Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC465566
McAdams, J.
Following the denial of his motions to discover information relating to a confidential citizen informant, traverse the search warrant, and suppress evidence pursuant to Penal Code section 1538.5, defendant Bryan Bower pleaded no contest to possession of ammunition by a felon and was granted probation. (§ 112316, subd. (b).) On appeal, defendant contends that the trial court erred in denying his motions. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF CASE AND FACTS
Search Warrant Affidavit
On August 20, 2004, San Jose Police Officer Jonathan Shaheen applied for a warrant to search the premises at 321 South 13th Street and 371 South 13th Street in San Jose. According to Shaheen’s affidavit of in support of warrant, he met personally with San Jose police officers Daniel Carley and Dean Ackemann and received from them the following information.
Within 10 days of the affidavit, a concerned citizen (CC) contacted Officer Daniel Carley about marijuana cultivation at 321 South 13th Street. CC told Officer Carley that in June of 2004 he or she had observed marijuana plants growing inside 321 South 13th Street by looking through an exterior window. CC said that the house at 321 South 13th Street appeared to be vacant, but a person named “Brian”, who lived on the same block at 371 South 13th Street, took care of the house.
The affidavit described CC as not under arrest and not a suspect in a police investigation, but rather a good citizen acting in the interest of law enforcement. No promises, rewards or inducements were given to CC for his or her information.
On the afternoon of August 20, 2004, Officer Carley went to 321 South 13th Street to investigate CC’s allegation. The house appeared to be vacant, and in the back yard, which Carley accessed through an open gate down the driveway, Carley saw three dead marijuana plants two to three feet tall.
He went immediately to 371 South 13th Street to contact “Brian.” He knocked on the door, but no one answered. Walking along the driveway on the north side of the house, Carley saw an open kitchen window and smelled an odor of marijuana wafting from it. The same odor was also emanating from a basement vent. Then Carley saw in the yard a potted mature marijuana plant approximately three feet tall and in bud.
“With the consent of the occupant, Officer Carley entered a neighboring property.” From that property, without encroaching on the property at 371 South 13th Street, Carley saw three mature marijuana plants with buds in the backyard of 371 South 13th Street and four marijuana plants with buds on the upstairs deck at 371 South 13th Street.
“Officer Carley then realized that there was a person inside the house, looking out at the officers. Officers went to the open rear door and called the occupant out. Officers detained the occupant to prevent possible destruction of evidence.” One of the officers investigated the electricity meter and concluded an illegal bypass had been set up to steal electricity.
Officers identified the occupant as Brian Jay Bower, who had a prior conviction for cultivation of marijuana. Bower claimed to be a medical marijuana patient and proferred a physician’s statement to that effect, but the listed physician could not be reached to verify Bower’s claim. Bower refused to consent to a search of the premises at 371 South 13th Street. To ensure the security of the locations, police officers stayed at 321 and 371 South 13th Street pending issuance of the search warrant.
The search warrant was issued the same day. The items seized pursuant to the warrant in the subsequent search included two boxes of ammunition, 118 marijuana plants without stalks and one whole marijuana plant, one large plastic bag with marijuana leaves and buds, nine plastic bags of marijuana and marijuana products, six small marijuana plants and two hanging marijuana plants.
Charges
On September 8, 2004, a complaint was filed charging defendant Bower with cultivation of marijuana, possession of marijuana for sale and theft of utility services. (Health & Saf. Code §§ 11358, 11359; § 498, subd. (b).) A first amended complaint filed January 5, 2006, added one count of possession of ammunition by a felon. (§ 12316, subd. (b).) On May 17, 2006, a preliminary hearing was held at which the prosecution chose to present no evidence on the drug and utility theft charges. Officer Carley testified that on August 20, 2004, he ran a records check on defendant and learned that defendant had suffered a prior conviction for marijuana cultivation in 1999 and had guns registered to himself. That same day, the fire department forced open a safe located in the basement of his house. In the safe police located two boxes of .44 caliber ammunition, 50 cartridges per box, and paperwork in defendant’s name. No firearms were found. Defendant was bound over for trial on a violation of section 12316, subdivision (b). The court made no holding order on the remaining counts and they were dismissed pursuant to section 1385 for insufficient evidence. An information was filed charging defendant with a single violation of section 12316, subdivision (b), possession of ammunition by a person prohibited from possessing a firearm because of a prior conviction for violating Health and Safety Code section 11358.
Motions
Defendant filed motions to “secure information regarding ‘citizen informant’ ” pursuant to People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger), traverse the search warrant and request an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks), and suppress evidence pursuant to Penal Code section 1538.5.
Hearing on Discovery and Suppression Motions
On November 14, 2006, an evidentiary hearing was held on defendant’s motions. Officer Carley testified that on August 20, 2004, he, along with Officers McGrady and Ackemann, were investigating a complaint of a marijuana violation. From the driveway of the house next to defendant’s on the north side, Carley could smell the odor of fresh marijuana wafting from open windows in defendant’s house. From the end of that driveway, he could also see through the window of defendant’s house into his backyard, where Carley spied a marijuana plant.
Officer Carley knocked on the front door of the house next door to defendant’s and made contact with Gita Wylder. He asked her for permission to enter her backyard. She gave her permission and opened the gate in the driveway that led to her backyard. He then went through the gate onto Ms. Wylder’s property and from her backyard saw marijuana plants in defendant’s backyard and on his deck.
After defendant was arrested, Officer Carley again contacted Ms. Wylder to get her permission to enter her backyard a second time so that he could take photographs of the marijuana plants from his initial vantage point, but this time Wylder refused to give him permission.
Carley contacted Officer Shaheen on the phone to obtain a search warrant because Shaheen is a narcotics detective. Shaheen was the affiant on the search warrant for the two residences at 321 and 371 South 13th Streets. Certified copies of the search warrant, the affidavit and the return were admitted into evidence as a collective exhibit.
Prior to obtaining the search warrant, Officers Carley, McGrady, and Ackemann went into the backyard of defendant’s home and climbed the stairs up to an upstairs deck. From the deck, Carley could see defendant inside the residence; he was on the phone. Defendant was “called out” of his house and detained in handcuffs. When the police took defendant into custody they had their guns drawn but the guns “weren’t pointed at him.” The officers then entered 371 South 13th Street “to save destruction of evidence [¶] … [¶] that would be consistent with cultivation of possession for sale of marijuana,” to freeze the property, and “[t]o make sure there were no bad guys in there destroying evidence.” Carley had no indication that there were other persons present in that residence.
The defense called two witnesses, Gita Wylder and Shari Lynn Greenberger.
On August 20, 2004, Gita Wylder lived at 383 South 13th Street in San Jose. She was waiting outside of her house for a television repairman to arrive when she noticed two police cars patrolling the street. She also saw police officers looking around the front and side yards of defendant’s house next door to hers and walking down her driveway that adjoins defendant’s side yard. There is a wrought iron gate four to five feet high “in the front of the house in the driveway.” Access to Ms. Wylder’s backyard is through that gate. Asked if she recalled opening the gate for a San Jose police officer, Ms. Wylder testified that she did not. She testified that she never gave the police permission to walk on her property. A red-haired officer asked her if he could he go into her backyard to take pictures and she said no. She was extremely surprised to learn that the reporting officer stated that she had personally given police permission to enter her property.
Officer Ackemann has red hair.
That same day, defendant called attorney Shari Lynn Greenberger in Las Vegas. He was extremely concerned and very upset. Defendant told her that police were trying to enter his house and asked her if he should open the door. As Ms. Greenberger was advising him, defendant said “[O]h my God, [O]h my God, they have a gun at my head.” She heard somebody say, “[J]ust shoot him.”
Prior to the testimony, defense counsel requested a continuation of the hearing to an additional date so that she could produce an expert witness who was very sick that day. According to defense counsel’s offer of proof, the expert was an indoor environmental engineer who had reviewed “a lot of the physical evidence in this case which consisted of commercial air filters that are charcoal based and exhaust fans that were set up at the home and he’s going to controvert Officer[] Carley’s representation that he smelled marijuana from one of the air vents in the residence.” At the conclusion of the testimony, defense counsel renewed her request and confirmed for the court that the witness’s testimony was relevant to Officer Carley’s credibility. The court reserved ruling on whether it would hear the witness until the conclusion of arguments by the attorneys. After argument, the court concluded that it did not need to hear the witness’s testimony and took the defense motions under submission.
On November 17, 2006, the court filed its written order. The court granted the motion to suppress evidence seized and observations made during the warrantless search of 321 South 13th Street, finding that “the police officer invaded the curtilage of the residence without a warrant.”
The court denied the motion to suppress evidence seized during the search of 371 South 13th Street. The court found that “the police did not invade the privacy rights of defendant where the officer observed the marijuana … to the south side of the residence, places where the officer lawfully could be or where the defendant has no ‘standing’ to challenge any intrusion.” The court specifically credited Officer Carley’s version of the factual dispute between him and Gita Wylder over whether she gave police consent to enter her yard. Thus, the court found that Gita Wylder initially gave police permission to enter her yard, and later withdrew her consent when the officers wanted to re-enter the yard to take pictures. Alternatively, the court found that defendant lacked the standing to object to a trespass of a third person’s property, citing In re Lance W. (1985) 37 Cal.3d 873.
The court denied defendant’s motion for discovery under Luttenberger. The court found that “defendant’s allegation that the citizen informant was really an amalgamation of stale information obtained from multiple sources is speculative and is insufficient to establish a prima facie showing required to merit an in camera hearing.”
The court denied defendant’s Franks motion to traverse the warrant. The court found that the evidence presented by the defense established that “1) The police officer’s observations of the three dead marijuana plants behind 321 S.13th Street should not have been part of the search warrant affidavit because the observation was the product of a Fourth Amendment violation; 2) The defendant’s neighbor objected to the police officers’ presence on her property, but apparently not before they had already made their observations of marijuana plants growing in the defendant’s backyard, and her objection was not mentioned in the search warrant affidavit; and 3) the officers entered the defendant’s residence through a rear sliding glass door and apprehended him with their guns drawn on the defendant (with one officer threatening to shoot the defendant), and that this information was also not included in the search warrant affidavit. [¶] However, even considering these omissions, there still remained, in the search warrant affidavit, the following facts: 1) An informant who pointed the finger of suspicion at the defendant as being a cultivator of marijuana; 2) An officer’s observation, from the driveway, of a marijuana plant growing in the defendant’s backyard at 371 S. 13th Street; and 3) The officers’ subsequent observation of a total of seven mature marijuana plants growing in the defendant’s backyard at 371 S. 13th Street. [¶] The defendant has failed to impugn the viability of these factual assertions in the affidavit supporting the search warrant, but they provided ample probable cause for the issuance of the search warrant. Even considering the omissions, they did not alter the facts relevant to the finding of probable cause, and sufficient evidence remains to justify the warrant’s issuance.”
The court also stated that “[f]or the purposes of analyzing the motion to suppress and the sufficiency of the affidavit to support the search warrant” the court “deliberately ignore[d]” Officer Carley’s testimony that he smelled marijuana coming from a basement vent. The court indicated that it did so because defendant offered to present expert testimony to discredit Officer Carley on this point.
DISCUSSION
Warrantless Search
The main thrust of defendant’s argument is that the warrantless search of defendant’s residence, following his arrest at gunpoint during a telephone conversation with his attorney, violated his privacy rights under the Fourth Amendment. “If Mr. Bower’s privacy rights were not violated by a team of police officers swarming all over his property, invading his backyard, running up the stairs to the deck at the back of his residence, and forcibly entering his home at gunpoint, threatening to shoot him as they took him into custody, then the Fourth Amendment should only be taught in history class.” Relying on this court’s opinion in People v. Ormonde (2006) 143 Cal.App.4th 282, he argues that the intrusion was not justified by exigent circumstances or as a “protective sweep.”
We apply the following well-established standard of appellate review to a trial court’s ruling on a motion to suppress. “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
No evidence was seized during the warrantless search. Nor were any of the observations made by police officers during the warrantless search recited in the warrant affidavit. The warrantless search was not mentioned in the affidavit. Thus, it played no part in the magistrate’s probable cause determination. Nevertheless, defendant maintains that the ammunition seized as a result of the search conducted pursuant to the search warrant should be suppressed as “ ‘fruit of the poisonous tree.’ ” (Wong Sun v. United States (1963) 371 U.S. 471, 488.) Defendant acknowledges that “not all evidence seized after an illegal arrest or detention must be suppressed” and cites the correct inquiry: “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Ibid.)
To answer that question, we need not determine whether the officers’ warrantless search of defendant’s residence was justified by exigent circumstances or as a protective sweep. Assuming arguendo the warrantless search was illegal, we consider “ ‘ “whether the illegality has become so attenuated so as to dissipate the taint.” ’ Relevant factors in this attenuation analysis ‘include the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct.’ ” (People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1142-1143, fns. omitted, quoting from People v. Boyer (2006) 38 Cal.4th 412, 448; see also Brown v. Illinois (1975) 422 U.S. 590, 603-604.) “The concept of purging the taint ‘attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.’ ” (Rodriguez, at p. 1142, fn. omitted.)
In arguing that the taint of illegality was not attenuated in this case, defendant relies on the fact that the ultimate search was temporally related to the presumably unlawful trespasses and entry, and that the offending Officer Carley relayed his information to Officer Shaheen, the affiant who sought the warrant. He also argues that “[t]here were no intervening circumstances relevant to the attenuation analysis” and that “the ‘flagrancy of the official misconduct’ here would arguably dictate suppression even without” any other factors. We disagree.
Although the warrantless search occurred on the same day that the search warrant was served, and thus occurred close in time to the search conducted pursuant to the warrant, that temporal proximity does not trump the issuance of a search warrant based on an affidavit that in no way depended on the warrantless search. Assuming defendant is correct that Officer Shaheen learned illicitly-obtained information from Officer Carley, he scrupulously avoided including any such information in the affidavit. We agree with the trial court that, even excluding evidence of the three dead marijuana plants at 321 South 13th Street, and including evidence that Wylder objected to the officers’ presence in her backyard and that the police detained defendant at gunpoint, the affidavit provided ample probable cause to obtain a search warrant for defendant’s residence.
In our view, any taint was attenuated by the issuance of the search warrant. Even assuming defendant was illegally detained at gunpoint, and that the police conducted a warrantless search of defendant’s residence without justification, we conclude that misconduct by the officers at the scene was not so flagrant as to overcome the search warrant. Suppression of evidence here would not serve the purposes of the exclusionary rule, especially where the affiant did not participate in the detention or warrantless search. We find that the issuance of the search warrant based on Officer Shaheeen’s affidavit, which contained no information derived from defendant’s detention or the prior search of defendant’s house by Officers Carley, Ackemann and McCready, constituted an intervening act which purged the taint of any presumed illegality. We therefore reject defendant’s contention that his suppression motion should have been granted.
Discovery Regarding Concerned Citizen
Defendant contends that the trial court “erred in refusing to permit testimony from Lori Leonard, another neighbor of Mr. Bower’s, that counsel argued was relevant and highly germane with respect to the Luttenberger motion and the motion to suppress.” According to defense counsel’s offer of proof, Ms. Leonard would have testified that “contrary to the police report and the search warrant affidavit, she did not contact the San Jose Police Department, rather Officer Carley … contacted her…. [S]he told him about an observation that she had made 18 months prior … that had to do with a marijuana plant observed at … 321 South 13th Street. That was the residence that the officers were set to investigate. There were no marijuana plants inside that residence.” He appears to argue that if the court had heard the live testimony, it would have granted the Luttenberger motion for discovery of information relating to the concerned citizen informant “who pointed the finger of suspicion at the defendant as being a cultivator of marijuana.” He recites the allegations that he made to the trial court and concludes his argument by asserting that “at a minimum the court erred in not conducting the requested in camera hearing, and also erred in refusing to grant a brief evidentiary hearing with the person that Mr. Bower proffered was, in fact, the ‘concerned citizen.’ ” We interpret defendant’s argument as an attack on the trial court’s denial of his motion for discovery under Luttenberger.
a. Relevant Legal Principles
When a defendant believes that the affidavit supporting a search warrant contains material misrepresentations or omissions, he may request a Franks evidentiary hearing to traverse the affidavit. (Franks, supra, 438 U.S. 154.) “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” (Id. at pp. 171-172, fn. omitted, italics added.)
In Luttenberger, our Supreme Court recognized that “[b]ecause Franks, supra, 438 U.S. 154, was not a confidential informant case, it did not reach the issue of how a defendant could amass the required preliminary showing of material misrepresentations when faced with a confidential informant. Without access to information regarding an unidentified informant, a defendant would be seriously handicapped in his attempt to obtain an evidentiary hearing. We do not believe that by its formulation of the preliminary showing, the Franks court intended effectively to bar challenges to warrant affidavits based on confidential informants’ tips.” (Luttenberger, supra, 50 Cal.3d at p. 18.) In Luttenberger, the Court fashioned a detailed set of rules to govern discovery of information relating to misstatements or omissions in a search warrant affidavit that relies on a confidential informant for its probable cause showing. The Luttenberger court held: “The decision whether to convene an in camera examination or to order discovery will remain a matter within the trial court’s discretion. [Citations.] In making those determinations, the trial courts should be guided by the following principles. [¶] . . . [B]efore an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished. . . . [¶] [T]he motion … should include affidavits supporting defendant’s assertions of misstatements or omissions in the warrant affidavit. Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it. Although it is true that in cases involving confidential informants the defendant may be hindered in providing such specifics, we emphasize that a ‘conclusionary’ statement that he needs the information will not suffice to entitle him to obtain an in camera hearing and portions of the police background materials on the confidential informant. [¶] … [¶] For purposes of obtaining discovery, a defendant need not show that the alleged inaccuracies of the affidavit resulted from the affiant’s bad faith. Under Franks, before a defendant is entitled to an evidentiary veracity hearing, he must make a substantial showing that the affiant made false statements ‘knowingly and intentionally or with reckless disregard for the truth.’ ([Franks, supra,] 438 U.S. at p. 155.) For present discovery purposes, casting a reasonable doubt on the truthfulness of statements made in the affidavit will suffice, regardless of the defendant’s ability to show bad faith or trace the inaccuracy directly to misrepresentations by the affiant. [¶] To obtain an in camera hearing, however, the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination…. [M]ateriality is evaluated by the test of Illinois v. Gates (1983) 462 U.S. 213, which looks to the totality of the circumstances in determining whether a warrant affidavit establishes good cause for a search. [Citation.] After its in camera examination of the materials requested by the defendant, the court may then order production of only those documents that are relevant to the material inaccuracies asserted by the defendant. [¶] Materiality will depend in part on how vital the information attributed to the unnamed sources is to a showing of probable cause. [Citation.] The more detailed corroborative facts the affidavit provides, the less material any inaccuracy relating to the informant’s reliability or the informant’s statements may become. If the information allegedly omitted or misstated is merely cumulative, it is not material. [Citations.] [¶] Once this preliminary showing is made, the trial court should determine, in its in camera examination of the police records specified by the defendant, whether the defendant’s allegations of material misrepresentations or omissions are supported by the requested materials. If the trial court decides the documents do not support defendant’s charges of misrepresentation, the court should report only this conclusion to the defendant, and should not order production of any of the reviewed materials. [Citations] This procedure will assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants. [¶] If, on the other hand, the court finds the requested documents contain information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, then it should order disclosure of the documents to the defendant. Before doing so, the court must of course excise all information that could reveal the informant’s identity. In light of the absolute privilege protecting the informant’s identity when the informant’s tip goes only to probable cause (Evid. Code, § 1042, subd. (b)), this excision must be very carefully done, to avoid any chance of unintentionally revealing any identifying evidence to the defendant. The excised portions of the materials should be preserved for purposes of appellate review.” (Luttenberger, supra, 50 Cal.3d at pp. 21 -24, italics added.)
b. Analysis
The trial court denied defendant’s Luttenberger motion for discovery of information related to the confidential citizen informant, stating: “The defendant’s showing and offer of proof rested ‘entirely on conclusory assertions unsupported by any other evidence.’ (People v. Duval (1990) 221 Cal.App.3d 1105, [1]115.) The defendant’s allegation that the citizen informant was really an amalgamation of stale information obtained from multiple sources is speculative and is insufficient to establish a prima facie showing required to merit an in camera hearing.” We review the court ruling for abuse of discretion. (Luttenberger, supra, 50 Cal.3d at p. 21.)
Here, defendant’s proffered showing was deficient on two counts. It did not “cast[] some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the information furnished.” (People v. Duval, supra, 221 Cal.App.3d at p. 1115, citing Luttenberger, supra, 50 Cal.3d at p. 22.) It also did not relate to a material misstatement or omission by the affiant; that is, it did not undermine any statement in the affidavit that was vital to the probable cause determination.
The affidavit stated that a concerned citizen contacted Officer Carley within 10 days of the request for a warrant – i.e., between August 10 and August 20 – and told him that in June of 2004 he or she had observed marijuana plants growing inside 321 South 13th Street by looking through an exterior window; that the house appeared to be vacant; and that defendant, who lived at 371 South 13th Street, was its caretaker. With respect to this information, defendant made the following offers of proof: (1) Lori Leonard, one of defendant’s neighbors, did not contact Officer Carley (as stated in the affidavit) but rather was contacted by him, and she told him that 18 months before the August 20, 2004 search she had seen a marijuana plant at 321 South 13th Street; (2) Defendant’s declaration that the concerned citizen “could not have seen marijuana plants by merely looking through an ‘exterior window’ at 321 South 13th Street”; (3) counsel’s assertion that there were no marijuana plants in that residence; and (4) defendant’s declaration that he believed the concerned citizen was “a neighbor with a history of trying to convince my family to sell the residence to her, and whom I believe to have more interaction with law enforcement than is relayed in the affidavit.”
Defendant also alleged in support of his Luttenberger motion that (5) Gita Wylder would testify that she did not give police permission to enter her property and (6) contrary to the affiant’s representation in the affidavit for the search warrant that the officers did not know Mr. Bower’s identity when they called him out of his home, the police report stated that the police “had already run Mr. Bower’s record” when they detained him and made a warrantless entry of his home at gun point.
As to Ms. Leonard’s proposed testimony, the offer of proof did not cast doubt on the existence of a “concerned citizen.” It also failed to establish that Lori Leonard was the “concerned citizen” or that the information she gave was misreported in the affidavit. For example, the offer of proof did not state when Ms. Leonard had spoken to Officer Carley. The offer of proof did not even include an admission that Ms. Leonard had had more than one contact with Officer Carley or was the person who had unsuccessfully tried to buy the house from defendant’s family. The offer of proof relating to Ms. Leonard’s proposed testimony did not support the inference that Officer Carley had lied to Officer Shaheen about what the concerned citizen told him, or dispel the possibility that the concerned citizen had lied to Officer Carley about when he or she had seen marijuana plants at 321 South 13th Street, where he or she had seen them (inside) or how he or she had seen them (through an exterior window). At most, the offer of proof established that at some point in time Officer Carley had contacted Ms. Leonard and she had provided additional information about earlier cultivation of marijuana at 321 South Street, thus corroborating the concerned citizen’s tip.
Neither Gita Wylder’s testimony, nor the discrepancy between the affidavit and the police report, advanced defendant’s Luttenberger motion for discovery of information relating to the concerned citizen informant. Ms. Wylder’s testimony did not cast any doubt on the existence of the concerned citizen informant, or on the truthfulness of the affiant’s report of information received from the informant for the simple reason that it did not relate to the concerned citizen’s tip at all and shed no light on it. Similarly, the discrepancy between the affidavit and the police report on the question whether police knew defendant’s identity when they detained him has no connection or relevance to the existence of the concerned citizen or the truthfulness of affiant’s report regarding the concerned citizen.
This leaves defendant’s averment that the concerned citizen could not have seen marijuana plants at 321 South 13th Street by looking through an exterior window. Even if true, this assertion does not cast doubt on the existence of the concerned citizen, or on the truthfulness of Officer Shaheen’s (or Officer Carley’s) report of what the concerned citizen said.
Finally, having suppressed evidence of Officer Carley’s observation of the dead marijuana plants at 321 South 13th Street, the trial court did not consider any evidence about 321 South 13th Street in evaluating the affidavit’s showing of probable cause. The court considered only that the concerned citizen pointed the finger of suspicion at defendant. In our view, even this consideration was not material to the probable cause determination. Officer Carley could have been on South 13th Street for any reason or no reason at all and still have made the visual and olfactory observations of marijuana cultivation in defendant’s yard and on his deck that established probable cause to obtain a search warrant.
In short, because defendant’s showing did not cast some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the information furnished, and because the citizen’s tip was not material to the probable cause determination, defendant was not entitled to discovery under Luttenberger. The trial court did not abuse its discretion in denying defendant’s discovery motion.
CONCLUSION
The trial court did not err in denying defendant’s suppression motion, because the ammunition seized during the search pursuant to the warrant was not the fruit of the prior warrantless search. The trial court did not err in denying defendant’s Luttenberger motion because defendant’s showing did not establish that the concerned citizen’s tip was material to probable cause showing in the affidavit for the search warrant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.