Filed 11/4/14 P. v. Stanley CA3
                                                NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                           THIRD APPELLATE DISTRICT
                                                            (Calaveras)
                                                                   ----




THE PEOPLE,

                     Plaintiff and Respondent,                                                          C073836

          v.                                                                                (Super. Ct. No. 12F5616)

GREGORY MARTEL STANLEY,

                     Defendant and Appellant.


          Defendant Gregory Martel Stanley challenges the trial court’s denial of his motion
to suppress evidence obtained pursuant to a search warrant. Defendant contends the trial
court erred in denying his motion on the basis that: (1) there was not probable cause to
issue the search warrant because (a) Deputy Crabtree misled the magistrate by failing to
include in his affidavit that defendant had admitted to firing a shot at the victim using the
Kahr nine-millimeter weapon, seized by officers when they arrested defendant and (b) the
items described in the search warrant were not germane to the crime the officers were
investigating; and (2) the hydrocodone and marijuana seized by the officers were not




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items described in the search warrant. We conclude the trial court did not err and affirm
the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                       The Incident
       Michael Hatterle had been at a bar drinking alcohol most of the day on
September 30, 2012. At approximately 1:30 a.m., Hatterle and defendant, who was a
bartender at the bar, engaged in a heated political argument that resulted in defendant
escorting Hatterle out of the bar. Once outside, defendant fired a handgun in Hatterle’s
direction and defendant’s girlfriend assaulted Hatterle with a metal fence pole. Hatterle
was apparently struck in the arm by the ricocheting bullet.
                                    The Investigation
       Hatterle reported the incident to the Calaveras County Sheriff’s Department. At
approximately 2:20 a.m. on October 1, 2012, Deputy Josh Crabtree was dispatched to the
bar where he found a nine-millimeter spent shell casing and a metal pole. Deputies
obtained a warrant to search the bar (bar warrant). At approximately 2:00 p.m., as
sheriff’s deputies drove toward the bar to execute the bar warrant, they observed
defendant and his girlfriend approaching the bar. The deputies performed a traffic stop
and arrested defendant for assault with a deadly weapon. Deputies seized from defendant
a Kahr Arms nine-millimeter handgun and his cell phone. Defendant admitted using the
Kahr nine-millimeter to shoot at Hatterle, and a records check indicated defendant also
owned a Beretta nine-millimeter and a Glock ten-millimeter. Deputies found no other
evidence relating to the incident at the bar when they executed the search warrant.
       That evening, Crabtree obtained a search warrant for defendant’s residence (search
warrant). The search warrant application referred to and contained a copy of the bar
warrant from earlier that day, and an affidavit from Crabtree. Crabtree averred he had
seized defendant’s Kahr nine-millimeter and cell phone pursuant to the traffic stop and
the bar warrant, but deputies had not located defendant’s other nine-millimeter handgun.

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He opined there was probable cause to believe assault with a deadly weapon had been
committed; defendant and witnesses fled the scene to avoid law enforcement following
the shooting; defendant may have hidden his other nine-millimeter handgun; and
defendant may have used his cell phone to make calls, send texts, or e-mail other
witnesses to establish a protective story, alibi, or matching accounts. The search warrant
application also represented that cell phones could be used to take and store photographic
and video evidence.1 The affidavit did not reference defendant’s admission that he had
fired at Hatterle using the gun deputies had seized.
       The search warrant (signed at 9:00 p.m.) authorized deputies to search for cell
phones, voice mail messages, and electronically stored data related to cell phone
communications, including photographs and videos; items establishing dominion and
control of the residence and items seized therein; any nine-millimeter handgun,
ammunition, or related paraphernalia; and written communications or accounts of the
shooting. Via telephone, Crabtree instructed the officers waiting outside defendant’s
home to execute the search. Deputies located the Beretta nine-millimeter, ammunition,
and cell phone bills, and also discovered marijuana and hydrocodone pills in the
residence. The hydrocodone was in a closed tin container measuring one-inch by one and
one half-inch on the coffee table in the living room.
                                 Procedural Background
       Defendant was charged with possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a) -- count one); willful and unlawful drawing and exhibition of a
firearm in a rude, angry, and threatening manner (Pen. Code, § 417, subd. (a)(2)(A) --




1      The application referred to capturing evidence of drug activity using cell phone
cameras but there were no allegations of drug activity at the time. Since defendant did
not object on this basis in the trial court, the contention is forfeited.

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count two);2 willful and unlawful carrying of a loaded firearm in public (§ 25850, subd.
(a) -- count three); and possession of marijuana (Health & Saf. Code, § 11357, subd. (c) -
- count four). After the court denied his motion to suppress evidence, defendant pled no
contest to count one in exchange for a dismissal of all other counts. The court granted
defendant probation for three years, sentenced him to serve 12 days in county jail, and
awarded presentence custody credits of 12 days.
                                    Evidentiary Motion
       Defendant moved to suppress evidence pursuant to section 1538.5 claiming the
marijuana and hydrocodone found at his residence were obtained without probable cause
and were not described in the search warrant.3 Defendant claimed the search was a
“fishing expedition” based on Crabtree’s allegedly misleading affidavit because deputies
already had all the evidence they needed in their possession prior to seeking the warrant:
the Kahr nine-millimeter handgun; the spent shell casing; and defendant’s admission he
had fired the Kahr nine-millimeter at Hatterle.4



2      Undesignated statutory references are to the Penal Code.
3      Section 1538.5 provides, in pertinent part, that “[a] defendant may move . . . to
suppress as evidence any tangible or intangible thing obtained as a result of a search or
seizure” where “[t]he search or seizure with a warrant was unreasonable” because “[t]he
property or evidence obtained is not that described in the warrant” or “[t]here was not
probable cause for the issuance of the warrant.” (§ 1538.5, subd. (a)(1).)
4      Defendant cited no authority beyond a perfunctory citation to section 1538.5,
subdivision (a)(1)(A)(ii)-(iii), in support of his motion to suppress; nor did he present any
evidence until the hearing on the motion (via cross-examination of deputies Crabtree and
Gillespie and defendant’s testimony). While the trial court may have attempted to divine
defendant’s meaning and unstated theories, we decline to make his arguments for him.
(See People v. Auer (1991) 1 Cal.App.4th 1664, 1670 (Auer) [where the People are not
placed on notice of a theory or contention in the defendant’s motion to suppress that
theory may not be raised on appeal].) Thus, defendant is limited to the unverified facts
and unsupported arguments he actually raised in the trial court, delineated above.
(§ 1538.5, subd. (a)(2) [motion must “set forth the factual basis and the legal authorities

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       The People opposed the motion, arguing the search warrant was supported by
probable cause, and even if not, the officers could rely upon it in good faith. The People
argued probable cause existed to believe the gun in defendant’s possession at the time of
his arrest was not the gun used in the incident because defendant owned another nine-
millimeter gun. Also, defendant may have communicated with others via cell phone to
coordinate an alibi or a favorable version of events in the half day between the incident
and his arrest. The People also argued the drugs could be seized regardless of whether
they were named in the search warrant because they were recognized as contraband.
Deputy Josh Gillespie, who executed the search warrant, testified he opened the container
that held the hydrocodone “looking for digital evidence” such as “SD cards, memory
cards that can go into cameras or camcorders,” believing they were included in the search
warrant.
       The trial court denied the motion, which it construed as a motion to quash the
search warrant, to traverse the search warrant, and to suppress evidence obtained pursuant
to the search warrant. It reasoned confessions may be the subject of suppression or may
be recanted, and ballistics could have determined the Kahr nine-millimeter was not used
to shoot at Hatterle. The court also found officers laid out the facts to the magistrate
(except that defendant admitted the Kahr nine-millimeter was used in the incident), who
decided there was probable cause to permit the search of defendant’s residence for
electronic equipment, ammunition, and firearms. The officers had a lawful right to open
the closed container to look for microchips, SIM cards, or electronic equipment. The
court further found there was no fault on the part of the officers in conducting the search.
If there was fault, it was overcome by the good faith reliance theory set forth in U.S.




that demonstrate why the motion should be granted”]; People v. Williams (1999)
20 Cal.4th 119, 136 (Williams) [re: issues]; People v. McKim (1989) 214 Cal.App.3d
766, 768, fn. 1 (McKim) [re: facts]).

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v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677], which was cited by the People in their
opposition.
                                       DISCUSSION
                                               I
                          Motion to Quash or Traverse Warrant
       In determining whether probable cause exists to support a search warrant, the
issuing magistrate must “make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him [or her] there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And the duty of the
reviewing court is simply to ensure that the magistrate had a ‘substantial basis for
concluding’ that probable cause existed. [Citation.]” (Illinois v. Gates (1983) 462 U.S.
213, 238-239 [76 L.Ed.2d 527, 548].)
                Motion to Traverse Based on Alleged Material Omission
       Defendant contends the affidavit in support of the search warrant is insufficient
because Crabtree misled the magistrate by omitting from his affidavit material
information, namely defendant’s admission that he had shot at Hatterle using the Kahr
nine-millimeter seized from him when he was arrested. We conclude the affidavit is not
insufficient because defendant failed to show the omission was material, or it was omitted
recklessly, or with an intent to mislead the magistrate.
       A defendant may challenge the veracity of a facially valid search warrant affidavit
on the grounds it contains misrepresentations or omissions. (Franks v. Delaware (1978)
438 U.S. 154 [57 L.Ed.2d 667]; People v. Luttenberger (1990) 50 Cal.3d 1, 11; People
v. Kurland (1980) 28 Cal.3d 376, 384 (Kurland).) “[A]n affidavit may be insufficient
when it omits facts adverse to the warrant application. [Citations.]” (Kurland, supra, at
p. 384.) However, the affiant has a duty only to disclose facts that are material, meaning
“only those omissions which significantly distort[] the probable cause analysis” will
make an affidavit insufficient. (Id. at pp. 384-385.) Thus, “[o]n review under section

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1538.5, facts must be deemed material . . . if, because of their inherent probative force,
there is a substantial possibility they would have altered a reasonable magistrate’s
probable cause determination.” (Ibid.)
       If a trial court determines an asserted omission is material, it must then decide
whether the omission “arose innocently or from culpable conduct.” (Kurland, supra,
28 Cal.3d at p. 387.) A material omission will not render an affidavit insufficient if the
affiant reasonably, even if incorrectly, concluded the omitted fact was immaterial. (Id. at
pp. 388-389.) Thus, the defense first bears the burden of showing “with some
specificity,” why material facts were omitted and why those facts are material. (Id. at p.
390.) The People may show the material omission was proper or reasonable. (Ibid.) The
defendant must then show the omission was the result of recklessness or the intent to
mislead by the affiant. (Ibid.)
       Here, including defendant’s admission would not have undermined the probable
cause showing. This omission was unlikely to influence the magistrate’s probable cause
determination because confessions are frequently the subject of motions to suppress or
are recanted, ballistics may have established defendant lied about using the Kahr nine-
millimeter, and officers knew defendant had another nine-millimeter gun. Indeed,
defendant left the bar prior to Crabtree’s arrival at 2:20 a.m. and did not contact law
enforcement in the nearly 12 hours before his arrest. It would be reasonable for a
magistrate to conclude there was probable cause that defendant’s other nine-millimeter
gun, which was located at his home, was used to commit the crime despite defendant’s
admission, and that defendant had communicated with witnesses (other bar patrons) and
his girlfriend to coordinate their factual recollections of the incident. Thus, defendant
failed to establish the omission was material.
       Even if we were to assume the omission was material, defendant did not establish
Crabtree omitted defendant’s admission from his affidavit recklessly or with an intent to
mislead the magistrate. The only assertion defendant made to establish “recklessness or

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intent to mislead,” was that Crabtree knew of the admission.5 Crabtree testified at the
suppression hearing that he did not credit defendant’s admission because he had an
obligation to find out if defendant actually committed the crime, and suspects “lie to
[him] every day.” The mere fact Crabtree knew of defendant’s admission is not
sufficient to demonstrate he acted with reckless disregard for the truth or intent to mislead
in omitting the admission from his affidavit. (See Kurland, supra, 28 Cal.3d at p. 387
[“Intentional omissions . . . are not necessarily an effort to mislead the magistrate. [Fn.
omitted.] They may arise from a correct, or at least reasonable, conclusion that the
omitted facts were immaterial or privileged”].)
       Accordingly, we conclude the trial court did not err in denying defendant’s motion
to the extent it construed the motion as a motion to traverse the search warrant.
                     Motion to Quash Based on Alleged Irrelevance
       Having concluded the affidavit did not mislead the magistrate due to material
omissions undermining the probable cause showing, we turn to defendant’s contention
the search warrant was not supported by probable cause because the items described
therein were not germane to the investigation of the reported crime. The crux of
defendant’s argument appears to be that once the deputies had the Kahr nine-millimeter,
the spent shell casing from the bar, and defendant’s admission, the case was solved and
anything described in the search warrant was no longer germane to the investigation of
the incident.6 Defendant cites no authority to support this proposition, and we find none.



5       Defendant also claimed, without evidentiary support, Crabtree knew defendant’s
girlfriend was the former wife of a former sheriff’s deputy in the county. The trial court
apparently disregarded this claim, and without any evidence to support the claim in the
record, so do we. (McKim, supra, 214 Cal.App.3d at p. 768, fn. 1.)
6      To the extent defendant contends law enforcement officers could not search for
any cell phone related information because deputies had seized defendant’s cell phone
when they arrested him, he cannot raise that contention on appeal because he failed to

                                              8
Defendant’s argument would require us to accept that once defendant admitted shooting
at Hatterle using the Kahr nine-millimeter, the deputies had to believe him and could not
continue their investigation. If that were the case, whenever any suspect confessed,
truthfully or not, the investigation of the alleged crime would stop, and officers would be
unable to corroborate the suspect’s confession or to find other evidence relating to the
crime. This is contrary to the truth-seeking function criminal investigation and
prosecution must pursue. The trial court did not err in denying the motion on this basis.
       A defendant seeking to quash a search warrant has the burden of establishing its
invalidity. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101.) The trial court must
determine “whether the magistrate had a substantial basis for concluding a fair
probability existed that a search would uncover wrongdoing. [Citations.] ‘The task of
the issuing magistrate is simply to make a practical, commonsense decision whether,
given all the circumstances set forth in the affidavit before him [or her], there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’
[Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) “The magistrate’s
determination of probable cause is entitled to deferential review. [Citations.]” (Id. at
p. 1041.)
       Here, the magistrate found there was probable cause to believe the items described
therein were at defendant’s home and were “lawfully seizable.” The reviewing court
found the “[o]fficers were armed with the information [defendant] had other firearms,
including a nine-millimeter in his possession,” the nine-millimeter was in defendant’s
home, confessions are frequently recanted or the subject of motions to suppress, and the
search warrant was limited to specific information and not to conduct a general
exploratory search. It thus affirmed the magistrate’s finding this provided probable cause



raise it in his motion to suppress evidence. (People v. Williams, supra, 20 Cal.4th at
p. 136.)

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to support the search warrant. Based on the evidence before us, we agree there was
probable cause to issue the search warrant.
         Accordingly, we conclude the magistrate did not err in finding probable cause to
issue the search warrant, and the trial court did not err in denying defendant’s motion to
quash.
                                               II
                                     Motion to Suppress
         In his motion to suppress, defendant contended the hydrocodone pills should be
suppressed because they were not described in the search warrant.7 The People argued
the pills could be seized as recognized contraband when they came into plain view of the
searching officer. Defendant argued the officers “went searching through boxes until
they found something” because they did not find any electronics. We conclude the
officer acted reasonably in opening the container where the pills were discovered.
         A defendant may move to suppress evidence obtained as the result of an
unreasonable search or seizure. (§ 1538.5, subd. (a)(1)(A)-(B).) In reviewing the trial
court’s denial of a suppression motion, we consider the record in the light most favorable
to the trial court’s ruling and defer to the trial court’s factual findings, if supported by
substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979.) Any conflicts in the
evidence are resolved in favor of the trial court’s order. (People v. Limon (1993)
17 Cal.App.4th 524, 529.) We exercise our independent judgment to determine whether,




7       On appeal, defendant argues the search of the tin container was unauthorized
because Gillespie testified he was looking for “SD cards, memory cards that can go into
cameras or camcorders” when he opened the tin container and cell phones and cell phone
information (as opposed to cameras or camcorders) were authorized by the search
warrant. However, as we have repeatedly noted, defendant cannot make this argument
for the first time on appeal. (See Auer, supra, 1 Cal.App.4th at pp. 1664, 1670; Williams,
supra, 20 Cal.4th at pp. 119, 136.)

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on the facts found, the search or seizure was reasonable under the Fourth Amendment of
the United States Constitution. (Tully, supra, 54 Cal.4th at p. 979.)
       “[W]hen a search is made pursuant to a warrant, the search and seizure are limited
by the terms of the warrant. Only the premises described in the warrant may be searched,
and only the property described in the warrant may be seized . . . . [Citation.]” (People
v. Williams (1988) 198 Cal.App.3d 873, 888.) However, contraband “ ‘falling in the
plain view of an officer who has a right to be in a position to have that view [is] subject to
seizure and may be introduced in evidence.’ [Citation.]” (Ibid., quoting Harris v. United
States (1968) 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069]; see also People v. Diaz (1992)
3 Cal.4th 495, 563 [officers could seize lidocaine found in bedroom closet while looking
for documents listed in the warrant because it came into plain sight as a result of their
efforts].) Additionally, we “examine the lawfulness of a search under a standard of
objective reasonableness without regard to the underlying intent or motivation of the
officers involved. [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 168.) We
“simply ask[] ‘whether the police confined their search to what was permitted by the
search warrant.’ [Citation.]” (Ibid.) Thus, the only question before us is whether it was
reasonable for Gillespie to look in the container.
       Here, the search warrant included as items that could be seized, “Cell phones,
Voice mail messages any and/or all electronically stored data, including but not limited
to, the assigned cellular telephone number, e-mail address, names and/or nicknames and
associated telephone numbers listed in the ‘Phone Book’ or ‘Contacts’, dates, times and
telephone numbers of recent call activity, text messages, photographs and videos.” The
trial court found the container Gillespie opened “appear[ed] to be someplace where
electronic equipment could have been concealed” and deputies “had a lawful right to
open up closed containers within the house to look for microchips or SIM cards or
something along those lines.” Substantial evidence supports this finding. Accordingly,
we conclude Deputy Gillespie acted lawfully when he opened the container looking for

                                             11
“digital evidence,” and it was proper for the trial court to deny the motion to suppress
evidence located therein.
       In sum, the trial court did not err in denying defendant’s motion to suppress
evidence, to quash the search warrant, and to traverse the search warrant.
                                      DISPOSITION
       The judgment is affirmed.



                                                        HOCH          , J.



We concur:



      BLEASE         , Acting P. J.



       BUTZ         , J.




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