Opinion
G057046
03-03-2020
THE PEOPLE, Plaintiff and Respondent, v. MARTIN GUILLERMO NAVARRO, Defendant and Appellant.
Michael Ian Garrey for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that our opinion filed on March 3, 2020 be modified as follows:
1. At the end of the last full paragraph on page 12 after the sentence ending "a particular location to be searched," add as footnote 2 the following footnote:
We recognize People v. MacAvoy (1984) 162 Cal.App.3d 746, 755-758 requires an affidavit to be incorporated by reference in the warrant, and to be present at the scene at the time of the search, before the affidavit can be used to cure a defect in the warrant. These requirements are necessary to ensure "both the searcher and those who suffered the search on notice of [the warrant's] permissible scope" at the time of the search. (Id. at p. 758.) Both these requirements were satisfied in this case. Here, the affidavit was incorporated by reference on the face of the warrant, and it was written and printed at the scene before the search. Plus, unlike the warrant in MacAvoy, the warrant in this case itself provided notice of the permissible scope of the search, because the apartment C language was in the warrant at the time of the search. Thus, MacAvoy is distinguishable.
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18NF0666) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeff Ferguson, Lance W. Jensen, and Michael J. Cassidy, Judges. Affirmed. Michael Ian Garrey for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Martin Guillermo Navarro pleaded guilty to two counts of possession of narcotics for sale (Health & Saf. Code, §§ 11351 & 11378). The evidence against him was seized pursuant to a search warrant based in part on information provided by a confidential informant. However, before obtaining the warrant, law enforcement stopped Navarro, conducted a warrantless search, and detained him while obtaining the warrant. When the warrant was signed, the magistrate ordered the portion of the affidavit related to the confidential informant be sealed pursuant to Evidence Code section 1042.
All statutory references are to the Evidence Code unless otherwise indicated. --------
Navarro filed a motion to unseal the affidavit. The court conducted an in camera hearing pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) and denied the motion to unseal. Navarro also filed a motion to suppress evidence and to quash and traverse the warrant pursuant to Penal Code section 1538.5. During the hearing on the motion to suppress, the court did not allow Navarro to ask questions regarding the contents of the sealed portion of the affidavit. The court determined that any information obtained from the warrantless search should be excised from the affidavit, but concluded the affidavit still established probable cause and denied the motion to suppress.
Navarro filed a motion to dismiss pursuant to Penal Code section 995 (995 Motion) arguing he was denied the rights of due process and effective assistance of counsel at the suppression hearing. The 995 Motion was denied. Navarro then filed a second motion to unseal the affidavit and a second motion to suppress pursuant to Penal Code section 1538.5. Both motions were denied. Navarro appeals the denials of both motions to unseal the affidavit, both motions to suppress, and the 995 Motion.
The central argument put forth by Navarro is the initial warrantless search negates the confidentiality privileges under Hobbs and section 1042, subdivision (b). We disagree and therefore affirm.
FACTS
The Combined Preliminary Hearing, First Motion to Unseal Affidavit and First Motion to Suppress
Before hearing testimony, the court conducted a hearing regarding Navarro's first motion to unseal the confidential portion of the affidavit. The court conducted the required in camera hearing and ruled there was no indication that the affidavit contained any false or misleading statements and denied the motion.
Orange County Sheriff's Deputies Martin Beltran and Ben Covington then testified that on September 7, 2017 at approximately 1:00 p.m., members of a narcotics task force were conducting surveillance on an apartment building at 1048 Las Lomas Street in La Habra. The building had four apartment units and four unmarked garages attached to it. There were also marked parking stalls next to the building.
A gold Honda Pilot that was being investigated arrived and parked in one of the garages. There were two men in the Honda. The garage door closed after the Honda parked inside. Before the garage door closed, Beltran was able to see the garage did not appear to have any interior doors that exited into the apartment building. After an hour, the Honda left with the same two men inside it. Neither man exited through the garage door during the hour the Honda was in the garage.
Approximately 15 to 20 minutes after the Honda left, a female parked in the garage to the left of the one the Honda had used, and went to apartment D. Later, another person parked in the garage to the right of the one used by the Honda and went to apartment B. Both people exited those garages through the garage doors.
While he was watching the garages, Beltran opened his laptop to the face page of a search warrant. He intended to begin writing an application for a search warrant, but things related to the investigation continually interrupted him.
Around 3:00 p.m., a silver Ford Escape arrived and parked in the marked parking stall for apartment C. A few hours after parking, the Ford backed out of the spot and drove into the garage that had been used by the Honda. After the Ford pulled in, the garage door closed before anyone exited the garage. After 15 to 20 minutes, the garage door opened and the Ford began to back out.
Before the Ford could exit the garage, Beltran pulled his car directly behind it. Beltran and Covington approached the Ford with their guns drawn. Covington entered the garage and made contact with the driver Navarro. Covington ordered Navarro out of the car, walked him out to Beltran, and reentered the garage to conduct a protective sweep. Beltran asked Navarro where he lived and Navarro said apartment C. After exiting the garage, Covington went back in a third time to get Navarro's apartment keys out of the Ford. During one of his trips into the garage, Covington saw four packages that looked like narcotics.
Beltran wrote a search warrant for apartment C, any garages "located thereon," and the Ford. At some point before the warrant was written, Covington told Beltran about the packages he had seen in the garage. Beltran did not mention Covington's observations in the search warrant affidavit. It took Beltran five to six hours to find a judge to review and sign the warrant. Beltran explained the efforts he made to locate a judge.
As soon as the warrant was signed, Beltran called Covington and told him he could search the Ford. Covington found packages containing narcotics in both the garage and the Ford. The parties stipulated the packages found in the Ford weighed 10 kilograms and contained a "substance containing cocaine," and the packages in the garage weighed 1 kilogram and contained a "substance containing methamphetamine."
During cross-examination by Navarro's counsel, the court sustained an objection to a question about whether members of the investigation team had followed the Honda to the Las Lomas apartments. Navarro's counsel argued the question would lead into a line of questions related to independent source considerations for the search warrant. The court ruled the line of questioning would not be allowed as to the suppression hearing because it went to the contents of the sealed affidavit. The court also ruled the questions were not relevant to the preliminary hearing.
The court denied Navarro's first motion to suppress and held him to answer on all charges. In considering the validity of the warrant, the court excised Navarro's statement about living in apartment C and concluded the warrant and affidavit contained no misleading statements. The court found the deputies had an independent source for seeking the warrant apart from the warrantless search. The court used the information in the sealed affidavit in determining the warrant had probable cause. Near the end of its ruling, the court also concluded the information in the sealed affidavit provided justification for the warrantless stop and search of Navarro.
The Second Motion to Unseal the Affidavit and Second Motion to Suppress
Before ruling on the second motion to unseal the affidavit, the court conducted another in camera hearing under Hobbs that included questions submitted by Navarro's counsel. The court ruled the affidavit did not contain any material misrepresentations or information pertaining to the guilt or innocence of Navarro and denied the second motion to unseal.
During the second motion to suppress hearing, Navarro called Beltran to testify as to issues related to an independent source for the search warrant. Beltran invoked his privilege pursuant to sections 1040 and 1042 when he was asked about whether the investigation team had been following the Honda, or had any information about the Honda, before it arrived at the Las Lomas apartments.
The court conducted a separate in camera hearing as required and allowed Beltran to claim the privilege. The court also allowed Beltran to claim the privilege as to questions about whether the Honda was stopped and searched after it left the Las Lomas apartments and whether Beltran had any knowledge about drugs in the garage before he began writing his warrant.
However, Beltran testified he did not know anything about Navarro or the Ford prior to stopping them. He said he did not include Covington's observations about the packages in the garage in the search warrant because he did not think they were necessary.
The court denied Navarro's request to make an adverse ruling against the prosecution pursuant to section 1042, subdivision (a) and denied the second motion to suppress. The court ruled the deputies had an independent source to obtain a warrant apart from the warrantless search. The court concluded the warrant had probable cause to search the garage after excising all references to apartment C.
DISCUSSION
1. Both Motions to Unseal the Affidavit Were Properly Denied.
Navarro argues his motions to unseal the affidavit were improperly denied. He contends that because the police conducted an unlawful warrantless search before seeking a search warrant they could not invoke section 1042, subdivision (b) privileges and the court should not have followed the procedures outlined in Hobbs, supra, 7 Cal.4th 948 to seal the affidavit. We are not persuaded.
The privilege to refuse to disclose the identity of an informant and the information supplied by the informant is codified in sections 1040, 1041 and 1042. Section 1040 allows a police officer to refuse to disclose information gained during an investigation when the "necessity for preserving the confidentiality of the information . . . outweighs the necessity for disclosure in the interest of justice[.]" (§ 1040, subd. (b)(2).) Similarly, section 1041 allows a police officer to refuse to disclose the identity of an informer provided "the necessity for preserving the confidentiality of his or her identity outweighs the necessity for disclosure in the interest of justice." (§ 1041, subd. (a)(2).)
When the privileges in sections 1040 or 1041 are invoked in a criminal proceeding, section 1042, subdivision (a) requires the court to make an adverse finding against the prosecution. Section 1042, subdivision (b) creates the exception that "[n]otwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it."
In Hobbs, the California Supreme Court sought to resolve the tension between the prosecution's right to protect the identities of confidential informants under section 1042, subdivision (b) and the defendant's right to access information that could be used to challenge the legality of a search warrant. (Hobbs, supra, 7 Cal.4th at 957.) Specifically, the court addressed the situation where the prosecution uses the privilege to seal most of the factual showing of probable cause in the search warrant affidavit. (Id. at p. 964.) The court held that faced with a motion to quash or traverse a warrant where the prosecution is seeking to seal the majority of the affidavit, the trial court must first hold an in camera hearing. (Id. at p. 972.) The trial court must then decide if the privileged information must be sealed in whole or in part. (Ibid.) "[A]ll or any part of a search warrant affidavit may be sealed if necessary to implement the [section 1042] privilege and protect the identity of the confidential informant." (Id. at p. 971)
Navarro argues the exception in section 1042, subdivision (b), and the procedures outlined in Hobbs, do not apply when law enforcement conducts an unlawful warrantless search before seeking a search warrant. Not so.
The plain language of section 1042, subdivision (b) allows the privilege to be invoked when the search was made pursuant to a warrant that was valid on its face. And, "[w]hen the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citation.] The plain language of the statute establishes what was intended by the Legislature." (People v. Fuhrman (1997) 16 Cal.4th 930, 937.)
In order to be valid on its face, a warrant must contain probable cause supported by an affidavit and describe with proper specificity the person or place to be searched. (Pen. Code, § 1525.) Probable cause exists for a search warrant when "there is a fair probability that contraband or evidence of a crime will be found in a particular place" to be searched. (Illinois v. Gates (1983) 462 U.S. 213, 238.) The instant warrant met these requirements and was therefore valid on its face after the information from the warrantless search was excised.
Navarro offers no on-point authority to support his argument that Hobbs does not apply when a warrantless search precedes the warrant. He cites People v. Machupa (1994) 7 Cal.4th 614 (Machupa), but that case is distinguishable.
In Machupa, our Supreme Court held the "'good faith'" exception does not validate a search when an unlawful warrantless search was the basis for a search warrant. (Machupa, supra, 7 Cal.4th at p. 617.) The police officers in Machupa conducted a warrantless, nonconsensual search of the defendant's house and saw a large amount of marijuana. The officers then obtained a warrant based on an affidavit saying the defendant invited them into the house. When the warrant was challenged in court, the prosecution argued the officers could rely on the "good faith" exception. The court rejected this argument, reasoning the officers could not rely on the apparent validity of the warrant when they supplied material misrepresentations that were necessary for the warrant to be signed. (Id. at p. 628.)
Machupa does not address the facts before us. In Machupa, the warrant did not contain probable cause once the information from the warrantless search was excised. In contrast the warrant in this case did contain probable cause without relying on any information from the warrantless search, as will be discussed in more detail below.
Additionally, the policy reasons underlying the privilege to keep informant information confidential are distinct from the policy reasons behind the "good faith" exception at issue in Machupa. The reasoning behind the "good faith" exception is the police should not be punished for serving a legally invalid warrant when they have a good faith belief they are serving a valid warrant. (Machupa, supra, 7 Cal.4th at 628.) However, police misconduct would be encouraged if the "good faith" exception applied when the police used their own illegal conduct as the basis for a warrant. (Ibid.)
In contrast, sections 1040 through 1042 were not put in place to protect the police, but to protect informants and the public interest in informants cooperating with the police. (Hobbs, supra, 7 Cal.4th at p. 958.) A rule that requires disclosure of the informant's identity due to police misconduct does not punish the police, but instead harms the informant and erodes the public interest it sought to protect.
Therefore, we conclude the procedures in Hobbs applied, the in camera hearings conducted by the trial judges in this case were proper, and both of Navarro's motions to unseal the affidavit were correctly denied. The trial judges each followed the proper procedures and made the proper findings the informant was not a material witness as to the issue of guilt and Navarro sought disclosure merely to attack probable cause. Moreover, our independent review of the sealed portions of the affidavit, which was made a part of the record on appeal, confirms the trial court rulings were correct. 2. Navarro Was Not Denied Substantial Rights.
Navarro contends the court erred by denying his 995 Motion, because he was denied due process and effective assistance of counsel when the court limited his cross-examination based upon the privileges in sections 1040 through 1042 during the combined preliminary hearing and first motion to suppress. He also contends the court denied him the right of a full hearing by relying on information contained in the sealed affidavit to support probable cause. But Navarro does not cite any authority that directly supports any of these contentions. Instead, he argues he should have been allowed to question about the contents of the sealed affidavit because an independent source inquiry was relevant during the suppression hearing. Once more we are not persuaded.
"The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." (Nix v. Williams (1984) 467 U.S. 431, 443.) As relevant to this case, an independent source inquiry is required when an unlawful warrantless search precedes the acquisition of a warrant. (People v. Weiss (1999) 20 Cal.4th 1073, 1077.) In such circumstances, the warrant remains valid if it contains probable cause for the search after any information related to the unlawful activity is removed. (Id. at p. 1078.) Additionally, the court must make a finding that no information gained from the illegal activity affected the police decision to seek a warrant. (Murray v. United States (1988) 487 U.S. 533, 540.)
Under section 1042, subdivision (b), the prosecution does not have to disclose the identity of the informant or official information in order to justify the legality of a search pursuant to a warrant that is valid on its face. An inquiry into whether there was an independent source for the warrant goes directly to whether the search itself was legal, it does not change the fact that the warrant was valid on its face. Navarro was permitted to submit questions for the court to ask during the in camera hearing, consistent with the procedures outlined in Hobbs. Navarro's cross-examination was only limited when he sought to elicit information that fell within the privilege of section 1042, subdivision (b). Therefore, we conclude his cross-examination was not improperly limited and he was not denied due process of law or effective assistance of counsel.
Navarro also argues he was denied the right to a full evidentiary hearing because the court relied on a sealed affidavit containing hearsay in its ruling. On this point Navarro cites People v. Johnson (2006) 38 Cal.4th 717 (Johnson). However, Johnson is not analogous to the case at hand.
In Johnson, the defendant filed a Penal Code section 1538.5 motion to suppress evidence that resulted from a warrantless search. At the hearing on the motion, the prosecution called no witnesses and sought to justify the search solely through an affidavit. (Johnson, supra, 38 Cal.4th at p. 722.) The California Supreme Court granted review to determine "whether at a Penal Code section 1538.5 hearing the prosecution may meet its burden of proving justification for a warrantless search and seizure by presenting an affidavit of the investigating officer in lieu of the officer's live testimony." (Id. at p. 723.) After analyzing the language of section 1538.5, the court concluded the parties must "present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the magistrate or judge presiding at the hearing, rather than by means of written affidavits." (Johnson, at p. 726.)
Unlike the warrantless search at issue in Johnson, the instant case involved a warrant and a confidential informant. More importantly, the prosecution did not seek to present an affidavit in lieu of live testimony. Here, the prosecution presented two live witnesses whose demeanor and credibility could be evaluated by the magistrate and only used the affidavit within the limits allowed by section 1042. So Johnson is simply inapt.
Navarro also argues U.S. v. Siciliano (1st Cir. 2009) 578 F.3d 61 displays the "type of inquiry that was not allowed in the present case." But Siciliano is equally inapt. In Siciliano, the trial court determined the police did not have an independent motivation to seek a warrant following an illegal search. (Id. at p. 67.) Unlike the instant case, there was no confidential informant or sealed affidavit in Siciliano. Further, the trial court did not conduct a different inquiry than the courts here, it merely came to a different conclusion with a different set of facts.
In sum, Navarro was not denied substantial rights during either suppression hearing and his 995 Motion was properly denied. 3. Both Motions to Suppress Were Properly Denied.
Navarro argues the initial warrantless searches into the garage were unlawful, any information gained from those searches must be excised from the warrant, and the warrant lacks probable cause without the excised information. We agree the initial warrantless searches were unlawful and their fruits must be excised, but we conclude the warrant was supported by probable cause without the excised information.
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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.)
The People argue the warrantless stop and entries into the garage were justified by exigent circumstances. We do not agree. While the deputies had observed the unusual activities of multiple drivers entering the garage, closing the garage door behind them, and appearing to remain inside the garage for an extended period of time, there was no specific indicia of criminal activity to support the stop of the Ford. Further, Covington's subsequent entries into the garage after the initial detention were unlawful as there was no evidence presented to support a protective sweep. (See People v. Cellis (2004) 33 Cal.4th 667, 676-677 [protective sweep of house not justified when the officers had no information that there was anyone else in the house].)
Consequently, as discussed above, the warrant must be evaluated without any of the information gained from the unlawful activity—specifically, without Navarro's statement that he lived in apartment C. And Navarro argues once the language related to apartment C is excised the search warrant fails to describe with sufficient particularity which garage is to be searched. Once more we disagree.
A warrant must "particularly describ[e] the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.) But a warrant that is potentially overbroad is still valid if the documents attached with the warrant properly describe a particular location to be searched. (See People v. Peck (1974) 38 Cal.App.3d 993, 1000; People v. Moore (1973) 31 Cal.App.3d 919, 925; People v. Grossman (1971) 19 Cal.App.3d 8, 12.)
Here, Beltran's attached affidavit described the garage as a single car garage located at 1048 Las Lomas Drive, and further specified the garage was the "second garage south of Las Lomas Drive and believed to be associated to Apt. C." After excising the reference to apartment C, the description still described a specific garage at 1048 Las Lomas Drive. Further, within the full context of the affidavit it was clear the garage to be searched was the garage where the Ford was parked when it was stopped.
We likewise reject Navarro's contention the evidence tainted the warrant to such a degree the trial judges could not make proper independent source determinations. Each trial judge made a factual finding that Beltran's decision to seek a warrant was not affected by the warrantless search. These findings were supported by substantial evidence testified to in open court and contained in the sealed portion of the affidavit. Beltran testified he attempted to begin writing the warrant before the warrantless stop occurred. This coupled with the information in the sealed portion of the affidavit provides sufficient evidence to conclude the deputies would have sought a search warrant independently of the warrantless stop.
Therefore, like the courts below, we conclude the warrant contains probable cause even after the information gained from the warrantless search is excised. As noted above, we reviewed the sealed portion of the affidavit as part of the record of appeal: It contains probable cause to support the search of both the car and garage.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.