People v. Weiss

• Citation: 66 Cal.App.4th 772,78 Cal.Rptr.2d 284
• Decision Date: 10 September 1998
• Docket Number: No. A078089,A078089
• Court: California Court of Appeals
• Parties: Previously published at 66 Cal.App.4th 772 66 Cal.App.4th 772, 98 Cal. Daily Op. Serv. 7134, 98 Cal. Daily Op. Serv. 7137, 98 Daily Journal D.A.R. 9825 The PEOPLE, Plaintiff and Respondent, v. Carl William WEISS, Defendant and Appellant.

Page 284

78 Cal.Rptr.2d 284

Previously published at 66 Cal.App.4th 772

66 Cal.App.4th 772, 98 Cal. Daily Op. Serv. 7134,

98 Cal. Daily Op. Serv. 7137,

98 Daily Journal D.A.R. 9825

The PEOPLE, Plaintiff and Respondent, v. Carl William WEISS, Defendant and Appellant.

No. A078089.

Court of Appeal, First District, Division 3, California.

Sept. 10, 1998.

Review Granted Dec. 22, 1998.

Chris P. Andrian, Esq., Andrian & Gallenson, Santa Rosa, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald E. Niver, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, for Plaintiff and Respondent.

PARRILLI, Associate Justice.

In this case, the sole issue is whether illegally obtained information contained in a search warrant affidavit tainted the magistrate's decision to issue the warrant. Under the "independent source" exception to the exclusionary rule, evidence discovered in an unconstitutional search is admissible if the evidence was also obtained from an independent untainted source. (Murray v. United States (1988) 487 U.S. 533, 537-538, 108 S.Ct. 2529, 101 L.Ed.2d 472 (Murray ).) When a search warrant is obtained after an illegal search, the prosecution must show "that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it" for the independent source rule to apply. (Id. at p. 540, 108 S.Ct. 2529.) In Murray, the illegal entry was not mentioned in the search warrant application.

The Court of Appeal, Third Appellate District has held that if a warrant affidavit includes illegally obtained information, it is not enough for the prosecution to establish that the affidavit supports a finding of probable cause after the improper portion is deleted; Murray requires the court to make a factual finding that the magistrate's decision was not influenced by the illegally obtained information. (People v. Koch (1989) 209 Cal.App.3d 770, 788, 257 Cal.Rptr. 483 (Koch ).) We disagree with the Koch court's view that such a finding is required. Most federal and state jurisdictions to consider the matter have concluded that in order to determine whether the magistrate's decision was tainted, the court need only examine the warrant application to see if probable cause is established after the improperly discovered information is excised. We are persuaded this is the correct approach. Here, we conclude that the search warrant affidavit contained sufficient legally obtained information to provide probable cause. Accordingly, we affirm the trial court's denial of appellant's motion to suppress.

BACKGROUND

Officers serving a search warrant at a residence on Mirabel Road in Forestville discovered 83 marijuana plants growing under lights in the basement. The basement was accessible through an interior trap door, which was locked with a padlock, and a small exterior door, which was locked with a combination lock. Bruce Nicolaisen, who lived The officers decided to question Weiss about the marijuana growing operation in Nicolaisen's house. They arrived at Weiss' home on Giovanetti Road in Forestville late in the afternoon. Weiss answered the door, and an officer asked to come in and speak with him. Weiss asked if the officer had a search warrant. The officer said he did not. Weiss stepped outside, and the officer said he wanted to ask about Weiss' potential involvement in marijuana cultivation. The remainder of the search team had arrived by this time, amounting to at least six officers. Weiss looked around nervously, and said he did not want to talk. One officer walked around the house, which was built on a slope and rested on posts in the rear. In the area beneath the rear of the house, the officer observed a variety of materials used for indoor marijuana cultivation. Other officers who were in the driveway in front of the house observed several five-gallon plastic buckets painted with camouflage colors next to the driveway, a larger brown barrel wedged between trees with an irrigation line connected to its bottom, and a section of plastic pipe painted in camouflage colors running down the hill toward a vegetable garden.

on the property, was confined to a wheelchair and could not have used either door to the basement. He told an officer he did not have the key or combination to the locks, and refused to say who did. Nicolaisen's roommate, Lynnette Kester, arrived after the officers served the warrant. She told an officer that a friend of Nicolaisen's named Carl came by daily to take care of the pool and a garden at the back of the property. While watching Nicolaisen's residence during the previous week, officers had seen a visiting vehicle they identified as belonging to appellant Carl William Weiss. Department of Motor Vehicles records provided a description of Weiss that matched Kester's description of "Carl."

The officers left about ten minutes after their arrival, but two of them guarded the entrance to Weiss' driveway, which was not visible from the house. After about an hour, Weiss drove away from his house but was stopped and detained by the officers. They recovered a key from him that was later found to fit the lock on Nicolaisen's trap door. Weiss was taken back to his house, which the officers entered and secured pending the issuance of a search warrant.

The affidavit supporting the search warrant application described the following: (1) the service of a warrant and the legal search at Nicolaisen's house; (2) the information provided by Kester; (3) the identification of Weiss from Department of Motor Vehicles records; (4) the interview with Weiss at his home; (5) the observation of the water barrel and the pipeline in front of his house and the growing materials at the rear; and (6) Weiss' detention as he was attempting to leave home. An immediate nighttime search was requested and granted. The officers served the warrant shortly after midnight. They discovered a shed behind Weiss' house, which appeared to be the site of a hastily uprooted marijuana garden. The next morning, the officers followed a trail of fresh marijuana debris and found 22 freshly cut plants in a wooded area about 250 yards from Weiss' house.

Weiss and Nicolaisen were charged jointly with marijuana cultivation and possession for sale. Nicolaisen moved to suppress the evidence seized from his residence, on the grounds that the warrant was based on 3-year-old information from a confidential informant, and the warrant application omitted or misstated facts that explained Nicolaisen's elevated electricity and water usage and the results of thermal imaging tests at his house. The motion was granted and the charges against Nicolaisen were dismissed. On Weiss' motion to suppress, the court ruled that the agent who observed the growing materials beneath the house had no justification for searching down the hillside, and the court suppressed those observations. However, the court determined that the warrant application provided sufficient probable cause after the illegal observations were excised. Therefore, the court upheld the warrant.

Weiss submitted supplemental points and authorities, arguing that Koch, supra, required the court to go further and determine whether the search behind the house had affected either the officers' decision to seek a

                warrant or the magistrate's decision to grant the warrant.  The [66 Cal.App.4th 777] court then made a supplemental finding that the officers would have sought the warrant and the magistrate would have granted it without the information derived from the illegal search.  Weiss had conceded at the hearing on his motion that the officers would have sought the warrant even if they had not looked beneath his house.  Regarding the effect of this information on the magistrate's decision, the court found "that was not a major consideration by the Court in issuing the warrant."   Weiss changed his plea to no contest on the cultivation charge, and this appeal followed
                

DISCUSSION

When the superior court sits as the finder of fact on a motion to suppress brought in the first instance in superior court, we must uphold the court's factual findings if they are supported by substantial evidence. However, we independently determine whether the facts establish probable cause, and whether suppression of evidence is required under federal constitutional standards. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224, 266 Cal.Rptr. 473; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716, 54 Cal.Rptr.2d 708.)

In Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377, the United States Supreme Court observed: "The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired." (Id. at pp. 442-443, 104 S.Ct. 2501.) However, "[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position tha[n] they would have been in if no police error or misconduct had occurred." (Id. at p. 443, 104 S.Ct. 2501.) Therefore, "[t]he independent source...