• Search Warrants and Probable Cause
• Material Omissions in a Warrant Affidavit
• Stale Information in a Warrant Affidavit

The standard for a magistrate to issue a search warrant is finding that the warrant affidavit shows a “fair probability” that police will find contraband or evidence of a crime at a particular place.  The reviewing court’s duty, on the other hand, is simply to ensure the magistrate had a “substantial basis” for that conclusion.  Information in a warrant affidavit is not stale if tied by reoccurring events to the current search.  If so tied to the current search, the fact that a suspect’s prior convictions are not dated in the affidavit is irrelevant.

The following was included in a search warrant affidavit asking for permission to search defendant Robert Andrew Delgado’s house:  Defendant is a documented member of the Highland Park Criminal Street Gang in Los Angeles, where he is known by his gang moniker of “Loco.” His residence, located at 510 Toledo Street, is used as a gang “hangout,” where gang members can be found on a regular basis.  Defendant‘s criminal history includes four prior felony convictions; i.e., gang member with a gun, assault with a deadly weapon, carjacking, and possession of a controlled substance for sale (no dates are given).  In addition to extracting “taxes” from businesses, the Highland Park gang is known to have engaged in assaults, robberies, and murders; all used as a means of intimidation so that it can freely sell illegal guns and drugs without fear that others might report them to the police. 

On July 5, 2019, police officers were surveilling defendant’s residence.  This surveillance was prompted by the fact that crime attributed to the Highland Park gang had recently increased and the officers knew that many of the gang members would be hanging out there.  At about 7:15 p.m., the officers observed a black Lexus SUV stop in front of defendant’s residence.  Two of the vehicle’s occupants, recognized as Rodrigo Medina and Ruben Ruiz, went into the residence while the driver remained in the car.  The officers knew Ruiz to be a documented member of the Highland Park gang who was on active parole for armed robbery, and as such, was subject to search and seizure conditions.  Approximately three to five minutes after entering the residence, Medina and Ruiz were observed leaving the house and returning to the SUV.  Within a couple more minutes, defendant came out of his house and approached the SUV’s front passenger window. Defendant “leaned in close” through the window for a few seconds, and then returned to his residence.  The officers believed, based upon their training and experience, that defendant had possibly delivered narcotics and/or firearms to the occupants of the vehicle.  As the SUV drove away, officers stopped it.  Contacting the vehicle’s occupants, the driver was determined to be a gang associate while Medina and Ruiz were its passengers.  A search of the car resulted in the recovery of about $700 in cash, two illegal guns, and a half-pound of assorted drugs.  All the drugs, other than 1.49 grams of methamphetamine, were found on Medina.  The occupants of the vehicle were all arrested.  As a result of the above observations, Officer Larry Burcher sought and obtained a search warrant for the Toledo Street address.  In addition to all the facts and circumstances as described above, Officer Burcher included in his warrant application some personal information; i.e., that he had been a police officer for 28 years during which time he had conducted hundreds of investigations, and that he had been a supervising detective in charge of a gang impact team for six years.  Based upon all of the above, it was Officer Bucher’s opinion, as stated in the warrant affidavit, that defendant was supplying drugs and guns to his fellow Highland Park gang members for the purpose of furthering the gang’s criminal enterprise.  In his affidavit, Officer Burcher also asked for the magistrate’s approval “to search for cellular telephones and digital cameras that may ‘store or depict criminal street gang activity’; for ‘paraphernalia related to a criminal street gang’; and for photographs showing the residents involved in criminal gang activity.”  A magistrate determined that the warrant affidavit reflected sufficient probable cause and issued the warrant.  Upon executing the warrant, a “mobile phone” (cellphone?) was found in defendant’s residence.  The phone was found to contain videos of defendant “orchestrating nine beatings to initiate new members into the Highland Park gang.”  Defendant was arrested and charged in state court with a number of gang-related offenses.  The trial court denied defendant’s motion to suppress the evidence—including the cellphone and its contents—found during the execution of the search warrant at his house.  Defendant pled “no contest” to one count of assault by means of force likely to produce great bodily injury (P.C. § 245(a)(4)) and two counts of solicitation or recruitment of another person to participate in a criminal gang (P.C. § 186.26(a)). He also admitted gang and recruitment-of-a-minor allegations. (P.C. §§ 186.22(b)(1)(A), and 186.26(d).) (Presumably, defendant went to prison, although the Court doesn’t say.)  Defendant appealed.

The Second District Court of Appeal (Div. 8), in a split 2-to-1 decision, affirmed.  In his appeal, defendant raised two issues: (1) whether the warrant affidavit contained sufficient probable cause, and (2) whether Officer Bucher, as the affiant, omitted material facts by failing to specify the age of defendant’s prior felony convictions. 

(1) Probable Cause:  The standard for finding sufficient probable cause to support the issuance of a search warrant is well established.  As noted by the Court: “When magistrates consider a search warrant application, they must make a practical and commonsense decision about whether the affidavit shows a fair probability police will find contraband or evidence of a crime at a particular place. The reviewing court’s duty is simply to ensure the magistrate had a substantial basis for that conclusion. This standard is flexible and easy to apply.” (Italics added: Illinois v. Gates (1983) 462 U.S. 213, 238–239.) California follows this federal rule as established by the U.S. Supreme Court.  (People v. Souza (1994) 9 Cal.4th 224, 232–233.)  Defendant did not contest the legality of the car stop; only whether the illegal items recovered in the vehicle search could be tied to a conclusion that more such contraband would be found in defendant’s home.  A majority of the Court ruled that it could.  What we have here is a police officer with extensive training and experience in gang-related activities, observing defendant—who lived at a residence that was known to be a place where gangsters who trafficked in illegal guns and drugs often hung out—huddling with the occupants of a vehicle in which guns and dope are found immediately thereafter in a lawful search of that vehicle.  Based upon these observations, when coupled with the officer’s prior knowledge of defendant and his gang-related activity, the officer reasonably concluded that what he had observed was consistent with defendant bringing guns and/or drugs from his residence and giving it to the occupants of that vehicle.  This was sufficient for the officer (and the magistrate) to conclude that there was at the very least a “fair probability” that more guns and dope would be found in defendant’s house.  It was also reasonable to conclude that there was a fair probability that cellphone video evidence, depicting defendant’s gang-related activity, might also be found in the house. As summarized by the Court: “Together with the gang’s surge in criminality and the locale’s status as a busy gang hangout, there was probable cause to search it for guns, drugs, and other evidence of gang-related crime.”  In so concluding, the Court rejected defendant’s argument that because Officer Burcher could not actually see defendant give anything to the occupants of the vehicle, it was more probable that the guns and drugs recovered from the vehicle were already there.  The Court found that this argument did not make sense.  Per the Court: “The brevity and the waiting car suggested an in-person task. The guns and drugs (soon thereafter being found in the car) suggested what that task had been.”  After rejecting several other possible, but unlikely scenarios suggested by defense counsel (i.e., the vehicle’s occupants only wanted to check to see if defendant had contracted COVID-19, or that they were there to plan a drive-by shooting), the Court found that sufficient probable cause existed to believe that evidence of defendant’s drug, gun, and general gang-related activity would be found at the house to support the issuance of the search warrant. 

(2) Staleness of Defendant’s Prior Convictions:  In his affidavit, Officer Burcher listed four prior felony convictions sustained by defendant.  The dates these convictions occurred were not specified.  Defendant argued that by failing to include the dates of these convictions in the affidavit, Officer Burcher had omitted material information.  Also, upon noting the actual dates of the convictions (1999, 2003, 2008, and 2012), defendant argued that Officer Burcher intentionally failed to list the dates in order to conceal the staleness of the warrant’s information.  The Court rejected this argument, ruling that the prior conviction information in the affidavit was not stale, at least under these circumstances.  Specifically, the affidavit included information showing that four months earlier, a traffic stop refreshed police knowledge of defendant’s continuing membership in the Highland Park gang.  His gang had been criminally active in the most recent six months.  Defendant lived at a gang hangout where gang members continued to congregate up to the events reflected in this case, which is why police were watching when Medina and Ruiz showed up at defendant’s house. As such, “(f)resh events prompted the search warrant. Given defendant’s continuing gang-related activity, “(w)hether (defendant’s) convictions were old or new was immaterial.”  (Italics in original.)