People v. Thuss

133 Cal.Rptr.2d 149

107 Cal.App.4th 221

The PEOPLE, Plaintiff and Respondent, v. Joshua James THUSS, Defendant and Appellant.

No. C040272.

Court of Appeal, Third District.

March 21, 2003.

Review Denied June 11, 2003.

Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Rachelle A. Newcomb, and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

SIMS, J.

Following the denial of his motion to traverse a search warrant and suppress evidence, defendant Joshua James Thuss pled no contest to possession of marijuana for sale in violation of Health and Safety Code section 11359. On appeal, defendant contends: (1) he was denied due process when the trial court refused to admit certain evidence relevant to the affiant's credibility at the traversal hearing (Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (Franks)) and (2) there was insufficient probable cause to support the search warrant for his residence.

We shall conclude that defendant may not complain that certain writings were not admitted in evidence where he did not move the writings into evidence. We shall further conclude that the presence of fresh marijuana clippings in defendant's trash outside his house furnished probable cause to obtain a warrant to search the house. We shall therefore affirm the judgment.

BACKGROUND

On the morning of November 4, 1999, Placer County Sheriffs served a search warrant at defendant's residence located at 4879 Willowbrook Drive in Sacramento. There, officers found 47 marijuana plants, in various stages of maturation, growing in hydroponic grow trays in one of the bedrooms. The officers also discovered a triple beam scale and packaging materials and marijuana clippings in a bag in the garage. After being "Mirandized" (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), defendant admitted to growing marijuana for purposes of sale.¹

In superior court, defendant moved to traverse the search warrant and suppress the fruits of the search.² At the traversal hearing, defendant claimed Placer County Deputy Sheriff Tracy Grant, the affiant of the search warrant, recklessly or intentionally included false and misleading information in his affidavit and that, if this information were excised, insufficient probable cause remained for issuance of a warrant.

The affidavit for the search warrant contained general allegations attesting to Grant's qualifications and experience concerning narcotics. It also contained the following specific statements which were challenged by defendant:

"On 10-18-99 your affiant drove to 4879 Willowbrook Dr. Sacramento, California and observed one vehicle in the driveway to the residence. The vehicle license plate number was 3CQA569. Your affiant obtained DMV records for 3CQA569, which returns to Joshua James Thuss at 4879 Willowbrook Dr. Sacramento, [¶] ... [¶]

"Your affiant contacted Sacramento County Waste Management and determined trash is collected Tuesday at 4879 Willowbrook Dr. Sacramento. On 10-26-99 your affiant and Detective [Goodpasture] conducted a search of the trash can which was placed at the curb side for collection directly in front of 4879 Willowbrook Dr. Sacramento, California. Your affiant found thirty two discarded letters addressed to Joshua Thuss at 4879 Willowbrook Dr. Sacramento, California. Your affiant also found marijuana stems and leaves recently cut from a mature marijuana plant. The marijuana was fresh green and still moist and had been recently cut from a mature plant .... [¶] ... [¶]

"Your affiant subpoenaed subscriber and power usage records for 4879 Willowbrook Dr. Sacramento, California from Sacramento Municipal Utility District SMUD. The subscriber for power is Joshua J. Thuss. The records revealed high power use for the past nine months for a total of 11,976 KW with a [sic] average of 1330 KW used a month. Your affiant compared power use at 4879 Willowbrook Dr. Sacramento, California with other like residences located in the same neighborhood. The power use at 4879 Willowbrook Dr. Sacramento is 143 to 252 percent higher than the power use at the other like residences when compared over the same nine month period. The residences used as comparison were:

"4878 Willowbrook Dr. Sacramento, California, which used 8,342 KW for the same nine month period (926 KW monthly average).

"4884 Willowbrook Dr. Sacramento, California, which used 6,604 KW for the same nine month period (733 KW monthly average).

"4890 Willowbrook Dr. Sacramento, California, which used 4,737 KW for the same nine month period (526 KW monthly average)."

The affidavit then explained that such high power consumption is consistent with the use of the equipment needed to grow marijuana indoors, such as grow bulbs, ballasts, fans, and water pumps.

At the hearing, defendant attempted to show that Grant had falsely averred that he found marijuana cuttings in defendant's trash, falsely averred that he had subpoenaed power usage records for defendant's home, and omitted material facts regarding defendant's power usage, and provided false information regarding how he obtained defendant's Department of Motor Vehicle (DMV) records.

Defendant testified at the hearing. He stated his car was not outside his house on October 18, 1999, as claimed by Grant. On that date, his sister (who testified to the same) had borrowed his car. He also testified he had educated himself about the dangers of growing marijuana and never put anything relating to cultivation in the garbage because he knew that police could obtain a search warrant based on its discovery. He also denied throwing away the mail Grant claimed to have found because that mail contained unopened bills and loan documents. He was absolutely positive he did not throw them out on the date alleged. After he was arrested, he had told Grant that he usually double-bags the marijuana clippings and discards them in different dumpsters around town. The officers recovered one of his bags of clippings from his garage during the search of his house.

Defendant also called numerous witnesses to establish that Grant had a pattern and practice of including similar misrepresentations in other search warrant affidavits he had authored. We recount this testimony as follows:

Sheri VanDerheydt testified her residence located at 4716 Kerwood Way in Sacramento was searched pursuant to a warrant on January 5, 1999, and no marijuana was found. She acknowledged, however, that after the search, her husband was arrested and charged with possession of marijuana. She testified that it was impossible for Grant to have found marijuana in her trash can on December 21, 1998, as he had alleged in the search warrant affidavit, because on that day there was an ant infestation and her husband had put the trash can out at the last possible moment. The trash was on the curb for only 40 minutes and, although she was packing for a trip, she kept an eye on it the entire time it was outside. She could see the trash can from her kitchen window and no one went through her trash before the trash collector arrived. Her husband, Rodney VanDerheydt, testified that any marijuana found in the residence during the execution of the search warrant was not his.

With respect to the VanDerheydt residence, Grant testified that he did search the trash after having transported it to a nearby location. It would have been dark outside at the time he collected the trash and he recalled there had been no visible movement and did not recall any lights on inside the residence. Sergeant Keven Besana also testified that he took part in the search of the VanDerheydt trash in which they found marijuana. Besana also took part in the later search of the residence and the officers found brown paper bags of marijuana in two separate rooms.

Chris Miller also denied that Grant could have found "moist green stems recently cut from a true marijuana plant and two letters" during the search of his trash as alleged in Grant's affidavit. Miller testified he has never put marijuana stems or leaves in his trash, but instead, either composts them in his backyard or burns them in his fireplace. Miller admitted, however, that he does grow marijuana.

Besana testified that he participated in the search of Miller's trash and that marijuana was found during the search.

Amy Breeze testified that Grant lied in his search warrant affidavit for her residence at 3965 Folsom Boulevard in Sacramento. She stated the car in her driveway that Grant averred he ran with DMV (and DMV showed was registered to her) had not even been registered in the state. Moreover, the license plate number Grant indicated he saw on her car (K882335) was actually the number of her expired disabled person's placard and was never affixed to any vehicle at the residence. Breeze also testified that Grant's averment that he had contacted Sacramento County Waste Management to find out the day refuse was collected was false because the collecting entity for her residence was Sacramento City Solid Waste Management. Breeze also denied having discarded the letters Grant said were found in her trash and claimed Grant could not have found marijuana leaves and stems in her trash because she made it a practice to never so dispose of such items.

Grant offered explanations for the discrepancies. During his testimony, he explained that the statement that "license plate number C882335" was on a vehicle in front of the residence was an inadvertent inaccuracy. He and his partner went by the residence and wrote down the license plate numbers of the two vehicles that were there; however, the placard number had already been written on that piece of paper and, when preparing the affidavit, he accidentally wrote down the wrong number. He also testified that he...