P. v. Fang
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Shaorong Fang (appellant) appeals from a judgment entered after he pleaded guilty to theft of utility services of a value exceeding $950 (Pen. Code, § 498, subd. (d)) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). He contends the trial court erred in denying his motion to quash a warrant and suppress evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an affidavit in support of a search warrant, Michael Toscano declared he had been employed as a South San Francisco peace officer for eight years and had been assigned to the San Mateo County Narcotic Task Force since 2005. He set forth his training and experience regarding the use and sales of narcotics and controlled substances including marijuana. He declared that shortly after receiving an anonymous letter regarding the possible cultivation of marijuana inside a residence located in Daly City, he and a special agent supervisor went to the residence to conduct an investigation. While standing on a public sidewalk, Toscano saw that the upper and lower level windows on the west side of the residence were covered and there was condensation on the inside of a window. When he walked up a marked walkway, he smelled "the distinct odor of marijuana emanating from the residence" and heard a "constant humming/buzzing sound coming from inside the front" of the residence. Based on his training and experience, he knew that individuals cultivating marijuana often kept windows obstructed to avoid detection by law enforcement and to aid them in controlling the amount of light to which the marijuana plants were exposed. He also knew that condensation on the inside of windows commonly occurred in residences used to cultivate marijuana. He knew that residences used for marijuana cultivation frequently had the distinct odor of marijuana being emitted from the residence and that they were equipped with large fans that produced a loud humming/buzzing sound.
The trial court issued a warrant, and during a search of a residence conducted pursuant to the warrant, the police found approximately 22 pounds of processed marijuana packaged in "ready-to-sell turkey bags," 18 boxes of unused turkey bags, over 800 marijuana plants in various stages of growth, six-gallon tubs of plant nutrients, numerous high wattage light bulbs, a commercial-size electrical fan, a digital scale, a bypassed electric meter, and documents showing appellant as the title holder of the residence. Based upon the evidence obtained, the Solano County District Attorney's Office charged appellant with: (1) planting, cultivating, harvesting, drying or processing of marijuana (Health & Saf. Code, § 11358, count 1); (2) possession of marijuana for sale (Health & Saf. Code, § 11359, count 2); (3) theft of utility services of a value exceeding $950 (Pen. Code, § 498, subd. (d), count 3); and (4) transportation of marijuana (Health & Saf. Code, § 11360, subd. (a), count 4).
Appellant brought a motion to quash the warrant and suppress evidence, arguing, among other things, that the affidavit did not establish probable cause to conduct a search because "[t]here were no facts that established the cultivation of the marijuana was unlawful or not for medicinal purposes pursuant to the California Compassionate Use Act . . . ." After a hearing, the trial court denied the motion. Appellant pleaded guilty to counts 3 and 4 and was sentenced to two years in prison for count 3, with a concurrent 16-month sentence for count 4.
"We review a trial court's ruling on a motion to suppress evidence under [Penal Code] section 1538.5 by applying the substantial evidence test to the factual determinations made by the court, with all presumptions favoring the trial judge's findings." (People v. Manderscheid (2002) 99 Cal.App.4th 355, 359.) " 'However, we use our independent judgment to determine whether those facts establish probable cause. [Citation.] We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.' " (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)
To justify issuance of a warrant, "[t]here must be probable cause to believe that the material sought to be seized will be on the premises to be searched when the warrant is served." (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) "The order issuing a warrant in a criminal case may be set aside only if the affidavit, as a matter of law, does not establish 'probable cause.' " (County of Contra Costa v. Humore, Inc. (1996) 45 Cal.App.4th 1335, 1346.) We thus evaluate the affidavit for probable cause, which "exists when all the circumstances set forth in the affidavit demonstrate a fair probability that contraband or evidence of a crime will be found in a particular place." (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) " 'A reviewing court will consider the totality of the circumstances to determine whether the information contained in an affidavit supporting the application for a warrant establishes a fair probability that a place contained contraband or evidence of a crime. [Citation.] Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants. . . .' [Citation.]" (People v. Lim, supra, 85 Cal.App.4th at p. 1296.) "On appeal, we accord the magistrate's determination great deference, inquiring only whether there was a substantial basis to conclude that the warrant would uncover evidence of crime." (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.)
Appellant contends there was no probable cause "showing commission of a crime" because the information contained in the affidavit was as consistent with lawful cultivation and possession of marijuana--pursuant to the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA)--as with illegal activity, i.e., "it did not show facts suggesting that this was illegal marijuana cultivation." Assuming, without deciding, that appellant has standing to raise the issue and that he did not forfeit his claim,1 we conclude the trial court properly denied his motion.
Possessing or cultivating marijuana are crimes. (Health & Saf. Code, §§ 11357, 11358.) Although both the CUA and MMPA established exceptions to certain marijuana-related offenses, they did not legalize marijuana. Rather, they provide affirmative defenses to qualified medical marijuana users, giving those persons the burden at trial to raise a reasonable doubt about the lawfulness of their actions, i.e., that they are medical marijuana users. (See, e.g., People v. Mower (2002) 28 Cal.4th 457, 481-483 [the CUA confers only a limited immunity entitling the defendant to bring a motion to set aside the information prior to trial]; People v. Wright (2006) 40 Cal.4th 81, 85, 93-94 [the MMP provides an affirmative defense at trial]; People v. Fisher (2002) 96 Cal.App.4th 1147, 1151-1152 [same] (Fisher).)
Thus, in Fisher, the Court held that even though the defendant who was served with a warrant provided the officers with a document indicating he was growing marijuana in compliance with the CUA, the officers had no duty to return to the magistrate for a determination as to whether probable cause still existed, and, in fact, had the duty to execute the warrant.2 (96 Cal.App.4th at pp. 1150-1151.) The Court pointed out that the CUA ballot information provided: " 'Police officers can still arrest anyone for marijuana offenses. Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor's approval.' [Citation.]" (96 Cal.App.4th at p. 1152.) Because the CUA was structured to provide an affirmative defense, it had no effect on probable cause: "Defendant's claim to the officers that he had a certificate that allowed him to legally possess marijuana for medicinal purposes asserted 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." (Ibid.; see also People v. Strasburg (2007) 148 Cal.App.4th 1052, 1058-1060 [warrantless search of a car was not unlawful where the officer smelled marijuana coming from the defendant's car, even though the defendant had offered to produce a medical marijuana prescription, because the CUA "provides a limited immunity--not a shield from reasonable investigation"].)
Here, during his investigation, Toscano saw covered windows and condensation on the inside of a window, smelled "the distinct odor of marijuana emanating from the residence," and heard a "constant humming/buzzing sound coming from inside" the front of the residence. There was no information suggesting the possibility that the marijuana was being cultivated pursuant to the CUA or the MMPA. Rather, at the time the search warrant was obtained, all of the information pointed to the presence and cultivation of marijuana in violation of the law. Because the totality of the circumstances described in the affidavit demonstrated that there was a " 'fair probability' " that a search would uncover criminal conduct, (see People v. Lim, supra, 85 Cal.App.4th at page 1296), there was probable cause for the issuance of a warrant and for the search.
Further, even assuming the affidavit did not provide probable cause that there was unlawful marijuana cultivation, we conclude that the good faith exception to the exclusionary rule would apply. (See People v. Hochanadel (2009) 176 Cal.App.4th 997, 1017-1018, citing United States v. Leon (1984) 468 U.S. 897, 922-923.) Law enforcement officers are expected to have only "a reasonable knowledge of what the law prohibits." (People v. Fleming (1994) 22 Cal.App.4th 1566, 1573, 1574; see also People v. Lim, supra, 85 Cal.App.4th at pp. 1296-1297 [the test is whether "a reasonably well-trained officer in the officer's position would have known that his affidavit failed to establish probable cause].) Thus, even if, in light of the CUA and the MMPA, covered windows, condensation on windows, 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 could not have reasonably been expected to anticipate such a change in the law.
The judgment is affirmed.
We concur: Pollak, J. Siggins, J.
1. The Attorney General (respondent) argues that appellant lacks standing because it is undisputed that he "never had a CUA card or permit or authorization of any sort to provide marijuana" and that "the cultivation operation [at his home] was 'not a cooperative.' " Respondent alternatively argues that appellant forfeited the claim because "he did not ask any questions at the preliminary hearing on that issue" and "waited for nearly a year after the . . . preliminary hearing before he first mentioned the CUA in his suppression motion .. . ."
2. The Court did note, "While 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.)