People v. Nevins CA2/7

Filed 12/14/20 P. v. Nevins CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301471
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA087457)
v.
ANTHONY NEVINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Thomas Rubinson, Judge. Affirmed.
Pamela Tedeschi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
______________________
After his motion to quash and suppress evidence was
denied, Anthony Nevins pleaded no contest to maintaining a
place for the unlawful sale, giving away or use of a controlled
substance. (Health & Saf. Code, § 11366.)1 Pursuant to a
negotiated agreement, Nevins was placed on formal probation for
three years. On appeal Nevins contends the trial court erred in
denying his motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Search Warrant Affidavit
Los Angeles Police Detective Gregory McNamee applied for
a search warrant to pursue an investigation into potential
violations of sections 11358 (planting, harvesting or processing
cannabis plants) and 11366 (maintaining a place for the unlawful
sale, giving away or use of a controlled substance). In an
affidavit supporting the application, McNamee stated he had
received information on November 9, 2017 from a citizen who
wished to remain anonymous that a possible marijuana grow was
being housed in a single family residence at 23455 Justice Street
in Canoga Park. The informant stated there was an
overpowering odor of marijuana at and around the location and
various vehicles were parked in front, and in the driveway, of the
home.
Detective McNamee’s statement of probable cause
explained he went to the location in the early afternoon of
November 14, 2017 and smelled a strong odor of marijuana
emanating from the residence when he was in the driveway and
again when he was across the street. McNamee observed
1 Statutory references are to this code unless otherwise
stated.
2
security cameras on the wall above the garage door and the
walkway leading to the front door. The street-facing windows on
the first floor of the two-story house were covered by blinds; the
windows on the second floor were open. McNamee declared an
elementary school was in “close proximity to the location,” and
stated fire hazard conditions associated with marijuana
cultivation were of “great importance to [the] investigation.” The
affidavit also stated a check with the Los Angeles Department of
Water and Power (LADWP) showed that electricity consumption
for the residence was 15 times greater than for similar residences
in the neighborhood.
Describing his experience, Detective McNamee, a
Los Angeles police officer since 1999, declared he was currently
assigned to the Topanga area narcotics enforcement detail, had
previously worked in the Hollywood area and North Hollywood
area narcotics enforcement details and had participated in
numerous narcotics investigations leading to arrests for
possession, possession for sale and sale of marijuana,
methamphetamine, cocaine and heroin. McNamee also said he
had received formal and informal training regarding the manner
in which narcotics are sold.
Detective McNamee concluded, based on his training and
experience and the information he had obtained, “there is a fair
probability of possession of marijuana for the purposes of sales
and cultivation . . . taking place at 23455 Justice Street.”
Judge Melvin D. Sandvig issued a search warrant for the
residence on November 15, 2017.
2. Execution of the Warrant and Charges Against Nevins
Executing the search warrant the same day at the
Justice Street residence, Detective McNamee and several
3
Los Angeles police officers found 355 marijuana plants, more
than 30 grams of cocaine and additional quantities of other
controlled substances. In addition, officers recovered 32 LED
light bars, a digital scale with concentrated cannabis residue and
$2,923 in cash in various denominations.
Nevins was charged in a two-count felony complaint with
violating sections 11351 and 11378, both of which prohibit
possession for sale of specified controlled substances.
3. The Motion To Quash, Traverse and Suppress
Before the preliminary hearing Nevins moved pursuant to
Penal Code section 1538.5 to quash and traverse the search
warrant and suppress all evidence seized at the Justice Street
residence, contending Detective McNamee’s affidavit failed to
establish probable cause and contained material omissions and
misrepresentations.2 Emphasizing the search in this case
occurred a year after California voters had approved
Proposition 64, which significantly modified California law
relating to the recreational use of marijuana and expressly
decriminalized limited cultivation of marijuana at a private
residence, Nevins argued McNamee had no training in lawful
marijuana conduct and, therefore, his observations about the
significance of the smell of marijuana should have been
disregarded. In fact, Nevins contended, because marijuana use
and cultivation at a private residence were now legal, the smell of
marijuana was not properly considered a factor in determining
probable cause to search.
2 A motion to quash challenges the facial validity of the
warrant. A motion to traverse attacks the underlying veracity of
the statements made in the search warrant application.
4
The motion also pointed to other purported issues with
Detective McNamee’s affidavit. His statement comparing the
electricity usage at the subject property and other residences,
Nevins argued, lacked foundation and was based on multiple
levels of hearsay. There was no information as to what records
were searched or how they had been maintained; nor was there
any explanation of the nexus between Nevins’s apparently
greater electricity use than his neighbors and a marijuana
cultivation operation. In addition, although McNamee declared
the residence was in close proximity to an elementary school, it
was actually several houses beyond a sign that stated “End of
School Zone.” Nevins also argued nothing in the affidavit
explained why McNamee believed there was a fire hazard, nor
did it indicate McNamee had any training or expertise that would
permit him to opine on that topic.
At the hearing on the motion, in addition to the points
raised in his papers, Nevins argued that, to the extent the
conduct described in the warrant affidavit was still unlawful, it
was at most a misdemeanor. Accordingly, he asserted, it was a
material misstatement for Detective McNamee to seek a search
warrant for property being used to commit a felony.
Following extended oral argument, the magistrate
(Judge Eric Harmon) denied the motion. The magistrate
explained the question before him was not whether he agreed the
affidavit established probable cause, but whether the issuing
magistrate had a substantial basis for believing the warrant
should issue. Applying that standard and considering all the
factors together—the strong odor, the electricity usage and the
security cameras—the magistrate concluded the warrant was
valid. The magistrate also found there had been no
5
misrepresentations or intentional or reckless omission of material
information by Detective McNamee. Finally, the magistrate
ruled, even if the warrant had been defective, the officers were
entitled to rely on it under the good faith exception of United
States v. Leon (1984) 468 U.S. 897 (Leon).
Following a preliminary hearing before Judge Harmon,
Nevins was charged by information with the same two felony
counts as set forth in the earlier complaint. Nevins then renewed
his motion to suppress all evidence in the trial court, relying on
the grounds asserted before the preliminary hearing magistrate.
The court (Judge Thomas Rubinson) denied the motion.
The court explained, notwithstanding Proposition 64, cannabis
remains an enumerated controlled substance under Health and
Safety Code section 11054, subdivision (d)(13); violation of Health
and Safe Code section 11366, maintaining a place for the
unlawful sale, giving away or use of a controlled substance,
including those identified in section 11054, subdivision (d)(13), is
a wobbler offense; and Penal Code section 1524,
subdivision (a)(3), authorizes issuance of a search warrant when
property is in the possession of a person with the intent to use it
in the commission of a “public offense,” which, under Penal Code
section 16, includes not only felonies but also misdemeanors and
infractions. The court further ruled that hearsay (the
information concerning electricity usage) can support a search
warrant and, based on the strong smell from across the street
and the electricity use, the issuing magistrate had a substantial
basis for authorizing the search warrant. As had the preliminary
hearing magistrate, the trial court also ruled, even if for some
reason a warrant should not have issued, the Leon good faith
6
exception would apply; and the motion to suppress was properly
denied.
4. Nevins’s Plea and Sentence
Following denial of Nevins’s motion to suppress, the
information was amended to add a violation of section 11366 as
count 3. Nevins entered a plea of no contest to that charge.
Pursuant to a negotiated agreement the court suspended
imposition of sentence and placed Nevins on three years formal
probation with conditions including performance of 34 days of
community service. Counts 1 and 2 were dismissed.
DISCUSSION
1. Governing Law and Standard of Review
a. The motion to quash
“The pertinent rules governing a Fourth Amendment
challenge to the validity of a search warrant, and the search
conducted pursuant to it, are well settled. ‘The question facing a
reviewing court asked to determine whether probable cause
supported the issuance of the warrant is whether the magistrate
had a substantial basis for concluding a fair probability existed
that a search would uncover wrongdoing.’ [Citations.] ‘The test
for probable cause is not reducible to “precise definition or
quantification.”’ [Citation.] But . . . it is ‘“less than a
preponderance of the evidence or even a prima facie case.”’
[Citation.] ‘“The task of the issuing magistrate is simply to make
a practical, commonsense 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.”’
[Citations.] ‘The magistrate’s determination of probable cause is
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entitled to deferential review.’ [Citations.] . . . [T]he warrant
‘can be upset only if the affidavit fails as a matter of law to set
forth sufficient competent evidence’ supporting the finding of
probable cause.” (People v. Westerfield (2019) 6 Cal. 5th 632, 659-
660; accord, People v. Miles (2020) 9 Cal. 5th 513, 576; People v.
Kraft (2000) 23 Cal. 4th 978, 1040-1041; see Illinois v. Gates
(1983) 462 U.S. 213, 238-239.)
b. The motion to traverse
“‘A defendant has a limited right to challenge the veracity
of statements contained in an affidavit of probable cause made in
support of the issuance of a search warrant. . . . Innocent or
negligent misrepresentations will not support a motion to
traverse. [Citations.] A defendant who challenges a search
warrant based on omissions in the affidavit bears the burden of
showing an intentional or reckless omission of material
information that, when added to the affidavit, renders it
insufficient to support a finding of probable cause. In either
setting, the defendant must make his showing by a
preponderance of the evidence, and the affidavit is presumed
valid.’” (People v. Miles, supra, 9 Cal.5th at pp. 576-577; accord,
People v. Scott (2011) 52 Cal. 4th 452, 484.)
c. The Leon good faith exception
In Leon, supra, 468 U.S. 897 the United States Supreme
Court, considering a case in which an officer had relied on a
search warrant that was later found to be deficient, held the
exclusionary rule should not apply “when an officer acting with
objective good faith has obtained a search warrant from a judge
or magistrate and acted within its scope,” even if the warrant was
subsequently invalidated. (Id. at p. 920.) The Leon Court
reasoned that, “[i]n the ordinary case, an officer cannot be
8
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 policeman 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.”
(Id. at p. 921.) The doctrine, the Supreme Court noted, is
objective and fact-based: “[O]ur 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. In making this
determination, all of the circumstances—including whether the
warrant application had previously been rejected by a different
magistrate—may be considered.” (Id. at p. 922, fn. 23.)
As the California Supreme Court explained in People v.
Macabeo (2016) 1 Cal. 5th 1206, 1222, notwithstanding
United States Supreme Court’s recognition of the good faith
exception in Leon, the Leon Court also cautioned, “[T]he officer’s
reliance on the magistrate’s probable-cause determination and on
the technical sufficiency of the warrant he issues must be
objectively reasonable, [citation], and it is clear that in some
circumstances the officer will have no reasonable grounds for
believing that the warrant was properly issued.’ [Citation.]
Leon noted that an officer could not reasonably rely on a warrant
based on an affidavit ‘“so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable,”’ or
if the warrant was ‘so facially deficient . . . that the executing
officers cannot reasonably presume it to be valid.’”
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2. The Search Warrant Was Supported by Probable Cause
a. The impact of Proposition 64
Nevins’s challenge to the validity of the search warrant and
Detective McNamee’s showing of probable cause centers on the
changes in California law effected in November 2016 by voter
approval of Proposition 64, the Control, Regulate and Tax Adult
Use of Marijuana Act and the impact of those changes on the
factors properly considered when determining whether probable
cause supports issuance of a search warrant. Prior to passage of
Proposition 64 medical use of marijuana was legal under
California law, but nonmedical use was illegal. The stated
purpose of Proposition 64 was “to establish a comprehensive
system to legalize, control and regulate the cultivation,
processing, manufacture, distribution, testing, and sale of
nonmedical marijuana, including marijuana products, for use by
adults 21 years and older, and to tax the commercial growth and
retail sale of marijuana.” (See Voter Information Guide, Gen.
Elec. (Nov. 8, 2016) text of Prop. 64, § 3, p. 179.) The intent of the
Act included “[p]ermit[ting] adults 21 years and older to use,
possess, purchase and grow nonmedical marijuana within defined
limits for use by adults 21 years and older as set forth in [the
Act].” (Id., text of Prop. 64, § 3, subd. (l), p. 179.)
Cannabis remains identified as a Schedule I controlled
substance. (§ 11054, subd. (d)(13).) However, Proposition 64
added section 11362.1 to the Health and Safety Code generally
allowing possession, smoking and ingestion of small amounts of
marijuana, as well as limited cultivation of marijuana plants.
Section 11362.1, subdivision (a), states: “Subject to
Sections 11362.2 [imposing restriction on personal cultivation of
cannabis], 11362.3 [limiting locations where use of cannabis is
10
permitted, including school grounds], 11362.4 [establishing
penalties for violating section 11362.3], and 11362.45 [identifying
laws not affected by Proposition 64], but notwithstanding any
other provision of law, it shall be lawful under state and local
law, and shall not be a violation of state or local law, for persons
21 years of age or older to: [¶] (1) Possess, process, transport,
purchase, obtain, or give away to persons 21 years of age or older
without any compensation whatsoever, not more than 28.5 grams
of cannabis not in the form of concentrated cannabis; [¶]
(2) Possess . . . not more than eight grams of cannabis in the form
of concentrated cannabis, including as contained in cannabis
products; [¶] (3) Possess, plant, cultivate, harvest, dry, or process
not more than six living cannabis plants and possess the
cannabis produced by the plants; [¶] (4) Smoke or ingest cannabis
or cannabis products; and [¶] (5) Possess, transport, purchase,
obtain, use, manufacture, or give away cannabis accessories to
persons 21 years of age or older without any compensation
whatsoever.”3
Section 11362.1, subdivision (c), declares that cannabis and
cannabis products involved in conduct made lawful by
section 11362.1, subdivision (a), are not “contraband,” and
further provides, “no conduct deemed lawful by this section shall
constitute the basis for detention, search, or arrest.” Under
section 11358, subdivision (c), a person 18 years old or older who
cultivates more than six living cannabis plants is guilty of a
3 Effective June 27, 2017 Senate Bill No. 94 (2017-2018 Reg.
Sess.) changed “marijuana” to “cannabis” throughout
section 11362.1. (See Stats. 2017, ch. 27, § 129.)
11
misdemeanor.4 Similarly, possession for sale of marijuana by an
adult is a misdemeanor except in certain circumstances not
involved in this case. (§ 11359, subds. (b) & (c).)
b. Reliance on the strong odor of marijuana
Nevins does not dispute that both the unidentified
informant and Detective McNamee were able to detect the strong
odor of marijuana emanating from the Justice Street residence
when standing across the street from the house or that the smell
supported an inference of the presence of marijuana. (See Robey
v. Superior Court (2013) 56 Cal. 4th 1218, 1240 [distinctive odor
can provide probable cause to support issuance of a search
warrant]; People v. Cook (1975) 13 Cal. 3d 663, 668 [strong odor of
fresh marijuana supports probable cause that marijuana is
present], disapproved in part on another ground in People v.
Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.) Rather, his argument
is that it was not possible for McNamee, who lacked specific
training in cannabis cultivation, to assess whether the smell was
created by more than six plants and, therefore, whether the
conduct at the residence was unlawful. And even if he could
determine there were more than six plants being grown at the
residence, Nevins continues, that merely gives rise to criminal
liability for a misdemeanor, not a felony, as McNamee asserted
he was investigating.
4 The penalty prescribed by section 11358, subdivision (c), is
six months in county jail, a fine of $500 or both. Cultivation of
more than six living plants may be punished as a felony when
done by a person with certain prior convictions or intentionally or
with gross negligence in a manner that causes substantial
environmental harm. (§ 11358, subd. (d).)
12
Nevins’s argument fundamentally misapprehends the
nature of the showing required for issuance of a search warrant.
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.)
“‘“[S]ufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment.”’” (People v. Beck
and Cruz (2019) 8 Cal. 5th 548, 592.) Accordingly,
Detective McNamee did not need to know Nevins was growing
more than six plants; he only needed to believe, based on the
information he had, it was fairly probable cultivation at the
residence exceeded the limits permitted by Proposition 64. (See
People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 369-
370 [“‘Probable cause sufficient for issuance of a warrant requires
a showing that makes it “‘substantially probable that there is
specific property lawfully subject to seizure presently located in
the particular place for which the warrant is sought.’” . . . ‘The
showing required in order to establish probable cause is less than
a preponderance of the evidence or even a prima facie case’”].)
Moreover, as discussed, the question presented in reviewing the
order denying the motion to quash is one more step removed—
that is, whether the magistrate had a substantial basis for
concluding a fair probability existed that the search would
uncover wrongdoing. (People v. Miles, supra, 9 Cal.5th at p. 576;
People v. Westerfield, supra, 6 Cal.5th at pp. 659-660.)
McNamee’s background in drug enforcement and his declaration
concerning the overwhelming strong odor, coupled with the
unusually high electricity usage reported by the LADWP,
13
provided ample grounds for the magistrate’s decision to issue the
warrant.5
People v. Pellegrin (1977) 78 Cal. App. 3d 913, discussed at
some length by Nevins, does not suggest a different result. In
Pellegrin a San Diego police officer stated in his affidavit that he
had observed one three-foot marijuana plant growing next to a
fence at the rear of the defendant’s home. The officer opined the
plant did not appear to be growing wild and explained he knew
individuals who cultivated marijuana and kept material related
to unlawful cultivation hidden in their residence and garages.
(Id. at p. 915.) Based solely on that information, a warrant was
issued to search the defendant’s home. (Id. at p. 916.) The court
of appeal reversed the ensuing conviction for possession of
concentrated marijuana, holding the affidavit on which the
search warrant was based was insufficient because the
magistrate was not presented with facts indicating marijuana
was being cultivated in the backyard. “Without a showing the
marijuana was not growing wild there are no facts from which it
can be inferred contraband was in [defendant’s] home. [The
officer’s] conclusory statement: ‘Such plant did not appear to be
growing wild’ was of no assistance to the magistrate.” (Id. at
p. 917.) Here, in contrast, Detective McNamee presented the
facts upon which he based his inference that large-scale
cultivation of cannabis plants was occurring at
5 Although the presence of security cameras and closed
blinds on the street-facing windows, standing alone, do not
suggest anything other than a concern for safety and privacy,
these additional facts certainly reinforced the fair probability
that unlawful activity was occurring at the Justice Street
residence.
14
23455 Justice Street—the strong odor of marijuana not only in
the driveway but also from across the street, reported by the
informant and confirmed by McNamee, as well as the abnormal
electricity usage—and the issuing magistrate, unlike the
magistrate in Pellegrin, was able to make his own determination
that a fair probability of criminal behavior existed. While
McNamee also offered his opinion, that is not only proper but also
useful in assessing the existence of probable cause. (See, e.g.,
People v. Stanley (1999) 72 Cal. App. 4th 1547, 1555 [“the opinions
of an experienced officer may legitimately be considered by the
magistrate in making the probable cause determination”].)
Nevins’s further objection that, even if unlawful, under
Health and Safety Code section 11358 growing more than
six marijuana plants is only a misdemeanor, is doubly flawed.
First, as the trial court explained when denying Nevins’s
renewed motion to suppress, pursuant to Penal Code
section 1524, subdivision (a)(3), a search warrant may be issued
for property that is intended for use in a misdemeanor, or even
an infraction, not simply for property used as the means of
committing a felony. To the extent Detective McNamee’s
affidavit misstated the nature of the offenses being investigated,
Nevins failed to show that misstatement was in any way material
to the magistrate’s decision to issue the warrant.
Second, although section 11358 was one of the bases for the
search warrant identified by Detective McNamee, he also
asserted there was a fair probability of cultivation of marijuana
at the Justice Street house in violation of section 11366. That
section, which ultimately was the basis for the felony charge to
which Nevins pleaded, provides, “Every person who opens or
maintains any place for the purpose of unlawfully selling, giving
15
away, or using any controlled substance which is . . . specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of
Section 11054 . . . shall be punished by imprisonment in the
county jail for a period of not more than one year or the state
prison.” As discussed, cannabis remains a controlled substance.
Section 11366 does not criminalize growing more than
six cannabis plants—the misdemeanor offense described in
section 11358—but continues to define as a wobbler offense
providing the location for the cultivation of marijuana with the
intent the product thereafter will be sold or otherwise used in an
unlawful manner. Although Nevins argued in both his original
and renewed motions that section 11366 as applied to cannabis
did not survive Proposition 64, there is no case law supporting
that position. McNamee was expected only to have a reasonable
knowledge of what the law prohibits, not to anticipate future—
and, at least at this point, somewhat questionable—developments
in the law. (See People v. Silveria and Travis (2020) 10 Cal. 5th
195, 239 [trial court properly denied motion to suppress based on
vehicle search conducted in compliance with New York v. Belton
(1981) 453 U.S. 454 prior to decision in Arizona v. Gant (2009)
556 U.S. 332]; People v. Macabeo, supra, 1 Cal.5th at p. 1225.)
c. Reliance on the elevated consumption of electricity
Consumption of electricity at many times the usual rate for
household uses is consistent with a marijuana-growing operation.
(People v. Stanley, supra, 72 Cal.App.4th at p. 1555.) Nevins
provides several reasons why Detective McNamee’s statement
summarizing LADWP’s report on the elevated consumption of
electricity at the Justice Street residence would be inadmissible
at trial. (See, e.g., Evid. Code, §§ 702, subd. (a) [testimony of a
witness is inadmissible unless witness has personal knowledge of
16
the matter], 1200, subd. (b) [absent a recognized exception,
hearsay is not admissible].) But admissibility is not the test; and
it was entirely proper for the issuing magistrate to consider the
far greater use of electricity at the Justice Street residence,
together with the strong odor of marijuana, in determining
probable cause for the search had been established.
“[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.’” (Illinois v. Gates, supra,
462 U.S. at pp. 241-242; accord, People v. Hale (1968)
262 Cal. App. 2d 780, 789 [hearsay is admissible to establish
probable cause to search]; People v. Cooper (1967) 249 Cal. App. 2d
479, 481 [hearsay evidence is admissible to show probable cause
for arrest and search]; see Humphrey v. Appellate Division (2002)
29 Cal. 4th 569, 573 [“[p]robable cause, unlike the fact itself, may
be shown by evidence that would not be competent at trial”].)
Although Nevins correctly observes the affidavit did not
identify what records LADWP had searched to come to its
conclusion the residence at 23455 Justice Street used 15 times as
much electric power as similar residences in the neighborhood,
how those records were compiled, the dates of usage that were
compared or how it was determined which neighboring residences
were similar, the absence of those details does not in any way
indicate the information was unreliable. Nothing in the affidavit
suggested Detective McNamee did not actually obtain usage
information from LADWP or that he had misrepresented the data
provided. Indeed, other than complaining about the lack of
detail, Nevins did not argue in his original or renewed motion
and does not suggest on appeal in what way the 15-times-as-
much comparison was inaccurate. As discussed, to traverse the
17
warrant, it was Nevins’s burden to demonstrate McNamee’s
omission of information not only was intentional or reckless but
also that, if added, the information would have rendered the
affidavit insufficient to support a finding of probable cause.
(People v. Miles, supra, 9 Cal.5th at pp. 576-577; People v. Scott,
supra, 52 Cal.4th at p. 484.) Nevins failed to carry that burden;
and, as we must, absent the requisite showing we presume the
affidavit was valid.
3. The Officers Reasonably Relied on the Warrant in Good
Faith
Both the preliminary hearing magistrate and the trial
court found Detective McNamee and his fellow officers
reasonably relied in good faith on the warrant and, even if the
warrant were invalid, under Leon, supra, 468 U.S. 897 Nevins’s
motion to suppress evidence was properly denied. As Nevins
explains, the Supreme Court in Leon held the good faith
exception does not apply “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”; if “the issuing magistrate
wholly abandoned his judicial role”; if the affidavit was “so
lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable”; or if the warrant was
facially deficient, for example in failing to particularize the place
to be searched or the things to be seized, so that “‘the executing
officers cannot reasonably presume it to be valid.’” (Id. at p. 923.)
None of those grounds exists in this case.
As discussed, contrary to Nevins’s contention, to the extent
the suspected unlawful conduct at the Justice Street residence
was more properly characterized as a misdemeanor rather a
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felony, there is nothing in the record to suggest
Detective McNamee made the misstatement intentionally or
recklessly or that the issuing magistrate was in any way misled
by the possible error. Similarly, Nevins’s suggestion that the
issuing magistrate abandoned his judicial role is simply a
repackaging of his argument the magistrate erred in concluding
probable cause existed to search the residence. There was no
showing the magistrate did anything other than properly perform
his assigned tasks in reviewing the affidavit and ensuring that
the warrant properly identified the location to be searched and
the items that could be seized. Finally, for the reasons discussed,
we believe the affidavit sufficiently established probable cause.
But if it did not, the affidavit was not so deficient that it was
“entirely unreasonable” for the officers who executed the warrant
to believe it was valid.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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