent.   Evidence seized in violation of a defendant's Fourth Amendment rights is subject to exclusion from the prosecution's case-in-chief (People v. Camarella (1991) 54 Cal.3d 592, 602, 286 Cal.Rptr. 780, 818 P.2d 63, citing Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652), but if the challenged evidence was obtained in objectively reasonable reliance on a subsequently invalidated search warrant, exclusion is inappropriate.   In other words, the evidence should be suppressed only if it can be said that the officer conducting the search knew, or could properly be charged with knowing, that the search was unreasonable under the Fourth Amendment.  (United States v. Leon (1984) 468 U.S. 897, 919, 104 S.Ct. 3405, 3418, 82 L.Ed.2d 677.)

Normally, a warrant issued by a magistrate suffices to establish that the officer acted in good faith in conducting the search, but the officer's reliance on the technical sufficiency of the warrant issued by the magistrate must be objectively reasonable.  (United States v. Leon, supra, 468 U.S. at pp. 919, 922, 104 S.Ct. at pp. 3418, 3420.)   For example, if the magistrate was misled into issuing a warrant by information in a supporting affidavit which the affiant knew to be false or would have known to be false except for his reckless disregard of the truth, there are no objectively reasonable grounds for believing the warrant was properly issued.  (Id., at pp. 922–923, 104 S.Ct. at p. 3420.)   A reviewing court's good-faith inquiry is confined to the objectively ascertainable question of whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.  (Ibid., fn. 23;  People v. Camarella, supra, 54 Cal.3d at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.)

The affidavit on which the instant search warrant was based reflects such misleading information.   Affiant Hansen states that Sergeant Morrison told him appellant “invited” the officers into his house.   This is a conclusionary statement unsupported by observable fact, contained in an affidavit prepared by an officer who was not present, and contradicted by a statement attributed to the other officer present.   Deputy Battles is reported as telling appellant the officers “would have to go with him.” (Emphasis added.)   Detective Hansen, a member of the sheriff's department for 101/212 years at the time he presented his affidavit, would be expected to know that absent exigent circumstances officers may not enter a residence without a warrant unless they have the resident's consent, and that the consent must be free, voluntary and unequivocal, and not a mere acquiescence to a claim of legal authority.   (Florida v. Royer (1983) 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229;  People v. Bailey (1985) 176 Cal.App.3d 402, 404–405, 222 Cal.Rptr. 235.)   The fact that one officer told Hansen they were invited and the other officer said, in effect, that they entered without regard to appellant's permission, should have alerted Hansen to an ambiguity concerning consent that he was required to clarify before seeking the warrant.   His failure to do so precludes the police from entertaining a good-faith belief that the warrant was properly issued.  Leon held that suppression “remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.  [Citation.]”  (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.)

Where a supporting affidavit for a search warrant contains tainted or impermissible material, the appropriate procedure is to excise such material from the affidavit and determine whether the edited affidavit contains sufficient evidence to provide a neutral magistrate probable cause to issue a search warrant.  (Franks v. Delaware (1978) 438 U.S. 154, 171–172, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667.)

A magistrate assesses an affidavit for probable cause by a totality-of-the-circumstances test.  (Illinois v. Gates (1983) 462 U.S. 213, 238–239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)   Absent the information derived from the unlawful entry into appellant's house, the affidavit contained only the information that appellant resided near the site of the shooting, that .32 caliber shell casings were found in a common driveway, that a trail of blood went from the common driveway to the victim's location, and that although appellant informed the deputies he had two guns, neither were .32 caliber.   Further, conspicuously absent from the affidavit is the fact that the investigating officers were told that the person who apparently shot the victim fled the scene in a white Cadillac.   This is insufficient to constitute a “fair probability” that evidence of the shooting the officers were investigating would have been found at appellant's residence.  (Id., at p. 238, 103 S.Ct. at p. 2332.)

The People rely on People v. Camarella, supra, 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63, for the proposition that if the police reasonably believed they had consent to enter appellant's residence, their subsequent reliance on the warrant satisfies the Leon good faith test, regardless of the lack of actual consent.   We have no quarrel with this proposition.   However, the factual matrix of the instant case does not lend itself to the analysis suggested by the People.

Leon cited four situations in which the good faith exception did not apply and exclusion remained an appropriate remedy:  (1) “[I]f the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth”;  (2) “where the issuing magistrate wholly abandoned his judicial role”;  (3) where the warrant is “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[ ]’ ”;  and (4) where the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.”  (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.)

Camarella dealt with the third Leon situation, wherein the police fairly laid out all their information before the magistrate and obtained a search warrant.   The issue was whether the police could objectively and reasonably have believed that the affidavit supporting the warrant established probable cause.   There was no suggestion in Camarella that in preparing their supporting affidavit, the police mischaracterized the facts, misled the magistrate or demonstrated a reckless disregard for the truth, although it was contended that they should have conducted further investigation.

The instant case does not involve a police analysis of probable cause per se—the People do not suggest they had probable cause to enter or search appellant's residence;  rather, they rely on consent for their initial, warrantless entry.   We have concluded that it was not objectively reasonable for the police to believe they were “invited” into appellant's residence or had his consent to enter, when they told him they wanted to see his guns and “would have to go with him” to retrieve them.   Further, given the actual reports from the investigating officers at the scene, the statement in the affidavit that the officers were “invited” into the residence manifests a reckless disregard of the facts.

In light of the initial unlawful entry and the misleading information in the supporting affidavit, we necessarily conclude that the Leon “good faith” exception does not apply to validate the search conducted pursuant to the warrant.  (United States v. Leon, supra, 468 U.S. at p. 924, 104 S.Ct. at p. 3421.)

The judgment is reversed and the matter remanded with instructions to vacate the order denying appellant's suppression motion and enter a new order granting said motion.

HANING, Associate Justice.

PETERSON, P.J., and KING, J., concur.