Filed 4/20/15 P. v. Williams CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065513

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247110)

DONALD D. WILLIAMS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

R. Walsh, Judge. Affirmed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
       Donald Williams was charged with two counts of child abuse (Pen. Code, § 273a,

subd. (a),1 counts 1 & 2) and one count of possession of marijuana for sale (Health &

Saf. Code, § 11359, count 3). The information alleged, as to count 3, that Williams was

armed with a .45 caliber handgun and a .22 rifle within the meaning of section 12022,

subdivision (a)(1). Williams filed a motion to suppress evidence, pursuant to section

1538.5, and a motion to quash the search warrant. The motions were heard based on the

evidence presented at the preliminary hearing, and both motions were denied.2 Williams

appeals from the orders denying his motions to suppress and to quash the warrant.

                                             I

                                          FACTS

       A. The Warrantless Search

       On the morning of March 23, 2013, Juanita Jones called 911 to report there were

two black males selling narcotics at a blue tri-unit apartment complex next to a liquor

store on Poplar Street in San Diego, California, and that males at that location had




1      All further statutory references are to the Penal Code unless otherwise specified.

2       However, after hearing the evidence at the preliminary hearing, the court bound
Williams over only on count 3 and the enhancing allegations appended to that count.
After his renewed motions to suppress and quash were denied, the prosecution filed an
amended information adding a count of carrying a concealed weapon (§ 25400), and
Williams entered into a plea agreement pursuant to which he agreed to plead guilty to the
latter count in exchange for a dismissal of count 3, with the further agreement that he
would receive probation and, after two years of successful probation, would be allowed
to withdraw his plea to the felony and to plead to misdemeanor violation of section 496.

                                             2
previously threatened to shoot her. She also stated the building had security cameras. No

information about the height, weight, stature, or clothing of the suspects was reported.

       San Diego Police Sergeant Sharki and Officers McAndrew and Creazo responded

to the scene a few minutes later. They located the blue apartment building and observed

there were high definition surveillance cameras mounted on the roof, which can be

employed by narcotics dealers to see the comings and goings of police and potential

customers. Police had received previous complaints about narcotics dealings at that

location.

       The building consisted of three individually addressed apartment units (4220,

4222 and 4224 Poplar Street, and the land on which the building sat was surrounded by a

fence made of differing materials (wrought iron, chain link and wood, depending on the

location), and all three units, as well as the front portion of the apartment complex, were

visible from the street (as well as from the parking lot of a liquor store) through the

wrought iron fence. Each apartment had a front door facing the liquor store parking lot

and a back door that led to a common back walkway. There was nothing separating the

back walkway from the front yard area. There was also a detached garage in the back of

the building, connected by a breezeway, and between the residences and garage was an

"inlet" not visible from the street. At the rear of the building is a public alleyway

separated from the property by a five-to-six-foot fence.

       Sergeant Sharki and Officer Creazo went to the public alleyway in back, where

they were later joined by Officer McAndrew. Williams saw the officers and challenged

them, asking what they were doing there. Creazo, who is about 6'3" or 6'4," could see

                                              3
over the fence but Sharki, who stands about 5'10," could only see Williams's eyes. The

officers told Williams they wanted to speak with him inside the grounds of the complex

but he refused and walked away. The officers were concerned when Williams walked

away because they did not know if he was retrieving a weapon or going to discard drugs

or weapons.

      Williams disappeared momentarily and then returned with a phone to where the

officers were standing and told them he had the manager on the phone if they wanted to

speak to the manager. The officers replied they did not want to speak to the manager but

instead wanted to speak to him. Williams declined and left the back area. Officers

Creazo and McAndrew also left the alleyway where they had spoken to Williams, but

Sharki remained, although he stepped out of sight so that if Williams returned he would

think Sharki left with the others. Williams then reappeared, looked around to see if

anyone was watching, and then put his hand in his pocket and then reached with that

hand toward an open window of 4222 Poplar, and a hand inside reached out and

contacted his hand. Williams then walked away.

      Creazo, after hearing Sharki state over his radio that he had seen a hand-to-hand

transaction, jumped over the wrought iron fence separating the apartments from the

liquor store parking lot, and opened the gate to allow McAndrew inside the fence.

Williams was upset the officers had entered the yard, and asked what they wanted and

why they were in his yard. They handcuffed Williams, conducted a pat-down search for

weapons, obtained his permission to search his person for identification and for anything

illegal he was carrying, and put him in a patrol car. They found a credit card in the name

                                            4
of Laura Eaker. After Williams told them it belonged to his girlfriend with whom he

lived and that she was inside the 4224 Poplar Street apartment, officers knocked and

Eaker answered. She confirmed he had permission to have the card but then became

uncooperative and closed the door.

       Additional officers arrived and did a "cursory" security check of the area inside the

fence because the initial report indicated there were two males involved in narcotics sales

and had mentioned a firearm. Officers found a second black male, Mr. King, in the back

covered patio area. The patio area, a common area available to everyone in the complex,

was sheltered only by a wood roof and had no fencing or anything else separating it from

the open-air back walkway. King was sitting on a couch looking at some monitors,

which showed four screens with seven "feeds" from the surveillance cameras. King said

he did not live there but was visiting to get some papers signed.

       From the walkway, officers were able to see into the patio area. They saw, in

plain view in the patio area, what appeared to be a handgun (which turned out to be a BB

gun), as well as a container of marijuana, a bong, a stun gun, and a replica rifle. They

also noticed the garage door was reinforced and there was electrical wiring running into

the garage, raising suspicions the garage was being used to grow marijuana, because it

takes a lot of power to grow marijuana indoors.3

       An interview with Williams's landlady was admitted into evidence. The landlady's

interview confirmed all tenants had equal access to the covered patio area, which was a


3      Police had also noticed, on the back walkway, plastic pots and pinto beans (which
can also facilitate growing marijuana) and a "Grow Bible."
                                             5
common area, and Williams had no authority to exclude other tenants from that area.

Williams's brother, who lived in the apartment next door to Williams, also testified the

people living at the complex had access to the yards inside the fence and that the covered

patio area contained furnishings belonging to both Williams and the landlady.

       B. The Warrant

       Officer McAndrew subsequently went to a police substation to apply for a

telephonic warrant. In this application, McAndrew described Jones's 911 call, the

configuration of the property, Williams's detention, and the items discovered in plain

view on the walkway and patio. He did not mention officers had been required to jump

the fence to detain Williams, or that officers had been on site for several hours already.

       After securing the warrant, officers searched Williams's apartment and the garage,

and found a loaded .45 caliber gun, a rifle, a substantial quantity of marijuana, a digital

gram scale, and baggies.

                                              II

                                  LEGAL STANDARDS

       A. General Principles

       The Fourth Amendment protects from unreasonable search and seizure only those

areas in which a person has a reasonable expectation of privacy. (People v. Freeman

(1990) 219 Cal.App.3d 894, 900; California v. Greenwood (1988) 486 U.S. 35, 39-40.)

To claim a Fourth Amendment protection, therefore, a defendant must manifest not only

his or her own subjective expectation of privacy in the particular place, but that the



                                              6
expectation must be one society is prepared to recognize as reasonable. (People v.

Camacho (2000) 23 Cal.4th 824, 830-831 (Camacho).)

       B. Standard of Review

       " ' "An appellate court's review of a trial court's ruling on a motion to suppress is

governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial

court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies

the latter to the former to determine whether the rule of law as applied to the established

facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these

inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's

resolution of the first inquiry, which involves questions of fact, is reviewed under the

deferential substantial-evidence standard. [Citations.] Its decision on the second, which

is a pure question of law, is scrutinized under the standard of independent review.

[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is

however predominantly one of law, . . . is also subject to independent review." ' "

(People v. Ayala (2000) 23 Cal.4th 225, 255.)

                                               III

                                         ANALYSIS

       A. Motions and Rulings

       Williams moved to suppress the materials seized from the patio, the yard, and the

apartment, arguing the entry into the fenced yard, when Officer Creazo jumped over the

locked wrought iron fence and opened the gate to allow McAndrew inside, was a

warrantless entry that was itself a violation of the Fourth Amendment, and any materials

                                               7
obtained during that initial entry should be suppressed. He also asserted that, because the

resulting search warrant for the apartment depended on information obtained during the

initial illegal entry into the yard, any result of the search pursuant to that warrant was the

fruit of the poisonous tree and should also be suppressed. He also argued the search

warrant should be quashed because it was the product of omissions of material facts and

inclusion of false facts. The prosecution opposed both motions.

       The motions were heard in connection with Williams's preliminary hearing and

were based on the evidence introduced at that hearing. The court found, as to the search

warrant, the warrant was not obtained based on false statements, and any facts omitted

from the application were not material, and therefore denied the motion to quash the

search warrant. The court also found, as to the initial entry into (and subsequent

observations around) the common areas, although the officers did enter into the property

and move about the common areas without permission, the absence of permission for the

entry and sweep of the exterior areas was not "legally significant" because Williams had

no reasonable expectation of privacy in the outside areas the officers entered and

inspected. Accordingly, the court denied the motion to suppress.

       B. The Motion to Suppress Evidence Found During the Pre-warrant Activities

       Williams argues his motion to suppress should have been granted because (1)

Sharki's observations of Williams's furtiveness and possible drug transaction (on which

officers partly relied for the subsequent entry into the yard) themselves violated the

Fourth Amendment, and (2) the entry into the locked enclosure surrounding the common

area required either a warrant or exigent circumstances, and neither were present here.

                                              8
       Sharki's Observations

       We are not persuaded by Williams's claim that Sharki's observations over the

fence violated Williams's Fourth Amendment rights. An officer's observations, from a

vantage point where he or she is entitled to be, do not amount to a search in violation of

the Fourth Amendment. (Camacho, supra, 23 Cal.4th at pp. 831-832 [police

observations while standing in place where they had right to be not a search in

constitutional sense].) As the United States Supreme Court explained:

          "That the area [where the defendant was located when observed] is
          within the curtilage does not itself bar all police observation. The
          Fourth Amendment protection of the home has never been extended
          to require law enforcement officers to shield their eyes when passing
          by a home on public thoroughfares. Nor does the mere fact that an
          individual has taken measures to restrict some views of his activities
          preclude an officer's observations from a public vantage point where
          he has a right to be and which renders the activities clearly visible.
          [Citation.] 'What a person knowingly exposes to the public, even in
          his own home or office, is not a subject of Fourth Amendment
          protection.' [Quoting Katz v. U.S. (1967) 389 U.S. 347, at p. 351.]"
          (California v. Ciraolo (1986) 476 U.S. 207, 213.)

       Williams does not dispute Sharki was standing in a place he was entitled to

stand—a public alleyway—and was able to see through or over the fence to observe

Williams's actions while he stood outside his abode and in a common area accessible to

all tenants. Peering over a fence does not violate the reasonable expectation of privacy

protected by the Fourth Amendment. As explained in People v. Chavez (2008) 161

Cal.App.4th 1493, 1502:

          "Looking over a fence is not conduct that 'too closely resembles the
          process of the police state.' [Quoting Lorenzana v. Superior Court
          (1973) 9 Cal.3d 626, 629.] Indeed, courts in various other
          jurisdictions agree that this sort of conduct does not violate a

                                             9
          reasonable expectation of privacy. (See, e.g., Sarantopolos v. State
          (Fla. 1993) 629 So.2d 121 [officer standing on tip toes to look over
          six-foot fence did not search the enclosed yard: the fence created no
          reasonable expectation of privacy since it shielded the yard from
          view of only those not tall enough to see over it]; State v. Corra
          (1987) 88 Or.App. 339 . . . [officer's view of marijuana while
          standing on a rock to peer over a six-foot fence was not search:
          many people were tall enough to see what he saw over the fence];
          People v. Smola (1988) 174 Mich.App. 220 . . . [officers observed
          marijuana by standing on car bumper and looking over a six-foot
          fence was not a search; Smola had no reasonable expectation that the
          fence would shield his backyard from observation].)"

       The California cases are in accord. See, e.g., Dillon v. Superior Court (1972) 7

Cal.3d 305, 311 [backyard vulnerable to observation from a neighbor's second-story

window carries no reasonable expectation of privacy and is, in essence, open to public

view]; People v. Claeys (2002) 97 Cal.App.4th 55, 59 [no expectation of privacy to

marijuana plants in backyard visible over a fence from neighbor's yard]; People v. Arroyo

(1981) 120 Cal.App.3d Supp. 27, 30 [finding marijuana plant in plain sight where officer

looked around tree from common carport area].)

       Williams asserts this case should be controlled by People v. Lovelace (1981) 116

Cal.App.3d 541. In Lovelace, the officer was able to view the contraband by coming

within an inch or two of a six-foot-high fence that the officer "could neither see over nor

under," and peering through a knothole. (Id. at p. 547.) The court noted the fence, which

surrounded the backyard of a private residence and had been "repaired and tightened up

in order to shield the backyard from public view . . . for purposes of insuring privacy" (id.

at pp. 548-549), created an expectation of privacy that was both subjectively and

objectively reasonable. (Ibid.) The court concluded that because the officer was only


                                             10
able to view the contraband by standing at "a vantage point not expected to be used by

the public at large," the search violated the defendant's reasonable expectation of privacy.

(Id. at p. 554.) We need not definitively determine whether Lovelace remains viable

because it is distinguishable.4 Here, Sharki merely stood on his tiptoes to obtain a

vantage point over a fence that his taller partner (standing in a public alley way) could

readily obtain, not a fence an officer "could neither see over nor under." (Lovelace,

supra, 116 Cal.App.3d at p. 547.) Moreover, the area into which Sharki peered was not

"[tightly sealed] up in order to shield the backyard from public view . . . for purposes of

insuring privacy" (id. at pp. 548-549), but instead was an amalgam of materials

permitting easy views into the area where Williams stood during the hand-to-hand

exchange. Most importantly, Williams was in a common area shared with multiple

residences, not a private yard so tightly sealed from public view that his expectation of

privacy can be deemed objectively reasonable. (People v. Shaw (2002) 97 Cal.App.4th

833, 839 [defendants "going out into the common area of an apartment complex and

placing drugs in a hole in the ground is simply not the sort of activity reasonably tied to

any proper expectation of privacy"] (Shaw).) We conclude Sharki's observations did not

violate Williams's Fourth Amendment rights.




4       Lovelace was decided before voters in 1992 approved Proposition 8, which forbids
the courts of this state to order the exclusion of evidence at trial as a remedy for an
unreasonable search and seizure unless exclusion is required by the federal Constitution
as interpreted by the United States Supreme Court. (Camacho, supra, 23 Cal.4th at
p. 830.)
                                               11
       The Entry Into the Locked Yard

       Williams asserts that, because officers entered the shared common area by

jumping over a locked gate, that entry constituted a trespass onto the curtilage

surrounding his apartment for which a warrant was required. As a result, he contends all

subsequent observations by the officers from their vantage point inside the fenced area

(e.g. the contraband, weapons and paraphernalia found in the patio area) should have

been suppressed as a product of a warrantless entry.

       The courts of this state, as well as the federal courts, have increasingly recognized

that because the touchstone of the Fourth Amendment is whether the defendant has a

reasonable expectation of privacy in the areas into which the police enter, the concepts of

a curtilage in the context of the shared common areas in multi-unit complexes require

recognition that such common area curtilages have a lowered expectation of privacy than

might the same space surrounding a single family residence. (See, e.g., Shaw, supra, 97

Cal.App.4th at p. 835 [it is a "truism of apartment dwelling . . . that what might be one

person's curtilage, in the context of a private single occupancy residence, becomes less

subject to privacy expectations in the context of the grounds of a multi-unit apartment

complex"], fn. omitted.) When assessing whether police conduct offends the Fourth

Amendment, the " 'existence of a physical trespass is only marginally relevant to the

question of whether the Fourth Amendment has been violated . . . .' [Quoting U.S. v.

Karo (1984) 468 U.S. 705, 712-713.] Rather, the relevant inquiry is whether entry is

made into an area impliedly open to the public." (People v. Chavez, supra, 161

Cal.App.4th at p. 1500.)

                                             12
       It appears that, on the issue of whether an individual can have a reasonable

expectation of privacy in the common or shared areas of a multi-unit residential dwelling,

"most circuit courts have found that 'shared' or 'common' areas in apartment complexes or

multi-unit dwellings, such as hallways, entryways, and basements, are not areas over

which an individual tenant can have a reasonable expectation of privacy." (U.S. v.

Maestas (10th Cir. 2011) 639 F.3d 1032, 1038.) Thus, the court in U.S. v. Nohara (9th

Cir. 1993) 3 F.3d 1239, 1242 held a tenant in an apartment complex had no reasonable

expectation of privacy in the common area hallway outside his apartment, and the court

in U.S. v. Acosta (3d Cir. 1992) 965 F.2d 1248, 1254-1257 held the defendant did not

have a reasonable expectation of privacy in the backyard of a three-story, multi-unit

apartment building shared by the tenants and landlord and "the fact that defendants had

permission to use the yard did not create any legitimate expectation of privacy in it." As

the court explained in U.S. v. Miravalles (11th Cir. 2002) 280 F.3d 1328, 1332, apartment

tenants "have little control over those areas, which are available for the use of other

tenants, friends and visitors of other tenants, the landlord, delivery people, repair

workers, sales people, postal carriers and the like. [Citations.] The reasonableness of a

tenant's privacy expectation in the common areas of a multi-unit apartment building

stands in contrast to that of a homeowner regarding the home and its surrounding area,

over which the homeowner exercises greater control."

       It appears most courts have found this reasoning applies even to those multi-unit

complexes containing just a few units, as present here. (See, e.g., U.S. v. McCaster (8th

Cir. 1999) 193 F.3d 930, 931-933 [holding a tenant of a two-unit complex had no

                                              13
reasonable expectation of privacy in the shared hall closet of the dwelling, accessible by

two other tenants and the landlord]; U.S. v. McGrane (8th Cir. 1984) 746 F.2d 632, 634

[holding the defendant had no Fourth Amendment right to privacy in the basement of a

four-apartment residence, accessible to all tenants and the landlord, and fact that the

officer "gained entry to the basement as an uninvited person does not affect this analysis.

Our inquiry focuses on [defendant's] expectations of privacy, not the propriety of [the

officer's] conduct. . . . [T]he agent's status as a trespasser was 'of no consequence' in

determining whether there was an expectation of privacy.].) For example, in U.S. v.

Fields (2d Cir. 1997) 113 F.3d 313, police entered a fenced-in rear yard and from there

went into the fenced-in side yard of a three-family apartment house and peered into a

window, the shade of which was partially raised. They looked into the window and saw

the defendants bagging what appeared to be crack cocaine. (Id. at pp. 317-318.)

Rejecting the defendant's claim that these observations constituted information obtained

by a search violating the Fourth Amendment, the Fields court reasoned that:

          "Although society generally respects a person's expectations of
          privacy in a dwelling, what a person chooses voluntarily to expose to
          public view thereby loses its Fourth Amendment protection.
          [Citation.] Generally, the police are free to observe whatever may
          be seen from a place where they are entitled to be. [Citation.] [¶] In
          the case at hand defendants conducted their illegal activities in plain
          view of a bedroom window facing onto the side yard—a common
          area accessible to the other tenants in the multi-family apartment
          building—in which they had no legitimate expectation of privacy.
          [Citation.]. . . Their illegal activities . . . could therefore readily be
          seen by anyone standing in the side yard. [¶] . . . [D]efendants assert
          the police were trespassing by being in the side yard and that
          therefore any observations made from that vantage point were
          automatically unlawful. Although police observations made when
          trespassing are usually improper, it is not the trespass itself which

                                              14
          renders them unlawful. Instead, such observations generally violate
          Fourth Amendment rights simply because those observed cannot
          reasonably anticipate observation from vantage points obtained by
          trespassing. In such circumstances, society frequently respects as
          reasonable the expectation that such observations will not occur.
          The ultimate focus of Fourth Amendment analysis remains whether
          the defendant had a reasonable expectation of privacy in the place
          searched. [Citation.] Here, by conducting their activities in plain
          view of an area where others were free to come and go, defendants
          failed to demonstrate such an expectation." (Id. at pp. 321-322,
          italics added.)

       California courts have adopted a similar approach. For example, in Shaw, supra,

97 Cal.App.4th 833, police officers observed (over a fence) the defendant twice entering

the backyard of a four-unit apartment complex and retrieving something from the ground

near the fence. Police entered the backyard through a break in the fence and found a

piece of wood covering a hole that contained several pieces of rock cocaine. (Id. at

pp. 836-837.) This court, rejecting the defendant's argument that he had a reasonable

expectation of privacy in the backyard area violated by the entry into the yard, explained

"what might be one person's curtilage, in the context of a private single occupancy

residence, becomes less subject to privacy expectations in the context of the grounds of a

multi-unit apartment complex, as in this case. [¶] It is upon this lowered expectation of

privacy in a common area, as opposed to a private area, that we distinguish the case

before us from [Camacho. supra, 23 Cal.4th 824] . . . , which held an intrusion by police

into the curtilage of a residence violated the occupant's legitimate privacy expectations."

(Id. at pp. 835-836, fns. omitted.) This court reasoned that "[t]he dispositive factor here

is that [the defendant] was not in exclusive control of the area in which he secreted the

narcotics. 'One of the main rights attaching to property is the right to exclude others,

                                             15
[citation] and one who owns or lawfully possesses or controls property will in all

likelihood have a legitimate expectation of privacy by virtue of this right to exclude.'

[Quoting Rakas v. Illinois (1978) 439 U.S. 128, 143, fn. 12.] [The defendant], who had

the burden on the issue, introduced no evidence of any right to exclude others from the

common area of the apartment complex." (Id. at pp. 839-840, fn. omitted.)

       We recognize that other federal and state courts, when addressing whether an

apartment dweller has a reasonable expectation of privacy in common areas open to other

tenants and their invitees that is protected by the Fourth Amendment, appear to reach

conclusions contrary to the previously cited authorities. (See, e.g., Fixel v. Wainwright

(5th Cir. 1974) 492 F.2d 480, 484 [concluding apartment dweller had reasonable

expectation of privacy in backyard when it was "not a common passageway normally

used by the building's tenants for gaining access to the apartments. . . [citation] [n]or . . .

open as a corridor to salesmen or other businessmen who might approach the tenants in

the course of their trade"]; U.S. v. King (6th Cir. 2000) 227 F.3d 732, 749-750 [tenant in

two-unit apartment building has a reasonable expectation of privacy in the common areas

of the building not open to the general public and in area shared only by the duplex's

tenants and the landlord]; People v. Killebrew (1977) 76 Mich.App. 215, 217-218

[hallway shared by tenants in a private multiple-unit dwelling is private space intended

for use of occupants and their guests in which the occupants have a reasonable

expectation of privacy].) We nevertheless are convinced that the approach adopted by

this court in Shaw, as well as by the numerous federal courts previously cited, is the

correct approach to evaluating the facts of this case.

                                               16
       Here, Williams lived in a three-unit complex, the exterior areas of which,

including the area into which Creazo and McAndrew "trespassed" to make the initial

detention of Williams, were largely open to public view from the street. Moreover, all of

the tenants and their invitees, as well as the landlady, had full access to all of the common

areas, including the patio and back walkway where the evidence was spotted by the

officers, and there was no evidence Williams made any effort to exclude those other

tenants, their invitees, or the landlady from that patio and back walkway. We conclude,

on these facts, Williams did not have an objectively reasonable expectation of privacy in

those areas, and therefore the trial court correctly refused to suppress the observations

made by police within those areas.

       C. Motion to Quash the Search Warrant and Suppress Evidence Found in

Apartment

       Williams argues the search warrant should have been quashed because the

affidavit presented to the magistrate contained material omissions and deliberate

misrepresentations.5 The framework for challenging a warrant is set forth in Franks v.

Delaware (1978) 438 U.S. 154. A defendant must first show, by a preponderance of the

5       Williams also argues on appeal the warrant should be quashed because affidavit
contained illegally obtained information—Sharki's initial observations and the
subsequent observations by the officers after their entry into the locked yard—which
requires this court to delete that information and then test the validity of the warrant
based on the remaining legally obtained information. (People v. Chapman (1984) 36
Cal.3d 98, 113, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856,
867; People v Weiss (1999) 20 Cal.4th 1073, 1075-1081.) However, because we have
rejected his claims and concluded those searches did not violate his Fourth Amendment
rights, we necessarily reject Williams's subsidiary claim that the information obtained by
those officers must be disregarded in testing the validity of the warrant.

                                             17
evidence, the affidavit in support of the warrant contained statements that are deliberately

false or made in reckless disregard of the truth, and mere negligent statements may not be

challenged. (Id. at pp. 155-156.) The defendant must also show that the affidavit's

remaining contents, after the false statements are excised, are insufficient to support a

finding of probable cause. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.)

A defendant who challenges a search warrant based on an affidavit containing alleged

omissions must satisfy the same standard (People v. Luttenberger (1990) 50 Cal.3d 1, 15,

fn. 4)6 and must show the omissions were material, in light of the totality of the

circumstances, to the determination of probable cause. (People v. Bradford (1997) 15

Cal.4th 1229, 1297.)

       In the proceedings below, Williams contended the affidavit relied on the following

false facts and culpable omissions: (1) Sharki claimed to have seen a hand-to-hand

transaction but that claim should be disbelieved; (2) McAndrew stated Williams tried to

hide from the officers when in fact he did not; (3) McAndrew stated Sharki had seen an


6       That is, the defendant bears the burden of showing the omission was material and
attributable to culpable conduct. (See, e.g., People v. Crabb (1987) 191 Cal.App.3d 390,
393, fn. 3 [requirement for showing willfulness or recklessness applies to omissions],
cited with approval in People v. Luttenberger, supra, 50 Cal.3d at p. 15, fn. 4.) Although
People v. Kurland (1980) 28 Cal.3d 376, 387-388 arguably stated a different approach for
treating omissions, Kurland was decided before the adoption of Proposition 8 and is
therefore of doubtful continuing vitality. (See People v. Luevano (1985) 167 Cal.App.3d
1123, 1127-1129.) Instead, the Franks approach is to be applied to omissions (People v.
Luttenberger, supra), and as the court in U.S. v. Allen (8th Cir. 2002) 297 F.3d 790, 795
explained, "To prevail on a Franks claim based on omissions of fact, [the defendant]
must prove first that facts were omitted with the intent to make, or in reckless disregard
of whether they make, the affidavit misleading, and, second, that the affidavit, if
supplemented by the omitted information, could not support a finding of probable cause."
(Italics added.)
                                              18
object transferred when Sharki had only seen a hand-to-hand contact; (4) McAndrew did

not mention Williams stated he did not want the officers to enter the property or that

McAndrew jumped a fence to get into the property; (5) McAndrew stated Williams was

carrying a two-way radio and that someone inside Williams's apartment was carrying its

matching radio but did not state the person inside holding the matching two-way radio

was Williams's four-year-old son; and (6) McAndrew did not tell the magistrate the

configuration of the common area or how long officers had been inside the common area

before they contacted the magistrate. The court found, as to the search warrant, the

warrant was not obtained based on false statements as to Sharki's belief he saw a

narcotics handoff, but instead found Sharki's testimony about what he saw to be credible.

As to the facts allegedly omitted from the application, the court concluded none of the

omitted facts were material to whether there was probable cause to issue the warrant.

Accordingly, the court denied the motion to quash the search warrant.

       Williams on appeal claims the motion to quash should have been granted because,

if the above allegedly false facts are corrected and the above omitted facts are inserted

into the affidavit, there would not have been probable cause to issue the warrant.7


7       On appeal, Williams goes well beyond the facts raised at trial and identifies a
laundry list of additional "omitted" facts this court should consider when assessing
whether the warrant should have been quashed, arguing "[i]t is reasonable to infer, from
the scope and number of errors and omissions in the McAndrew affidavit, that he was
either intentionally or recklessly tailoring his statements to [obtain the warrant]." We
decline to consider these newly raised claims because it does not appear these were
interposed below. Because the parties did not litigate this claim, the trial court
necessarily was deprived of the opportunity to decide the peculiarly factual issue of
whether these omissions were made reasonably (or even negligently), or were instead
recklessly inaccurate or intentionally misleading (as required under the Franks approach,
                                               19
(People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 988-989.) We are not persuaded.

The affidavit, after replacing the "false" fact that Williams "tried to hide" with the true

fact that Williams "walked away" when officers asked to speak with him, showed a

citizen informant reported two black males were selling narcotics at a blue building next

to a liquor store and had bragged to her about having security cameras that would prevent

police from catching them; police arrived at the location and confirmed the building and

security cameras matched the description given by the informant; police contacted

Williams, who walked away from them; Sharki observed Williams engage in an apparent

narcotics transaction with someone inside 4222 Poplar Street; police detained Williams

and found a two-way radio on his person and, when they knocked on the door of 4224

Poplar Street, they saw the matching two way radio inside the apartment; a sweep of the

common areas located a sophisticated surveillance system with multiple high-definition

cameras providing a live feed to multiple screens; police found weapons in plain view as

well as marijuana in the common areas; and, police found equipment of a kind commonly

used to grow marijuana along with a "Cannabis Grow Bible" and power cords running

from an exterior source into a detached garage.

       We are confident the observed facts, standing alone and as corroborative of the

citizen informant's tip (People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759,

767-768 [probable cause may be supplied by information from a citizen informant, and

"necessary showing of reliability in the case of a citizen informant 'is significantly less


see fn. 6, ante), and Williams cannot obtain reversal based on a theory never brought to
the trial court's attention. (See, e.g., People v. Lilienthal (1978) 22 Cal.3d 891, 896.)

                                              20
than that demanded of a police informer" and "absent circumstances casting doubt on

their reliability, citizen informants should be considered reliable"]), provided substantial

probable cause on which to issue the search warrant.

       D. The Unlawful Detention

       Williams contends he was unlawfully seized in the common areas of his building

because police lacked probable cause to detain him. We conclude Williams cannot raise

this claim on appeal.

       "[A] motion to test the validity of a search or seizure must be raised in the superior

court to preserve the point for review on appeal. [Citations.] A motion made on the

wrong ground in the superior court does not preserve the issue." (People v. Miranda

(1987) 44 Cal.3d 57, 80, disapproved on other grounds in People v. Marshall (1990) 50

Cal.3d 907, 933, fn. 4.) "[I]t would be wholly inappropriate to reverse a superior court's

judgment for error it did not commit and that was never called to its attention." (People

v. Lilienthal, supra, 22 Cal.3d at p. 896, fn. omitted.) All parties face the obligation of

presenting all their testimony and arguments relative to the question of the admissibility

of evidence at trial or by pretrial motion, and " '[t]o allow a reopening of the question on

the basis of new legal theories to support or contest the admissibility of the evidence

would defeat the purpose of Penal Code section 1538.5 and discourage parties from

presenting all arguments relative to the question when the issue of admissibility of

evidence is initially raised.' " (People v. Shuey (1975) 13 Cal.3d 835, 847, disapproved

on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389-390, fn. 4.)



                                             21
          Williams's papers filed in support of the motion before the trial court, and the

evidence and arguments made at the hearing, solely addressed the issues whether the

warrantless search of the common areas, and the search warrant and subsequent search

pursuant to that warrant, violated the Fourth Amendment. No issue was raised in any

manner suggesting the detention was unjustified at its inception or in its duration.

Although, broadly stated, a detention and search of public and private areas fall within

the protection against illegal searches, their resolutions implicate different facts and

require different analyses. We therefore conclude Williams waived the issue of whether

the detention was unlawful. (See People v. Williams (1999) 20 Cal.4th 119, 130-134;

People v. Lopez (1978) 81 Cal.App.3d 103, 108 ["[O]bjections to evidence must state

specific grounds for exclusion, and the grounds cannot be changed on appeal [citation].

[¶] The issue, not having been preserved either by proper objection at trial or by pretrial

motion, is waived and may not be raised on appeal."]; People v. Turner (1994) 8 Cal.4th

137, 177, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555,

fn. 5.)

                                         DISPOSITION

          The judgment is affirmed.


                                                                              McDONALD, J.
WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.

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