People v. Martin

THE PEOPLE, Plaintiff and Appellant, v. DAVID EDWARD MARTIN, Defendant and Respondent.

C089082

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)

May 17, 2021

NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 18CF00383)

The People appeal from an order dismissing an information charging defendant David Edward Martin with 23 counts of possessing an assault weapon. The order dismissing was made after the trial court granted defendant's motion to quash the search warrant and suppress evidence under Penal Code section 1538.5. The People contend the trial court erred in granting the motion to suppress and dismissing the charges, as the magistrate had a substantial basis to find probable cause and properly issued the warrant. We agree. Accordingly, we conclude that the trial court erred and reverse the order of dismissal.¹

BACKGROUND

Defendant was charged with 23 counts of possessing an assault weapon (Pen. Code, § 30605, subd. (a)). Law enforcement officers found the guns at defendant's home during the execution of a search warrant. Defendant filed a motion to quash the search warrant and suppress evidence under Penal Code section 1538.5. Defendant contended the search warrant affidavit lacked probable cause because: (1) it was based on stale information; and (2) it did not present evidence defendant possessed equipment for gunsmithing. Defendant also argued the affiant was a federal agent and not a peace officer who could execute a warrant issued by a state court magistrate. The People countered: (1) the delay between the affidavit and the service of the warrant did not render it stale and negate the probable cause, particularly as the case involved firearms; and (2) the lack of evidence of gunsmithing tools did not negate the substantial basis for the issuance of the warrant. The People also argued the participation of federal agents did not invalidate the warrant.

The Affidavit

Special Agent Erik Crowder of the United States Department of Justice, Bureau of Alcohol, Tobacco, and Firearms (ATF) has been an ATF special agent for 16 years, has training in federal firearms laws and regulation, and has investigated, or participated in investigation, of at least 100 cases involving firearm and/or drug violations of state and federal laws, including cases involving manufacturing and possession of firearms.

In the course of his investigation of alleged bankruptcy fraud² committed by defendant, Agent Crowder learned defendant was purchasing de-milled firearm pieces. Agent Crowder believed defendant was purchasing the de-milled firearm pieces to rebuild machine guns, in violation of California law.³

Defendant was a retired Butte County deputy sheriff. Agent Crowder spoke with Captain Dutch from the sheriff's department. Captain Dutch "described [defendant] as a 'fringe' person who lives within a 'compound' with a 'crows nest.' " He also described defendant as a "firearms enthusiast." Captain Dutch was not aware of defendant having been in any trouble, and did not believe he was a threat.

A query to the California Automated Firearms System (AFS)⁴ database showed defendant had at least 87 firearms associated to him. In Agent Crowder's experience, people with firearms associated to them tend to also have other firearms not associated to them in AFS. Agent Crowder stated it was a logical presumption that defendant had more than 87 firearms associated to him.

Agent Crowder found two e-mail addresses listed for defendant. One of defendant's e-mail addresses was used by a buyer on Gunbroker.com. In August 2016, defendant purchased " 'Polish PPS-43 parts.' " The Polish PPS-43 is a simply designed Russian submachine gun.

In September 2016, defendant purchased a " 'Sten MK III Front End Tube with Original Barrel.' " The Sten MK is a simply designed British submachine gun. In December 2016, defendant purchased a " 'TSMG 1928 Trigger Frame piece (rear section),' " and two " 'TSMG M1 Receiver, Trigger Frame, demil pieces.' " The Thompson is a simply designed American submachine gun, also known as a "Tommy Gun."⁵ Defendant also purchased a " 'Husquvarna M/1940 demil pistols, lathi.' " Defendant had a Husqvarna Lathi associated with him in AFS.

"[F]irearms can be de-milled and are no longer classified as firearms if done so to a defined level." Based on the pictures of the items purchased by defendant, and the fact that they were shipped without a federal firearms license, Agent Crowder presumed defendant's purchases had been de-milled to that level. The ATF describes the procedures of demilitarizing a gun, thereby rendering it lawful to sell on the open market. The procedure involves destroying the frame or receiver "in a manner that will prevent its function and future use as a firearm. A proper method of destroying this firearm is to cut the receiver into separate pieces."⁶

Based on Agent Crowder's "training, experience and discussions with other investigators gun enthusiasts will often purchase multiple firearm's [sic] pieces of a oncecomplete firearm in this particular case machine gun(s). They do this for multiple reasons, either to repair existing firearms they maintain [as defendant with the Husqvarna]. Or as in the other cases . . . I believe in order to trim, fit and re-weld the firearms parts together in order to produce a functioning machinegun." Doing so would violate both federal and state law.

Pursuant to a search warrant, Agent Crowder received defendant's bank records in June 2017. Between March and August 2016, defendant made over $4,500 in payments to vendors that sell guns and/or gun accessories. This was over 50 percent of his total credit card expenditures during this period. Almost $3,000 of those were four purchases from a vendor that specialized in vintage and obsolete gun parts, and " 'hard to find parts for commercial and military firearms of U.S. and foreign manufacture,' " and other purchases were from a vendor that had surrendered their federal firearms license years earlier. Defendant also made 14 payments using PayPal payment services. Because PayPal has "a heightened level of anonymity" and some ambiguity in its transactions, it is an attractive service to use when purchasing items associated with criminal activity.

Agent Crowder declared that repeated firearm trafficking, manufacturing, or enthusiast activity continues "over lengthy periods of time" as many of the component parts and documentary evidence is not itself illegal to possess. It is also common practice for firearm traffickers, manufacturers, or enthusiasts "to maintain personal property used or obtained in their criminal activities and which constitute evidence of their crimes for extended periods of time." In Agent Crowder's training and experience, "where criminal activity is long-term or ongoing, equipment and records of the crime will be kept for some period of time."

Based on Agent Crowder's training and experience, and discussions with other investigators, "gun enthusiasts such as [defendant] would unlikely destroy and/or remove from where they reside firearms, not only for their monetary value but also their extrinsic value." In Agent Crowder's experience, "persons purchasing machine gun parts(especially different iterations of the same part) are doing so not to display them (as they constitute such a small piece of the frame or receiver) but rather purchase multiple parts in hopes of fitting, re-welding and/or rebuilding what would constitute a machine gun under both State and Federal law, in direct violation of both." The other parts needed to build a functioning machine gun are not federally regulated and are available through multiple unregulated nontracked open sources. Once the frame or receiver is rebuilt out of smaller de-milled parts, it is easy to assemble the firearm with the other unregulated parts.

Agent Crowder believed defendant "has purchased several different parts of 'de-milled' machine guns in an attempt to rebuild the machine gun(s) receiver and to ultimately assemble the receivers with unregulated parts producing a functioning machine gun(s)." On January 16, 2018, Agent Crowder sought a warrant to search defendant's property for evidence of defendant building or rebuilding machine guns. The district attorney reviewed and approved the request as to form. The magistrate found probable cause and issued the search warrant.

Trial Court Ruling

The trial court heard additional argument from the parties on the validity of the search warrant. The trial court noted there were "deficiencies with respect to the warrant's issuance and execution" based on the federal agent's participation, but did not quash the warrant on that basis.

The trial court reviewed the affidavit and concluded the facts supporting a finding of probable cause were limited to defendant's purchase of de-milled gun parts, with nothing suggesting such purchases or possession violated any law or that defendant had anything to do with machine guns. Accordingly, the court concluded that the affidavit lacked probable cause for the issuance of the warrant. The court also noted the last investigative efforts documented in the affidavit took place approximately seven months prior to the federal agent seeking the warrant. Accordingly, the trial court found theinformation too stale to be reliable. Finally, the trial court concluded the warrant was so lacking in indicia of probable cause that the good faith exception under United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677] did not apply. Based on these conclusions, the trial court granted the motion to quash and ordered the evidence seized in the execution of the warrant suppressed.

The People moved for...