Opinion
C082901
04-30-2018
TANNERE MICHAEL MARTINISKO, Petitioner, v. THE SUPERIOR COURT OF TRINITY COUNTY Respondent; THE PEOPLE, Real Party in Interest.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed in this case on April 30, 2018, be modified as follows:
On page 13, change the disposition from "The order denying defendant's motion to suppress evidence is affirmed. The stay of the underlying prosecution is vacated upon the filing of this opinion." to "The petition for writ of mandate is denied. The stay of the underlying prosecution is vacated upon the filing of this opinion."
This modification does not change the judgment. FOR THE COURT: /S/_________
ROBIE, Acting P. J. /S/_________
MAURO, J. /S/_________
HOCH, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F019)
Law enforcement officers executed a search warrant at the residence of defendant Tannere Michael Martinisko and obtained evidence of the sale and cultivation of marijuana. The Trinity County Superior Court denied defendant's motion to suppress the evidence.
Defendant now seeks a writ of mandate directing the trial court to vacate its order, contending (1) the affidavit in support of the warrant did not establish probable cause to search his home, (2) the good faith exception does not apply, and (3) the affiant substantially misled the magistrate.
We will deny the petition for writ of mandate. The affidavit provided sufficient evidence from which the magistrate could find probable cause to search defendant's home, and the affiant did not mislead the magistrate.
BACKGROUND
Deputy Sheriff Christopher Compton sought a warrant to search property owned by defendant. In his affidavit, Deputy Compton described his training and experience. The Trinity County Sheriff's Office hired him in 2006, and in 2011 it assigned him to the Trinity County Sheriff's Office Narcotics Task Force. He received training on narcotics investigations, including aerial observation and spotting marijuana grows. He participated in at least 20 aerial reconnaissance operations for illegal marijuana cultivation where he observed thousands of cultivation sites. He conducted multiple eradication operations on national forest and private lands. From his experience, he knows high grade marijuana is grown in Trinity County in large quantities.
Deputy Compton declared that in December 2014, he received a report from the Washoe County Sheriff's Office in Nevada regarding defendant. One of that office's deputies assigned to the Northern Nevada Interdiction Task Force performed a traffic stop on defendant on November 12, 2014, on westbound Interstate 80. The deputy asked defendant where he was going and from where he was coming. Defendant's responses were misleading, but the deputy determined defendant was traveling from Northern California to Wyoming or Kansas and back through Reno on a five-day trip, taking little time to visit or rest. The deputy asked defendant if he was transporting large amounts of U.S. currency or illegal drugs. Defendant denied having any.
During the conversation with defendant, the deputy "noticed multiple indicators of criminal behavior[]." He obtained consent to search the vehicle. He found two large, Mylar, heat-sealed bags hidden between the car's manifold and its radiator. Looking inside the bags, he found U.S. currency totaling $141,200. Defendant refused to answer questions about the money. He said he lied about not having money because it was none of the deputy's business. In Deputy Compton's opinion, the currency was bundled and packaged in a manner consistent with proceeds from the transportation and sale of narcotics. After a positive alert by a narcotics K-9, the deputy seized the currency.
Upon receiving the report from the Nevada deputy, Deputy Compton researched for properties owned by defendant. He located a 5.07-acre parcel defendant purchased in 2009 and still owned. Next, Deputy Compton reviewed the most recent Google imagery of the property. This imagery was dated July 10, 2012, approximately two and one-half years before Deputy Compton received the Nevada report. The imagery showed marijuana being cultivated on the property. Within the last week before he applied for the warrant, Deputy Compton surveilled the property using a camera. He saw a vehicle registered to defendant leave the property.
In his affidavit, Deputy Compton applied his experience in narcotics enforcement to the facts to complete his showing of probable cause. He stated: "I know from my training and experience that people who cultivate marijuana for sales often cultivate marijuana year after year often increasing in size. Once the marijuana is processed, it is packaged and then transported to be sold. Given the current black-market value of marijuana in California people often transport the processed marijuana out of state to capitalize on their monetary gain, as the value of marijuana in other states is considerably higher. [¶] I believe that by searching [defendant's property], I will find information related to the sales and cultivation of marijuana."
The magistrate issued the search warrant on January 15, 2015. The warrant authorized the search of defendant's property, including any buildings, containers, vehicles, and people located on the property.
Officers executed the warrant on January 19, 2015, over a month after the Nevada deputy stopped defendant, and weeks after Deputy Compton received the Nevada deputy's report. The officers found 28.24 pounds of processed marijuana packaged for sale, four cashier's checks totaling $41,000, an unloaded Glock pistol, Glock magazines, two cell phones, and a scale with a five-pound capacity. In addition, officers found 107 pots where marijuana had been cultivated during the summer of 2014. Deputy Compton estimated the plants in those pots would have produced approximately 214 pounds of processed marijuana with a market value of $256,800.
The People charged defendant with possession of marijuana for sale (Health & Saf. Code, § 11359) and cultivating marijuana (Health & Saf. Code, § 11358), and further alleged that defendant was armed with a firearm during the commission of the offenses (Pen. Code, § 12022, subd. (a)(1)).
Defendant moved to suppress the evidence obtained from the search of his property (Pen. Code, § 1538.5), and he also moved to traverse the search warrant in a Franks hearing. The trial court denied the suppression motion, concluding there was probable cause based on all the facts, including Deputy Compton's opinion that, based on his experience, people who cultivate marijuana for sale often cultivate it year after year and in increasing amounts. The trial court also denied the motion to traverse, concluding defendant did not make a substantial showing that Deputy Compton's statements in the affidavit were knowingly or intentionally false or made with reckless disregard of the truth.
Defendant filed a petition for writ of mandate with this court, asserting the same arguments he raised in the trial court. We stayed the underlying prosecution and issued an order to show cause.
DISCUSSION
I
Defendant contends the warrant lacked probable cause to justify a search of his home. He argues there was insufficient evidence from which the magistrate could conclude he was a drug dealer or that evidence of drug dealing would be found in his home. He also claims the search warrant was improperly based on stale information, and Deputy Compton's statement was too broad to overcome these deficiencies and justify searching his home.
The Attorney General counters that although individual items of information, such as the substantial amount of cash in defendant's engine, might not have been sufficient by themselves to justify the warrant, all the facts considered together and in conjunction with Deputy Compton's expert opinion were enough to establish probable cause. We agree with the Attorney General.
" '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.' " [Citations.] That showing must appear in the affidavit offered in support of the warrant. [Citation.]' (People v. Carrington (2009) 47 Cal.4th 145, 161.) 'The showing required in order to establish probable cause is less than a preponderance of the evidence or even a prima facie case.' (Id. at p. 163.)" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 369-370.)
"In reviewing a search conducted pursuant to a warrant, an appellate court inquires 'whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.' (People v. Kraft (2000) 23 Cal.4th 978, 1040, citing Illinois v. Gates (1983) 462 U.S. 213, 238-239 .) 'The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him [or her], 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.' (Illinois v. Gates, supra, 462 U.S. at p. 238.) The magistrate's determination of probable cause is entitled to deferential review. (People v. Kraft, supra, 23 Cal.4th at p. 1041, citing Illinois v. Gates, supra, 462 U.S. at p. 236.)" (People v. Carrington, supra, 47 Cal.4th at p. 161.)
The magistrate may also consider expert opinion when it determines whether a sufficient nexus exists between the place and the evidence sought. "The magistrate issuing the warrant 'is entitled to rely upon the conclusions of experienced law enforcement officers in weighing the evidence supporting a request for a search warrant as to where evidence of crime is likely to be found. [Citation.] It is not essential that there be direct evidence that such evidence will be at a particular location. Rather, the magistrate " 'is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.' " [Citation.]' [Citations.]" (People v. Lazarus (2015) 238 Cal.App.4th 734, 764.)
Of relevance here, this court and other courts have held that if there is probable cause to believe the suspect was dealing drugs, it follows that evidence of drug dealing is likely to be found where the suspect lives. (See, e.g., People v. Koch (1989) 209 Cal.App.3d 770, 779-781, disapproved on another ground in People v. Weiss (1999) 20 Cal.4th 1073, 1075; People v. Aho (1985) 166 Cal.App.3d 984, 993; People v. Johnson (1971) 21 Cal.App.3d 235, 242-243.) The critical factor in these cases "was that the police had probable cause to believe the specific defendant whose residence was to be searched was himself involved in the narcotics traffic." (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1788.)
We conclude the magistrate had probable cause in this case to authorize the search of defendant's home. The factual evidence and Deputy Compton's testimony established a substantial basis for concluding a fair probability existed that defendant was involved in drug trafficking and a search of his home would uncover wrongdoing. The evidence from the Nevada traffic stop established it was substantially probable defendant was somehow involved in drug trafficking. When defendant was stopped in Nevada, he was heading west at the end of a cross-country trip that left little time for rest. He initially misrepresented the extent of his trip to the deputy. He also lied about possessing large sums of money. The deputy found two Mylar heat-sealed bags hidden between the car's manifold and its radiator and containing $141,200 in cash. Defendant refused to answer questions about the money. The currency was bundled and packaged in a manner consistent with proceeds from the transportation and sale of narcotics. A narcotics K-9 positively alerted.
The Google image established defendant's property had been used for marijuana cultivation. After receiving the Nevada deputy's report, Deputy Compton located a roughly five-acre parcel defendant purchased in 2009 and still owned. Although the most recent Google imagery was about two-and-a-half years old, it showed marijuana being cultivated on the property. Within the last week before he applied for the warrant, Deputy Compton surveilled the property and saw a vehicle registered to defendant leave the property.
Deputy Compton's testimony linked these facts together. It linked defendant's history of drug cultivation with his recent stop and concealment of a large sum of cash probably obtained from drug sales, and provided the magistrate a reasonable basis to conclude evidence of drug dealing existed at defendant's home. Based on his extensive experience and training, Deputy Compton testified that people who cultivate marijuana for sale often cultivate marijuana year after year and often in larger amounts. After they process the marijuana, they package it and transport it to be sold. Deputy Compton also testified that given the demand for marijuana grown in California and Trinity County, sellers often transport the processed marijuana out of state to sell for higher prices. His testimony provided a viable and substantial basis for explaining how the evidence showed defendant was likely involved in drug trafficking. The evidence was thus sufficient to establish a fair probability that defendant was involved in drug trafficking and evidence of that crime would be found in his home.
Defendant nevertheless argues that although officers found money in his car, the car was in another state and the money was only suspected of having a connection to drugs. He claims officers found no evidence of drug dealing, such as observations of many different people coming and going from his property. He also argues the Google image provided no basis for searching inside the home, as it showed only that marijuana had been cultivated somewhere outside on the five-acre lot. Deputy Compton saw defendant leave the property once, but that showed only that defendant lived there. Defendant claims this evidence failed to establish a sufficient nexus linking his suspected criminal activity to his home.
Defendant also asserts the evidence was too stale to be reliable. The Google image of his property was over two years old, and the Washoe County seizure of the money from his car occurred 64 days before the warrant was issued. He claims the trial court erred by relying on Deputy Compton's expert opinion to overcome the staleness of the evidence, as the Deputy's statement was too attenuated and broad to justify searching defendant's home for evidence of marijuana sales and cultivation.
We disagree with defendant's arguments. He views the evidence in a piecemeal fashion and outside of its context. The magistrate, however, correctly based its decision on "all of the circumstances set forth in the affidavit" (Illinois v. Gates, supra, 462 U.S. at p. 238), including Deputy Compton's knowledge and experience.
Defendant claims the Google image is stale, but he does not consider it with the other evidence. "The question of staleness concerns whether facts supporting the warrant application establish it is substantially probable the evidence sought will still be at the location at the time of the search. 'No bright-line rule defines the point at which information is considered stale. [Citation.] Rather, "the question of staleness depends on the facts of each case." [Citation.] "If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale." ' ([People v. Carrington, supra, 47 Cal.4th] at pp. 163-164.)" (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 370, original italics.)
Considered together, all the evidence, including the Google image, justifies a person of ordinary prudence to conclude defendant's marijuana cultivation and trafficking continued to the time the warrant was sought. "[I]n cases involving ongoing narcotics businesses, lapses of several months -- and up to two years in certain circumstances -- are not sufficient to render the information in an affidavit too stale to support probable cause. [Citations.]" (U.S. v. Fernandez (9th Cir. 2004) 388 F.3d 1199, 1254 [five-month old wiretapped statements of Mexican mafia defendant stating he possessed guns at his home held not to be stale when considered with affiant's experience investigating that gang].) Indeed, the Ninth Circuit Court of Appeals "has held that information as old as eight months or twenty-two months was not stale when considered in light of more recent information in the affidavit, which served to 'update' the earlier information. [Citations.]" (Id. at p. 1254, fn. 38.) We conclude this is particularly true in a case involving cultivation, which unlike simple possession, often requires an investment for equipment, irrigation and other infrastructure. Cases discussing possession are not necessarily applicable to the cultivation context.
For example, defendant relies on People v. Hirata (2009) 175 Cal.App.4th 1499 (Hirata), but that case is distinguishable. There, the defendant purchased drugs from a drug trafficking organization 82 days before a warrant issued to search his home. His transaction was one of many discovered in a nine-month investigation of the trafficking organization and discussed in the affidavit. Affirming the trial court's grant of defendant's suppression motion, the court of appeal concluded evidence of defendant's transaction was stale and unreliable to justify searching his home. The court stated: " 'Although there is no bright line rule indicating when information becomes stale . . . , delays of more than four weeks are generally considered insufficient to demonstrate present probable cause.' [Citation.]" (Id. at p. 1504, quoting People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) The court held the 82-day delay and the lack of evidence indicating there were any additional sales to defendant during that time rendered the evidence stale. (Hirata, supra, 175 Cal.App.4th at pp. 1504-1505.)
Hirata does not apply here for various reasons. One, the court in Hirata had to give deference to the trial court's grant of the suppression motion and its reasonable inferences from the evidence. (Hirata, supra, 175 Cal.App.4th at p. 1506.) We must give deference to the trial court's denial of defendant's suppression motion. Two, Hirata did not involve prior cultivation on the defendant's land. And three, there was no evidence in Hirata, stale or otherwise, linking the defendant's purchase of the drugs to his home. (Id. at pp. 1505, 1506.) Here, Deputy Compton discovered marijuana had been grown on defendant's property some two years prior, which suggested the money seized from defendant in Nevada was linked to continued drug trafficking, especially in light of Deputy Compton's experience and knowledge that drug growers often continue growing year after year. Hirata does not describe the circumstances before us.
Based on all the circumstances, we conclude the trial court did not err in denying defendant's suppression motion. There was sufficient evidence from which the magistrate could determine there was a fair probability that evidence of drug trafficking would be found at defendant's residence. Because we reach this conclusion, we do not address defendant's argument that the good faith exception does not apply.
II
Defendant further contends Deputy Compton misled the magistrate, and the trial court should have held a Franks evidentiary hearing to traverse the warrant. He asserts the deputy misled the magistrate in three ways: (1) the deputy inaccurately summarized portions of the police report regarding the Nevada traffic stop; (2) he failed to specify the amount or location of the marijuana he saw in the Google image growing on defendant's property; and (3) he did not confirm the Google imagery actually corresponded with defendant's property or residence. The evidence does not support defendant's contentions.
"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. The trial court must conduct an evidentiary hearing only if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. Innocent or negligent misrepresentations will not support a motion to traverse. (Franks v. Delaware, [supra, 438 U.S. at pp.] 154-156; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.) 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. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1581-1582; People v. Sousa (1993) 18 Cal.App.4th 549, 562-563.) In either setting, the defendant must make his showing by a preponderance of the evidence, and the affidavit is presumed valid." (People v. Scott (2011) 52 Cal.4th 452, 484, original italics.)
Defendant asserts Deputy Compton misled the magistrate when he said defendant's responses to the Nevada deputy's questions were misleading. Defendant contends the police report from that stop shows defendant's responses were not misleading.
We disagree with this contention. Defendant initially told the Nevada deputy he drove his car from his home in Redding, California, to Reno where he stayed one night. He said he rented a car in Reno to drive to Cheyenne, Wyoming, to visit his father for the weekend. He said he was on his way back in the rental car when he was stopped on November 12. The deputy read from the rental contract that defendant rented the car on November 7 and was to return it on November 14. The contract said defendant's destination was Kansas, not Wyoming. The deputy asked defendant why the contract said Kansas. Defendant said, "[I]t was an insurance issue and that because Wyoming is near Kansas that was the insurance policy picked for the vehicle."
The deputy knew from his training that the rental contract shows the state of destination selected by the customer, not based on any insurance policy. The deputy asked defendant if he had already traveled to Kansas, and he said he had. He drove a loop to Kansas, then back to Wyoming and now was on his way to Reno. Asked why he went to Kansas, defendant said he went there to visit a friend who recently had a baby.
Deputy Compton wrote in his affidavit that the indications of criminal behavior included defendant lying about his destination and, given his travel plans, the impracticality of driving from Reno to Kansas and Wyoming, visiting people in both states, and returning to Reno -- all in five days. These facts support Deputy Compton's description of defendant's answers to the Nevada deputy as misleading.
Defendant contends Deputy Compton made material omissions when he failed to specify in his affidavit the amount or location of the marijuana he saw growing on defendant's property in the Google image, and failed to confirm the Google image actually depicted defendant's property. But Deputy Compton explained his extensive experience in identifying marijuana cultivation from aerial observation, and he testified the image was of defendant's property. He did not mislead the magistrate.
Under these circumstances, the trial court did not err when it determined not to convene a Franks hearing.
DISPOSITION
The order denying defendant's motion to suppress evidence is affirmed. The stay of the underlying prosecution is vacated upon the filing of this opinion.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.
Franks v. Delaware (1978) 438 U.S. 154 667 (Franks).