Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-521150
Kline, P.J.
Niles Urry (appellant) was convicted, pursuant to a plea agreement, of cultivation of marijuana. On appeal, appellant contends his motion to suppress evidence was improperly denied because police illegally entered the curtilage of his residence, the warrant to search his property was based on stale information, smell alone was an insufficient basis for establishing probable cause for issuance of the warrant, and the officers did not rely on the warrant in good faith. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by felony complaint with one count of cultivation of marijuana (Health & Saf. Code, § 11358), and one count of possession for sale of marijuana (§ 11359).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
After the trial court denied his motion to suppress evidence, appellant pleaded no contest to one count of cultivation of marijuana.
On February 9, 2009, the trial court placed appellant on probation for three years.
On February 17, 2009, appellant filed a notice of appeal.
FACTUAL BACKGROUND
I. The Penal Code Section 1538.5 Hearing
Petaluma Police Detective John Silva, an expert on possession for sale and recognition of marijuana, testified that, on July 9, 2007, he authored a search warrant application for a single property in Sebastopol with the addresses of 331, 481, and 477 Raspberry Lane. Silva’s partner in this operation, Detective Andrew Cash, had informed Silva on about July 6, 2007 that “there was possibly an indoor cultivation operation taking place at that location, ” a 10-acre rural parcel with three structures on it, including a barn, a “granny unit, ” and a main residence. Cash said that about 18 months previously, a citizen informant had reported smelling marijuana at the barn. He also said that he had a current tip from a citizen who wanted to remain anonymous about “an indoor marijuana grow” at that location.
On July 6, 2007 at 4:00 a.m., Silva and Cash did a “low crawl” operation at the property. They used night vision goggles to assist them in seeing where they were going. Once on the property, the officers walked up a dirt road leading to the barn (at 331 Raspberry Lane), and walked around a gate that had no fence attached to it. They then started walking through a “wild lands” area of brown grass that was three to four feet tall until they came to some trees, which they used as cover. Silva saw no paths during their walk through the grass; nor did he see any barriers or “no trespassing” signs in the area. It did not appear that anyone had been in the area they had walked through within at least the last five or six months, given the height of the grass. The officers did not go past the trees, which were 35 to 40 yards from the barn.
Silva could see two roll-up doors in the front of the barn. There did not appear to be any lights on inside the barn, but he could hear the sounds of lights, ballasts, and fans. Silva also noticed the odor of marijuana and confirmed with Detective Cash and another officer that they smelled the odor as well. At that point, the officers left the property.
Silva had previously smelled marijuana from a distance of 35 to 40 yards on approximately 150 occasions, and on at least 140 occasions had been able to confirm that what he smelled was in fact marijuana. On the remaining 10 or so occasions, the marijuana was no longer there when he went to inspect it.
On July 10, 2007, four days after the low crawl operation, Silva returned to the property to serve a search warrant. The main residence (at 477 Raspberry Lane) had a fence around it with a locked gate and cars parked nearby. It was a three-level structure, and the surrounding area was landscaped and well-groomed, with an irrigation system installed. There were paths between the main residence and the “granny” unit (at 481 Raspberry Lane).
Detective Andrew Cash, an expert in possession for sale of marijuana and in the odor of marijuana, testified that he too participated in the “low crawl” operation on July 6, 2007 at the location known as 331, 477, and 481 Raspberry Lane, to “attempt to obtain odor from an indoor marijuana growing operation.” Detective Silva and a DEA agent also participated. They walked through a hilly field of waist-high grass toward the barn and stopped at a clump of trees that was 35 to 40 yards from the barn. When they got to the trees, Cash smelled marijuana, which is a distinct odor. Cash had smelled marijuana thousands of times before.
The officers did not go through any gates or over any fences to get to the trees. The area they walked through did not appear to have been maintained in any way, but was wild land. There was nothing at the barn that would indicate that someone was living there; there were no vehicles or maintained areas near it, and there were no paths between the barn and where they were standing. There was a cargo trailer behind the barn, but Cash did not see “any barbecues, any lawn chairs, kids pools or anything like that.” When he returned to serve the search warrant on July 10, 2007, Cash saw no paths between the barn and the main house. He saw a granny unit, which was about 140 yards away from the barn. He also saw a gate on the path to the barn, which he had not seen on July 6, because the officers had been walking through the grass.
Detective Cash explained that, 18 months before July 2007, he had received information from a citizen informant who believed marijuana was being cultivated on the property. At Cash’s request, Sergeant Gossett did a low crawl at the property, but “he was compromised and 18 months later we restarted the case.” Then, just prior to the low crawl on July 6, 2007, Cash recontacted the citizen informant to determine if any type of marijuana activity was currently taking place at the Raspberry Lane location. The citizen informant believed that marijuana was being cultivated on that property.
Cash testified that the affidavit for the search warrant stated generally that a citizen informant had given information about marijuana being cultivated on the property “within the past 18 months.” The affidavit was vague as to when, within those 18 months, the contact with the informant or informants had occurred.
II. The Search Warrant Affidavit
In the statement of probable cause for the search warrant, Detective Silva averred that “[w]ithin the past 18 months, ” Detective Cash had received information from a citizen wishing to remain anonymous that the Raspberry Lane property “possibly may have an indoor cannabis cultivation operation.” The “citizen(s) were not under arrest nor a suspect in any crime at the time he/she provided the aforementioned information to Detective Cash, ” but “stated that he/she provided the information because he/she wanted to help the police.”
Silva further stated that, within the past 18 months, Sergeant Steve Gossett conducted surveillance of the property but, just as he got near the barn and smelled the odor of marijuana, a vehicle drove up and Gossett ran to his patrol car. The vehicle then passed directly in front of Gossett, which led to the belief that the investigation could have been compromised.
Silva also mentioned the July 6, 2007 visit to the property, which he described as “approximately 10.0 acres with numerous structures and open field.” The three officers walked up a road, turned left at a “ ‘T’ intersection, ” and eventually entered a tree line approximately 35 to 40 yards to the left of the barn. All three officers “could hear a humming noise coming from the barn. This noise appeared to be consistent with the humming [noise] commonly made by the ballasts, lights, and fans used in indoor cannabis cultivation operations.” All three officers also smelled “the odor of marijuana coming from the barn.” A photograph of the property showed possible walk paths between the main structures and the barn, which suggested that people living in the main house frequented the barn on a regular basis.
Based on Detectives Silva and Cash’s experience, expertise, training, observations, and information received from fellow officers, they were of the opinion that cannabis plants were being grown on the property.
According to a police report regarding the incident, on the day the search warrant was executed, appellant told police that the marijuana on the property was his. He also said that he did not have a medical marijuana “recommendation, ” but that he planned to get one in the future due to various medical conditions. He said it was possible that his mother and brother, who lived on the property, had such a recommendation. 475 rooted growing marijuana plants and 44 non-rooted marijuana plants were found at the barn (331 Raspberry Lane), along with five to seven pounds of marijuana “bud shake.” Additional plants, processed marijuana, and paraphernalia were found at 477 and 481 Raspberry Lane. Based on the marijuana that was found and the statements made by appellant, he was arrested for cultivation of marijuana and possession of marijuana with intent to sell it.
DISCUSSION
Denial of the Motion to Suppress
Appellant contends the trial court erred when it denied his motion to suppress evidence, filed pursuant to Penal Code section 1538.5.
I. Trial Court Background
At the conclusion of the hearing on the motion to suppress evidence, the court stated that it accepted the prosecution’s argument that the officers were in an open field and not within the curtilage of the residence during the low crawl operation. Although it is not completely clear from the record, the court apparently decided to ignore the information received from a citizen informant within the past 18 months. It then deferred its decision as to whether the smell of marijuana and the sound “consistent with ... processing” was sufficient to support a warrant, pending further briefing by the parties on the subject of whether Proposition 215, enacted in 1996 as the Compassionate Use Act (CUA) (§ 11362.5), required the police to demonstrate that the marijuana was not part of a legal grow operation before obtaining a search warrant. Ultimately, the trial court denied the motion to suppress.
II. Legal Analysis
A. Alleged Invasion of the Curtilage of the Residence
Appellant contends the motion to suppress should have been granted because police illegally entered the curtilage of his residence during the low crawl operation on July 6, 2007.
In reviewing the denial of a motion to suppress, “we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
In U.S. v. Johnson (9th Cir. 2001) 256 F.3d 895, 909-913 (Johnson), the Ninth Circuit Court of Appeals held that a determination of curtilage must be reviewed de novo on appeal, rather than deferring to the trial court’s factual findings. Even were we to review this issue de novo, we would find no error.
The “curtilage” of a home is “ ‘the area immediately surrounding and associated with the home’ and ‘to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life[.]’.... [Citation.] The curtilage is thus afforded constitutional protection while ‘open fields’ are not. [Citation.]” (People v. Freeman (1990) 219 Cal.App.3d 894, 901, quoting Oliver v. United States (1984) 466 U.S. 170, 180.) “ ‘[T]he term “open fields” may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither “open” nor a “field” as those terms are used in common speech.’ [Citation.]” (United States v. Dunn (1987) 480 U.S. 294, 304 (Dunn).)
In Dunn, supra, 480 U.S. 294, law enforcement officials had information suggesting that large quantities of chemicals and equipment used to manufacture amphetamine and phenylacetone were located in one of the defendant’s barns on his 198-acre ranch property. Two barns were located 50 yards from a fence surrounding the defendant’s house and 60 yards from the house itself. (Id. at pp. 296-297, 302.) Law enforcement officials made a warrantless entry onto the defendant’s property and, standing about midway between the house and the barns, smelled the odor of phenylacetic acid coming from the direction of the barns. (Id. at p. 297.) The officers then crossed over three fences to look in one of the barns, where they observed what appeared to be a phenylacetone laboratory. (Id. at pp. 297-298.) The officers then departed, but returned twice more the next day to confirm the presence of the laboratory. (Id. at p. 298.)
In determining whether the officers had invaded the curtilage of the defendant’s home, the United States Supreme Court utilized the following four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. [Citations.]” (Dunn, supra, 480 U.S. at p. 301.) First, the court found that the substantial distance of the barn from the house (60 yards) did not support an inference that the barn should be treated as an adjunct of the house; second, there was a fence surrounding the house, which identified the land within the fence as “part and parcel of the house”; third, the information available to the officers indicated that “the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of [the defendant’s] home”; and fourth, although there were multiple fences between the road and the barn, those fences were not of the type designed to prevent people from observing inside the enclosed areas. (Id. at pp. 302-303.) The Supreme Court concluded that no constitutional violation had occurred when the officers stood “outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn’s open front.” (Id. at p. 304.)
In the present case, the evidence shows that the officers were even less intrusive than was the case in Dunn, in which the Supreme Court held that there was no invasion of the curtilage of the defendant’s home. First, the officers kept a distance of 35 to 40 yards from the barn, which was 140 yards from the granny unit, the nearest structure to the barn. Second, there was a fence with a locked gate surrounding the house alone, quite apart from the barn, which was some distance away. Third, the officers observed no paths in the grass through which they made their approach or among the clump of trees from which they observed the barn. Indeed, one officer described the area as “wild lands” of brown grass, three to four feet tall. Moreover, there was no indication that the barn was used for anything other than a marijuana grow operation, with no evidence of any sort of domestic activity in the vicinity. Fourth, there was no fence surrounding the barn itself, it was visible from the open fields on the property, and there were far fewer other impediments to approaching and observing the barn—such as barbed wire fences and “no trespassing” signs—in this case than in Dunn.
In his opening brief, appellant states that “the barn had been re-zoned and included a living quarter within it with windows located on the left-hand side, ” arguing that the barn should therefore be treated as a residence for purposes of assessing whether the officers improperly encroached on its curtilage. Because appellant provides neither support in the record, nor citation to legal authority for this proposition, we shall not address it. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 150.)
Appellant cites several Ninth Circuit and other federal appellate court cases in support of his contention that the officers in the present case unlawfully entered the curtilage of his residence. (See, e.g., Johnson, supra, 256 F.3d at p. 902 [noting that, in rural properties, natural boundaries such as thick trees or shrubberies may also indicate an area within curtilage of a home, and finding that a shed enclosed within residences’ fence and located 40 to 50 feet from house was within curtilage]; U.S. v. Furrow (9th Cir. 2000) 229 F.3d 805, 817, overruled on other grounds by Johnson, supra, 256 F.3d 895 [rural nature of premises supported finding that outbuildings, even though 100 feet away from home, were still within curtilage where they were “used for domestic purposes and the conduct of family affairs”]; U.S. v. Depew (9th Cir. 1993) 8 F.3d 1424, 1427-1428, overruled on other grounds by Johnson, supra, 256 F.3d 895 [area six feet from detached garage and 50 to 60 feet from defendant’s house, when considered with other factors, was within curtilage of residence]; U.S. v. Diehl (1st Cir. 2002) 276 F.3d 32, 40 [where personal use of area around house is obvious, fact that it is enclosed by trees rather than fence does not negate fact that it is within curtilage]; but see, e.g., U.S. v. Brady (9th Cir. 1993) 993 F.2d 177, 178-179, overruled on other grounds by Johnson, supra, 256 F.3d 895 [an outbuilding 45 feet from a home, segregated from home by a fence, used only for a marijuana grow operation, and highly visible from open field surrounding property was not within curtilage of home].)
The particular facts of the cases cited by appellant, however, distinguish them from the present one, which must be decided on its own distinct facts. (See Dunn, supra, 480 U.S. at p. 301.) Here, as previously discussed, the facts pointed to the grassy area and clump of trees from which the officers observed the barn as being outside the curtilage of appellant’s home. Moreover, the facts of the present case provide even less support for the argument that the curtilage was invaded than that rejected by the United States Supreme Court in the factually analogous case of Dunn. Therefore, appellant’s reliance on less similar lower federal court decisions is not persuasive.
Indeed, appellant’s summary of the facts supporting his argument—that the property was the last parcel on a dead end road in a rural area, with the barn and residence remotely located, with a long driveway and thick row of tress obstructing visibility of the property from the road, and with a no trespassing sign on a locked gate at the entrance to the property—demonstrate less compelling facts than those rejected in Dunn as not supporting a curtilage argument.
Accordingly, we conclude that there was no illegal entry into the curtilage of appellant’s home, and hence no Fourth Amendment violation, during the July 6, 2007 low crawl operation. (See People v. Hughes, supra, 27 Cal.4th at p. 327.)
B. The Basis for Establishing Probable Cause to Search
Appellant contends that the search warrant was based on stale information and that smell alone was an insufficient basis for establishing probable cause.
“On review, we apply the same standard which governed the trial court: the magistrate’s order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause. [Citation.] A reviewing court should give great deference to the magistrate’s determination of probable cause. [Citation.]” (People v. Fernandez (1989) 212 Cal.App.3d 984, 986.) We consider the totality of the circumstances to determine whether the information contained in the affidavit in support of the application for a search warrant establishes “a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for... conclud[ing]’ that probable cause existed. [Citation.]” (Illinois v. Gates (1983) 462 U.S. 213, 238-239.) Moreover, “[d]oubtful or marginal cases are to be resolved by the preference to be accorded to warrants. [Citation.]” (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)
In this case, the trial court ultimately ignored the allegedly stale tip from the citizen informant, and concluded that the smell of marijuana, coupled with the sounds of lights, ballasts, and fans demonstrated probable cause that the property was being used to cultivate marijuana, in violation of the law. We agree with the trial court that these facts alone were sufficient to provide probable cause for issuance of a search warrant in the circumstances of this case.
In the statement of probable cause, Silva wrote, “[w]ithin the past 18 months, ” Detective Cash had received information from a citizen informant that the property “possibly may have an indoor cannabis cultivation operation, ” which did not spell out that a citizen had stated a belief that a marijuana-growing operation existed on the property both 18 months previously and shortly before the July 6, 2007 low crawl. We need not decide whether this vague phrase caused the informant’s tip to be too stale to support issuance of the search warrant since, as just stated, we conclude that the smell of marijuana, along with the sounds of fans, ballasts, and lights were sufficient to demonstrate probable cause.
Appellant argues that the information available to the officers was as consistent with lawful cultivation and possession of marijuana, pursuant to the CUA and/or the Medial Marijuana Program Act (MMPA), as with illegal activity. According to appellant, after the passage of the MMPA, “[t]he mere fact that marijuana is being cultivated cannot, without more, create probable cause to suspect that a crime is being committed.” He asserts that the officers were therefore required to investigate further to ascertain that the suspected marijuana grow operation was illegal before attempting to obtain a warrant to search the property.
The CUA was approved by California voters in 1996 as Proposition 215, and is codified at section 11362.5. (See People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007 (Hochanadel).) Subdivision (d) of section 11362.5 provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”
In 2003, the California Legislature enacted the MMPA, effective January 1, 2004. (See Hochanadel, supra, 176 Cal.App.4th at p. 1007.) The express intent of the MMPA, which added sections 11362.5 through 11362.83, “was to ‘(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application of the [CUA] among the counties within the state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. [¶] (c) It is also the intent of the Legislature to address additional issues that were not included within the [CUA], and that must be resolved in order to promote the fair and orderly implementation of the [CUA].’ (Stats. 2003, ch. 875, § 1, [italics by Hochanadel court omitted].) The legislative history further states, ‘Nothing in [the MMPA] shall amend or change Proposition 215, nor prevent patients from providing a defense under Proposition 215 .... The limits set forth in [the MMPA] only serve to provide immunity from arrest for patients taking part in the voluntary ID card program, they do not change Section 11362.5 (Proposition 215)....’ (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 420 (2003-2004 Reg. Sess.) as amended Sept. 9, 2003. pp. 6-7, italics added.)” (Hochanadel, at pp. 1007-1008.)
The MMPA added, inter alia, section 11362.775, which provides: “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
Section 11362.77, subdivision (a), purported to limit the amount of marijuana a qualified patient or primary caregiver could possess under the MMPA to no more than eight ounces of dried marijuana and no more than six mature or 12 immature marijuana plants. Recently, in People v. Kelly (2010) 47 Cal.4th 1008, 1049, the California Supreme Court held: “To the extent section 11362.77 (together with its quantitative limitations) impermissibly amends the CUA [which guarantees that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition] by burdening a defense that would be available pursuant to that initiative statute, section 11362.77 is invalid under California Constitution, article II, section 10, subdivision (c).”
Both the CUA and MMPA establish exceptions to certain marijuana-related offenses, which must be raised and then proved as affirmative defenses by the defendant. (See, e.g., People v. Wright (2006) 40 Cal.4th 81, 85, 93-94; People v. Fisher (2002) 96 Cal.App.4th 1147, 1151-1152 (Fisher).)
In Fisher, supra, 96 Cal.App.4th 1147, 1149, the appellate court held that “law enforcement officers are not required to abandon a search for marijuana authorized by a search warrant when a resident of the premises to be searched produces documents that suggest he has a physician’s permission to possess the marijuana pursuant to the [CUA].” The court found that, once probable cause to search was established and a search warrant issued, the officers were entitled to search the premises, and it was for the defendant to subsequently raise any exceptions under the CUA as an affirmative defense: “Investigation of the truth and legal effect of defenses to criminal charges is what motions and trials are for; to hold otherwise would create disorder and confusion.” (Id. at p. 1152; compare County of Butte v. Superior Court (2009) 175 Cal.App.4th 729, 737 [in a civil action following police destruction of marijuana plants belonging to a qualified medical marijuana patient, appellate court distinguished Fisher and found that, in a situation in which there is no search warrant, an officer’s “consideration of probable cause [to search] must include the officer’s consideration of the individual’s status as a qualified medical marijuana patient”].)
The court did note that, “[w]hile perhaps there could be circumstances where law enforcement officers, at the time they execute a warrant, are confronted with facts that are so fundamentally different from those upon which the warrant was issued that they should seek further guidance from the court, this is not one of them.” (Fisher, supra, 96 Cal.App.4th at p. 1151.)
In Hochanadel, supra, 176 Cal.App.4th 997, 1004-1006, the defendants, operators of a storefront medical marijuana dispensary, were charged with possession of marijuana for sale, transportation of marijuana, and maintaining a business for the purpose of selling marijuana. The trial court found that because, inter alia, the dispensary qualified as a primary caregiver under the CUA and MMPA, there was no probable cause for a search warrant and, therefore, granted the defendants’ motion to quash and dismissed the charges against them. (Id. at pp. 1006-1007.)
After the People appealed, the appellate court explained that its sole task was “to determine whether the facts, as known to [police] at the time the [warrant to search the premises] was issued, demonstrated probable cause to believe defendants were not in compliance with the CUA and MMPA.” (Hochanadel, supra, 176 Cal.App.4th at p. 1018.) The court concluded that, because probable cause had existed to support issuance of the search warrant, the trial court had erred when it quashed the search warrant and dismissed the charges against the defendants. (Id. at pp. 1018-1019; cf. People v. Strasburg (2007) 148 Cal.App.4th 1052, 1056, 1059-1060 [after smelling odor of marijuana coming from defendant’s car, officer had probable cause to search car, notwithstanding defendant’s claim that he had a “medical marijuana card”].)
Appellant also cites the case of State v. Crocker (Alaska App. 2004) 97 P.3d 93, 94, in which the Alaska Court of Appeals held that “a judicial officer should not issue a warrant to search a person’s home for evidence of marijuana possession unless the State’s warrant application establishes probable cause to believe that the person’s possession of marijuana exceeds the scope of the possession that is constitutionally protected” under Ravin v. State (Alaska 1975) 537 P.2d 494, in which the Alaska Supreme Court had held that the privacy protection of Alaska’s state constitution protects the right of adults to possess a limited amount of marijuana in their home for personal use. State v. Crocker is, however, inapposite in that, unlike California’s CUA and MMPA, the Alaska Supreme Court “ ‘did not create an affirmative defense that defendants might raise, on a case-by-case basis, when they were prosecuted for possessing marijuana in their home for personal use.... [T]he Alaska Supreme Court has repeatedly and consistently characterized the Ravin decision as announcing a constitutional limitation on the government’s authority to enact legislation prohibiting the possession of marijuana in the privacy of one’s own home. [¶] Accordingly, we reject the State’s suggestion that Ravin left Alaska’s marijuana statutes intact but created an affirmative defense to be litigated in each individual case.’ [Citation.]” (State v. Crocker, at p. 95.)
Here, during their investigation, three officers smelled marijuana and heard sounds coming from the barn suggestive of cultivation of marijuana. They possessed no information whatsoever suggesting the possibility that the marijuana in the barn was being cultivated pursuant to the CUA or the MMPA. Rather, at the time they obtained a search warrant, all of the information they possessed pointed to the presence and cultivation of marijuana, in violation of the law. (See Hochanadel, supra, 176 Cal.App.4th at p. 1018; Fisher, supra, 96 Cal.App.4th at p. 1149.) For these reasons, we conclude they had no additional duty, under current California law, to establish whether anyone on the property had medical authorization to possess or cultivate the marijuana before obtaining or executing the search warrant. (See Fisher, at p. 1152.)
Thus, because the totality of the circumstances described in the statement of probable cause submitted in support of the application for the search warrant demonstrated that there was “a fair probability” that contraband would be found at the Raspberry Lane property (Illinois v. Gates, supra, 462 U.S. at p. 238), probable cause to search existed and appellant’s motion to suppress was properly denied.
Finally, even assuming the statement of probable cause in the search warrant application did not provide probable cause that the marijuana in question was possessed and cultivated in violation of the law, we conclude that the good faith exception to the exclusionary rule would apply because a reasonably well-trained police officer would have believed probable cause existed. (See Hochanadel, supra, 176 Cal.App.4th at pp. 1017-1018, citing United States v. Leon (1984) 468 U.S. 897, 922-923; accord, People v. Camarella (1991) 54 Cal.3d 592, 605-607; People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) First, even if the statement of probable cause was ambiguous as to the timing of the citizen informant’s tips, the officers knew that, in addition to the tip from 18 months before, the informant had recently confirmed his or her belief that the indoor grow operation was still taking place. (See People v. Mikesell, supra, 46 Cal.App.4th at pp. 1719-1720.) In addition, even were appellant correct that, in light of the CUA and the MMPA, the smell of marijuana and sounds of growing equipment no longer raise an inference of criminality, there is no case law that so states and the police officers in this case cannot reasonably be expected to anticipate such a change in the law. (See People v. Fleming (1994) 22 Cal.App.4th 1566, 1573-1574 [police are expected to have a “reasonable knowledge” of the law].)
The trial court properly denied appellant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.