Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 495479
Haerle, J.
I. INTRODUCTION
After pleading guilty to 2 counts of a 13 count information and being sentenced to prison for a term of six years, appellant claims the trial court wrongly denied his Penal Code section 1538.5 (section 1538.5) motion. His principal argument is that the evidence upon which the search warrant of his home was sought was substantially stale. We reject his argument and hence affirm the judgment of conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2006, Detective Greg Stashyn of the Sonoma County Sheriff’s office sought a warrant authorizing the search of appellant’s home at 503 Joaquin Drive in the town of Sonoma. Stashyn’s affidavit in support of the application recited that, in the previous six months, a confidential informant (CI) had informed him that appellant was “selling large quantities of methamphetamine out of his residence.” The same source further stated that he/she had purchased methamphetamine from appellant in the past, and had seen an amount of methamphetamine in the house that was consistent with sales. However, although the CI was able to describe the house in which appellant lived and kept the drugs, he/she was not able to provide Stashyn the name of that street.
Stashyn determined to find out where appellant lived, and did so on August 19 and 20, 2006, when he drove past the house on Joaquin Drive and saw a gold Cadillac parked outside; a DMV check showed that the car was registered to appellant, and a criminal records check showed that appellant had been arrested and convicted numerous times for drug violations.
Between the August 2006 determination of the address of appellant’s home and the date Stashyn made out his affidavit, the latter received further confidential information regarding drugs in appellant’s home. This information came from a “confidential reliable informant” (CRI), who informed Stashyn that he/she had purchased controlled substances from appellant’s home in the past, and that within the past 10 days had observed “an amount of controlled substance and marijuana... that was consistent with sales” in that home. He/she had also seen at least one handgun therein. Stashyn then showed the CRI a DMV photograph of appellant, and he/she identified him as the person that lived at 503 Joaquin Drive.
The warrant was issued the same day, September 22, and served on appellant at his Sonoma home on September 27, 2006. A search of the home revealed a very large quantity of methamphetamine, as well as a very large arsenal of weapons. More specifically, the searching officers found almost a pound of crystal methamphetamine, scales and methamphetamine manufacturing instructions, steroids, 50 syringes and needles. On the weapons side of the ledger, the officers found 65 improvised bombs, five 12-gauge shotguns, two silencers, one rifle, one bayonet, a spear gun, a bullet proof vest, and much else along these lines, including hundreds of rounds of ammunition.
On October 17, 2007, a 13-count information was filed charging appellant with illegal possession of drugs, drug-related paraphernalia, and weapons and explosives, etc.
On November 30, 2007, appellant filed a motion to suppress, a motion the prosecution opposed, and which the trial court denied on February 6, 2008.
On February 27, 2008, appellant pled guilty to one count of possession of methamphetamine for sale and one count of possession of an assault weapon; he also admitted that he was armed during the commission of those two offenses, and stipulated to the forfeiture of money and weapons seized by the officers. In exchange, the remaining counts of the information were dismissed.
On April 28, 2008, the trial court sentenced appellant to a term of six years in state prison.
On May 16, 2008, appellant filed a timely notice of appeal.
III. DISCUSSION
As noted above, appellant’s principal contention is that the factual information contained in the affidavit offered to support the issuance of the search warrant was “remote in time,” “stale,” and thus “unworthy of consideration in determining whether an affidavit is supported by probable cause.”
Before evaluating this contention, we must first note our standard of review. Our Supreme Court has summarized that standard as follows: “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 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.’ [Citation.] In a pre-Proposition 8 case, we stated: ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant,... [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.] The magistrate’s determination of probable cause is entitled to deferential review. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft); cert. den. (2001) 532 U.S. 908; see also People v. Ayala (2000) 24 Cal.4th 243, 279; People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Pressey (2002) 102 Cal.App.4th 1178, 1182; People v. Thuss (2003) 107 Cal.App.4th 221, 235; People v. Garcia (2003) 111 Cal.App.4th 715, 720.)
With those standards in mind, we will summarize the chronology of the information set forth in the September 22, 2006, affidavit of Detective Stashyn. Just two pages of that affidavit discuss the evidence he learned from outside sources, and that evidence breaks down into three time frames. First of all, the evidence he received from the “CI” was reportedly provided “[w]ithin the past six months.” As noted above, that information was to the effect that appellant was selling large quantities of methamphetamine out of a house on a street the name of which the CI did not know, but was able to describe to Stashyn.
The second chronological phase appears to be the period August 19-31, 2006, when, according to the chronology set forth by Stashyn, he (1) did a DMV records check and learned that appellant had listed 503 Joaquin Drive in Sonoma as his address, (2) drove by that property on August 19 and 20, saw a gold Cadillac in the driveway, got its license number and then confirmed that it was registered to appellant, (3) on August 31, confirmed from his own department’s records that appellant lived at that address.
The third chronological phase was the 20 days preceding the drafting of the affidavit, i.e., during the period (approximately) of September 2-22, 2006. During that time, Stashyn interviewed a second source of information, labeled by him as a “CRI,” who had personally purchased “controlled substances” from appellant at the 503 Joaquin Drive property and during “the past ten days” had “observed an amount of controlled substance... in [appellant’s] residence that was consistent with sales.” Finally, the latter part of that period, i.e., September 12-22, the CRI was shown a photograph of appellant and confirmed that he was the person who “lived at 503 Joaquin Drive.”
Because the evidence cited in the affidavit includes much that was learned by law enforcement during the period from 10 to 30 days before its issuance, we agree with the trial court that this evidence was not “stale.”
The law on this subject was summarized recently by one of our sister courts as follows: “Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. [Citations.] 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. [Citation.] [¶] It is undisputed that the probable cause determination in this case was dependent on the information leading to and including the controlled buy. The relevant inquiry is thus whether [the officer obtaining the search warrant] held an objectively reasonable belief that this information had not grown stale by the time he sought and obtained the warrant. Although there is no bright line rule indicating when information becomes stale [citation], delays of more than four weeks are generally considered insufficient to demonstrate present probable cause. [Citations.] For example, a delay of 34 days between a controlled sale of heroin and the officer’s affidavit for the search warrant has been held insufficient to establish present probable cause. [Citation.] Longer delays are justified only where there is evidence of an activity continuing over a long period of time or the nature of the activity is such as to justify the inference that it will continue until the time of the search. [Citation.]” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 (Hulland).)
Other California cases discussing under what chronology and circumstances information supplied to law enforcement is considered “stale” (most of them cited in Hulland) include: Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; People v. Hernandez (1974) 43 Cal.App.3d 581, 586; Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434; People v. Cooks (1983) 141 Cal.App.3d 224, 298; People v. Medina (1985) 165 Cal.App.3d 11, 20-21; People v. Brown (1985) 166 Cal.App.3d 1166, 1169; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718 (Mikesell); and People v. Gibson (2001) 90 Cal.App.4th 371, 380-382 (Gibson). The Hulland court accurately summarized the principles set forth in these cases.
Our reasons for affirming the trial court’s denial of appellant’s section 1538.5 motion are several. In the first place, we must bear in mind the oft-repeated principle of Kraft (and many other cases reviewing section 1538.5 orders) that the magistrate’s probable cause determination is subject to “deferential review.” (Kraft, supra, 23 Cal.4th at p. 1041.)
Second, and contrary to the argument in appellant’s brief to us, there is no “disconnect” between the several time frames set forth in Detective Stashyn’s affidavit. In the first, dealing with his interview of the CI “[w]ithin the past six months,” Stashyn learned that the CI had purchased methamphetamine from a person with appellant’s name and had made those purchases “out of his residence.” But, and quite importantly regarding the “staleness” issue, the CI “did not know the name of the street where [appellant] lived but he/she was able to describe where it was.” During, the affidavit continued, “a subsequent records check,” Stashyn learned that appellant lived at the Joaquin Drive property. But—although this point was not made until a few paragraphs later—this “subsequent records check” was performed either on or after August 31, 2006; we know that because the “SCSD” (apparently meaning the Sonoma County Sheriff’s Department) records showed that appellant used that address “as of 8/31/06.” It was also in late August that Stashyn twice drove by the 503 Joaquin Drive property, saw a gold Cadillac in the driveway, checked the license number of that car with the DMV, and determined that it was registered to appellant at that address.
We confess to some confusion as the sequence of these various checks performed by Stashyn to determine where appellant resided, clearly an item of information not provided him in “the past six months” by the CI. He stated that he drove by 503 Joaquin on August 19 and 20, 2006, saw the Cadillac, and—presumably sometime there after—checked its license plate with DMV and learned that it was registered to appellant at that address. But he also states that, per his department’s records, “as of 8/31/06 [appellant] used 503 Joaquin Drive as his address.” Although Stayshn’s declaration could have been drafted more clearly regarding the order in which these things happened, that fact does not affect our conclusion that there was no “staleness,” as all of these address checks were performed no more than three to four weeks before the affidavit was executed and the search warrant issued and executed.
Thirdly, there is are direct connections between the evidence which, possibly standing alone, might well be “stale”—i.e., the evidence secured from the CI within “the past six months”—and the evidence secured in the three to four weeks before the affidavit’s execution. Those connections are: (1) the name give for the supplier of the methamphetamine was the same, (2) the purchasers, i.e., the CI and the CRI, were regular users of that drug, (3) both had seen large quantities of the drug at appellant’s residence, and (4) although the CI could not tell Stashyn the address at which he or she secured the drug, he or she was able to “describe where it was.” That description and a “subsequent records check” (as to which see ante) allowed Stashyn to determine that appellant “lived at 503 Joaquin Drive.”
A case relied upon by the Attorney General, and which appellant unsuccessfully attempts to distinguish, is almost directly on point. In Mikesell, the court explained how subsequent consistent information about husband and wife methamphetamine dealers in Plumas County rendered information in another affidavit, executed two years earlier about the same couple, not “stale”: “Defendants assert that the information in the Gamberg [i.e., the earlier] warrant was so stale as to be entitled to no weight in the probable cause determination. We do not agree. It is true as a general rule that information remote in time may be stale and unworthy of weight in a magistrate’s consideration of an affidavit supporting an application for a search warrant. [Citation.] However, if there are special circumstances that would justify a person of ordinary prudence to conclude that the alleged illegal activity had persisted from the time of the stale information to the present, then the passage of time has not deprived the old information of all value. [Citation.] Here, although the Gamberg warrant was based on information as old as two to four years, the Gamberg information combined with that contained in the Rives [i.e., the current] affidavit painted a picture of the defendants’ continuing participation in the drug trade. Therefore, the Gamberg information is entitled to some weight in the probable cause equation.” (Mikesell, supra, 46 Cal.App.4th at p. 1718.) Just so here: the CI information, albeit six months old, “painted a picture of [appellant’s] continuing participation in the drug trade.” (Ibid.)
A very similar holding was rendered in the even more recent Gibson case. There, the defendant protested that the evidence linking him to a residence in Palo Verde was stale, because the warrant issued in June 1999, and the affidavit provided in support of the warrant was based on police surveillance of that residence occurring from six to nine months previously, i.e., from October 1998 to January 1999. That did not matter, the court held because “the question of staleness depends on the facts of each case” and “[t]here was no reason to believe that appellant had moved.” It was, therefore, “entirely reasonable for the magistrate to conclude that in light of all the known facts, appellant’s residence had not changed in the preceding five to six months.” (Gibson, supra, 90 Cal.App.4th at pp. 380-381.)
In summary on the “staleness” issue, we conclude that the magistrate’s ruling that the Stashyn affidavit provided reasonable cause to issue a search warrant was and is correct: it was supported by evidence of drug dealing at and from the house searched within the previous three to four weeks which, in turned, was reinforced by evidence from another source of dealing of the same drug by the same person from the same location six months earlier.
As a somewhat collateral point, appellant contends that the two informants to the sheriff’s office were “insufficiently corroborated” by that office. More specifically, he contends that “the two informant observations coming more than five months apart are isolated observations which do not lend themselves to a finding that appellant was involved in a continuing narcotics operation.”
We strongly disagree. First of all, Stashyn performed a “criminal records check” on appellant and determined that he “had multiple arrests and convictions for 11377(a) H&S (Possession of a controlled substance).” This appears to be quite true: per his probation report, appellant had suffered eight (8) misdemeanor and felony convictions between 1992 and 1998, many of them involving drugs.
Finally, contrary to appellant’s argument, the information supplied by the CI “[w]ithin the past six months” and that supplied by the CRI more recently were quite consistent. Both (1) admitted to being methamphetamine users, (2) knew appellant’s name, (3) bought methamphetamine from him at his residence, (4) saw “large amounts” or “amounts consistent with sales” there, and (5) provided consistent descriptions of the residence (the CI via a description of the residence, the CRI via an address).
In short, appellant’s lack of corroboration argument is without merit.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.