Thursday, August 7, 2003
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Court of Appeal Rejects Good Faith Claim for ‘Stale’ Warrant
Div. Six Rules Officer Could Not Have Believed Probable Cause Present After 52-Day Delay
By DAVID WATSON, Staff Writer
An officer who waited 52 days after a drug buy to obtain and execute a search warrant for the seller’s residence could not have had an objectively reasonable belief the warrant established probable cause, this district’s Court of Appeal ruled yesterday.
The court reversed the conviction of Ricky Hulland for possessing marijuana for sale. Hulland pled no contest after Los Angeles Superior Court Judge C. Edward Simpson denied his motion to suppress the evidence found in the search, including about four ounces of marijuana.
Simpson agreed with Hulland’s contention that the information used to obtain the warrant was too old to supply probable cause, but ruled that Pasadena Police Officer Kevin Jackson had executed the warrant in good faith.
Exception Misapplied
Writing for Div. Six, Justice Steven Perren said Simpson misapplied the good faith exception, established by United States v. Leon (1984) 468 U.S. 897, to the rule requiring exclusion of evidence secured under a warrant insufficient to establish probable cause. Under Leon, Perren said, the officer’s reliance on a magistrate’s decision to authorize the warrant must be objectively reasonable for the exception to apply.
“This is not one of those doubtful or marginal cases in which the officer’s reliance on a warrant may be deemed objectively reasonable,” Perren explained. The justice conceded that staleness must be determined on a “case-by-case basis,” but he said it is “well settled that evidence more than four weeks old is generally considered too stale for the magistrate to issue a warrant...and that longer delays must be supported by evidence indicating that the criminal activity giving rise to the warrant has continued over a long period of time or that the nature of the activity supports the inference that the activity is ongoing....”
Jackson testified at the suppression hearing he had purchased “just under a pound” of marijuana from Hulland in late September of 2001. His experience, the officer told Simpson, led him to believe someone selling drugs in that quantity would be involved in continuing drug dealing.
Delay Not Explained
But Perren pointed out that the affidavit in support of the warrant did not mention the amount of drugs purchased. Jackson, he said, provided little explanation for the delay in obtaining the warrant, which was issued and executed in mid-November.
Though Jackson testified part of the delay was due to efforts to confirm Hulland’s address, the officer admitted he had obtained it from postal authorities a month before the search. Searches were conducted under the warrant at two locations, one of which turned out to belong to a different person with a similar name.
“[T]he totality of facts known to the officer would not lead a well-trained officer to reasonably believe that a delay of almost two months in seeking a warrant was justified,” Perren declared. “[T]here is no indication that Hulland ever sold marijuana prior to or subsequent to the controlled buy, or that he ever sold drugs out of his home.”
Hulland was arrested after the controlled buy, but those charges were dropped when police declined to identify the informant who arranged it.
Perren said no California cases have addressed the application of the good faith exception to a warrant based on stale information, but he cited federal court rulings from the Southern District of Ohio and the Third U.S. Circuit Court of Appeals which he described as “consistent with our decision.”
Federal Cases Cited
In the Ohio case, United States v. Bagford (2003) 255 F.Supp.2d 767, the court held the good faith exception applied where a warrant was based on information more than a year old. But the affidavit included an informant’s assertion that large shipments of drugs were being made to the location every few weeks.
“As we have noted, no such evidence was present here,” Perren observed. “Indeed, there was no evidence of continued activity and none linking either location to any criminal activity.”
In United States v. Zimmerman (2002) 277 F.3d 426, the justice pointed out, the Third Circuit rejected reliance on the good faith exception for a warrant based on information indicating that six months earlier the defendant had shown pornographic material on his computer to minors.
“To prevent the exception from swallowing the rule, application of the good faith exception must be limited in this context to those cases in which the staleness determination is a close one,” Perren explained. “This is not such a case.”
Justices Kenneth T. Yegan and Paul Coffee concurred.
Carl K. Osborne of Beverly Hills represented Hulland on appeal. Deputy Attorney General Michael W. Whitaker handled the appeal for the prosecution.
The case is People v. Hulland, 93 S.O.S. 4240.
Copyright 2003, Metropolitan News Company