People v. Keppeler, C041022 (Cal. App. 10/31/2003)
| Decision Date | 31 October 2003 |
| Docket Number | C041022. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JASON ROBERT KEPPELER, Defendant and Appellant. |
Peace officers executing a search warrant found over 1,600 marijuana plants, over 11 pounds of marijuana and several loaded guns, including two assault weapons, on defendant's land. He pleaded guilty to possession for sale of marijuana and admitted an arming allegation. (Health & Saf. Code, § 11359; Pen. Code, § 12022, subd. (a)(1).) The trial court sent him to prison for three years.
On appeal, defendant contends his motion to suppress should have been granted and the trial court should have granted his motion for an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57 L. Ed. 2d 667, 98 S. Ct. 2674] (Franks) to allow him to unearth misstatements in the warrant affidavit.
The affidavit partly included information derived from the warrantless aerial thermal imaging of defendant's barn. Later, the United States Supreme Court ruled that thermal imaging of a house is a search. (Kyllo v. United States (2001) 533 U.S. 27 [150 L. Ed. 2d 94, 121 S. Ct. 2038] (Kyllo).) The trial court concluded that the affidavit did not show probable cause once the thermal imaging evidence was excluded, but the officers had an objectively reasonable belief in its validity (see United States v. Leon (1984) 468 U.S. 897 [82 L. Ed. 2d 677, 104 S. Ct. 3405] (Leon) and defendant failed to show cause for a Franks hearing.
Based on the facts other than the thermal imaging and because the issue of whether thermal imaging of a barn is subject to the Kyllo rule is still an open question, it cannot be said the affiant should have known that the warrant was not supported by probable cause. Therefore, we agree with the trial court that the affiant sought and relied on the warrant in good faith. We also conclude defendant did not show good cause for a Franks hearing. We shall affirm.
After defendant's property was searched, the property of two codefendants, the Bogdans, was searched. The warrant for the Bogdan property was based partly on evidence found on defendant's property. The Bogdans and defendant joined each other's motions to suppress.
In his affidavit for a warrant, Deputy Sheriff Richer presented a number of facts which we divide into two categories.
Facts not based on thermal imaging:
(1) In October 2000, federal law enforcement officer Frick told Richer he had found a chest on federal land next to defendant's land, which had maps, sketches and letters pertaining to marijuana growing.
(2) On October 27, 2000, Richer went to the area where Frick found the chest and saw people working on a barn with covered windows on defendant's land.
(3) In early November, 2000 Richer learned defendant was the owner of record of the land with the barn.
(4) On March 23, 2001, Richer and Detective Rist went near defendant's land and heard "a very large generator" running, and as they neared the sound it appeared to come from the barn. From about 100 yards away, Richer "smelled briefly, what appeared to be the odor of green marijuana" and Rist thought he smelled it too.
(5) On April 5, 2001, Frick told Richer he had been at the property the previous morning and heard a large generator sound coming from the barn. He also reported to Richer that he had seen a large, laden, truck back up to that barn "and persons unloading unknown objects from this truck." The license number of a vehicle on the property was checked, and was traced to names reflected on the indicia found in the chest the previous October.
(6) On April 13, 2001, in the early afternoon, Frick, Richer and Rist heard the generator running. It was also running late that same night.
(7) Richer had some knowledge about the use of generators for residential purposes as well as for marijuana cultivation, and the generator he heard was too large and ran too often to be for household use.
Additional facts based on thermal imaging:
(1) In May, 2001 officers had flown over defendant's land using thermal imaging, and Richer reviewed a videotape of this flight. An officer with expertise in such matters (Deputy Royce Grossman) told him the images showed unusual thermal activity in the barn.
(2) Grossman filed a separate affidavit in support of the warrant explaining his thermal imaging expertise and what he saw on the tape. The relevant images were of the barn, and the readings showed "a great deal of excess heat coming from the barn." The only statement about the residence is that it was colder than the barn, "even though [it] is where the people live."
Before Richer gave his affidavit to a judge, it was reviewed by a deputy district attorney.
Judge Edwards issued the warrant on May 16, 2001. The property was searched on May 23, 2001.
On June 11, 2001, Kyllo was decided, holding that any invasion of the home is intrusive, that the Fourth Amendment drew "'a firm line at the entrance to the house,'" and where the government uses thermal imaging "to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Kyllo, supra, 533 U.S. at p. 40 .) The court distinguished a decision which involved "enhanced aerial photography of an industrial complex," which was not a search because it did not involve "'an area immediately adjacent to a private home, where privacy expectations are most heightened[.]'" (Id. at p. 33 [150 L. Ed. 2d at p. 102, discussing Dow Chemical Co. v. United States (1986) 476 U.S. 227 [90 L. Ed. 2d 226, 106 S. Ct. 1819].)
Defendant claimed evidence about thermal imaging should be redacted from the affidavit, which then did not show probable cause. He claimed Richer must have entered his property illegally because the seized generator matched what Richer claimed he had heard and it was improbable that he could detect the type of generator by hearing; also, he claimed Richer willfully omitted from the affidavit facts, such as that the Keppeler house relied on generator power and no other evidence of cultivation was seen.
The People argued (1) Kyllo did not prohibit thermal imaging of a barn; (2) the affidavit showed probable cause even without thermal imaging information; (3) the officers acted with good faith as defined in Leon; and (4) defendant's request for a Franks hearing lacked substance.
Judge Letton concluded the Kyllo evidence should not have been used and doubted Richer's ability to identify the generator by sound. He ruled the affidavit did not contain probable cause, but Richer acted in good faith, partly due to the Kyllo evidence. He also concluded no Franks hearing was required.
We agree with the People that defendant conflates Franks, supra, 438 U.S. 154 and Leon, supra, 486 U.S. 897 . A Franks hearing presumes a valid warrant and seeks to traverse the warrant by proof of misstatements and omissions which can lead to redaction and retesting of probable cause; a Leon hearing presumes a facially invalid warrant "and the burden is on the prosecution, not the defense." (People v. Maestas (1988) 204 Cal. App. 3d 1208, 1216, 252 Cal. Rptr. 739.) We will separately address these strands of the appeal.
A ruling denying a Franks hearing is reviewed de novo. (People v. Benjamin (1999) 77 Cal.App.4th 264, 271 (Benjamin).)
The defendant must make a "substantial" showing that the affidavit contains statements that are deliberately false or made with reckless disregard of the truth and show the rest of the affidavit does not contain probable cause. (Id. at pp. 271-272; see People v. Bradford (1997) 15 Cal.4th 1229, 1297, 939 P.2d 259 [].) We presume the warrant is valid and defendant must show tangible evidence of the alleged improper statements: Franks does not authorize fishing expeditions. (People v. Wilson (1986) 182 Cal. App. 3d 742, 750, 227 Cal. Rptr. 528; see Benjamin, supra, 77 Cal.App.4th at p. 272.)
For the purposes of assessing whether a Franks hearing is required on the ground that the affidavit contains statements that are deliberately false or made in reckless disregard of the truth, we have recently held it is permissible to look at the results of the search, which might tend to show either that the affidavit was accurate or inaccurate. "Where an affiant states that strong marijuana odors could be smelled, and there are rows and rows of adult marijuana plants in the house, the latter would tend to corroborate the truthfulness of the former." (Benjamin, supra, 77 Cal.App.4th at p. 275.) Richer averred that from a distance he smelled "fresh marijuana" by the barn and many marijuana plants were found there. That tends to show his truthfulness in general.
Richer also averred that he could hear a generator, too large for residential use. He set forth his experience with generators and averred that household generators are typically in the 7-10 watt range, that "Whisperwatt type generators are the generators of choice for marijuana growers" and that what he heard sounded like a 25-65 watt generator. The search revealed that defendant's marijuana operation was powered by a 45-watt Whisperwatt generator.
For purpose of the Franks hearing, defendant offered Richer's preliminary hearing testimony. Richer testified he found a 45-watt Whisperwatt generator, which he has encountered in "Numerous indoor marijuana cultivation operations," and which was being used both for the growing operation and to power defendant's house. He also testified he had trespassed to make the observations reflected in his affidavit. He had not...
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