1 Stephen A.

Munkelt, SBN 80449

MUNKELT LAW OFFICE
2 356 Providence Mine Road, Suite E
Nevada City, CA 95959
3 Tel: (530) 265-8508
Fax: (530) 265-0881
4 stephen@munkeltlaw.com
5 Attorneys for Joel Franks
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF NEVADA
10 People of the State of California, Case No. F15-0101
11 Plaintiff,
v. NOTICE AND MOTION TO QUASH AND
12 TRAVERSE SEARCH WARRANTS (P.C.
JOEL FRANKS, 1538.5)
13 Defendant. DATE: 3/27/17
TIME: 9:00 a.m.
14 DEPT: 4

15
16 TO: Plaintiff above named, and their attorney Clifford Newell, District Attorney:

17 PLEASE TAKE NOTICE that at the time and place stated above, or as soon thereafter as the

18 matter may be heard, Defendant will move the court for a hearing and order quashing the search warrants

19 underlying this prosecution or traversing the warrants and ordering suppression of evidence for failure to

20 meet minimum constitutional requirements. This motion is made in the interest of justice, and to enforce

21 the constitutional limitations on unreasonable search and seizure as expressed in California Constitution

22 Article I 13, and the Fourth Amendment to the U.S. Constitution.

23 The motion will be based on this Notice and Motion, the attached Points and Authorities, the

24 attached declaration of counsel, the records in the court file, and any other evidence and argument

25 properly before the court at the time of hearing.

26
27 Respectfully Submitted,

28
Stephen A. Munkelt

Notice and Motion to Quash and Traverse

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 1 STATEMENT OF THE CASE
2 Defendant Joel Franks was arrested on April 2, 2015, September 24, 2015 and March 1, 2016. A
3 criminal complaint was filed in each case, and all went to preliminary hearing on August 30, 2016. An
4 Information was filed as F15-000101 in the earliest case, and separate Informations in the others
5 designated as F15-000337 and F16-000077. On February 24, 2017 the court granted the Peoples motion
6 to consolidate, and all cases are now designated as F15-000101. A consolidated information
7 incorporating charges from all three arrests was filed at that time.
8 The case is presently set for motions under 1538.5 and regarding government misconduct on
9 March 27, 2017.
10
11 SUMMARY OF THE FACTS
12 First Arrest
13 An affidavit seeking issuance of a search warrant was submitted to the Honorable Linda Sloven
14 on April 2, 2015. The affiant was Deputy Mark Hollitz with the Narcotic Task Force (hereinafter NTF).
15 The magistrate issued the warrant at 3:35 p.m. on April 2, designated as SW 3883. (The court is
16 requested to take judicial notice of the contents of the file for the purpose of these motions.)
17 The affidavit sought a warrant to search 10610 Oak Street in Grass Valley, as well as Mr. Franks
18 person, cell phones, and vehicles. Deputy Hollitz alleged that probable cause to search was shown by the
19 information received from two reliable informants and one untested informant, and further supported
20 by information received from Sgt. Justin Martin. One CRI was alleged to have said Mr. Franks was
21 selling large amounts of meth. The second CRI said Mr. Franks has been selling large amounts for years,
22 and knows he is living behind the market on Oak Street in Grass Valley. The untested informant was
23 asked who is doing big things and allegedly responded with Joel Franks name.
24 The affiant also alleged that Sergeant Justin Martin is familiar with Franks from prior
25 investigations. Between October and December 2014 when Sgt. Martin was on graveyard shift he
26 frequently went by the residence at 10610 Oak and saw Franks or his vehicle many times. Martin is
27 further alleged to have said that he followed Franks from and to 10610 Oak several times during
28 February and March 2015.

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 1 Warrant 3883 was executed on April 2, 2015, at 9:25 p.m. about six hours after it issued. Deputy
2 Hollitz and supporting officers arrived at 10610 Oak Street in Grass Valley, and met Gary Lawton at the
3 front door. Mr. Lawton informed them that Joel Franks had a room in the house, and showed the
4 deputies to a bedroom, which was then searched. Suspected methamphetamine of 26.85 grams was
5 seized, along with $40 in cash, two glass meth pipes, three digital gram scales, 8 small unused ziplock
6 baggies, a small blue funnel and a white plastic cup.
7 At 10:28 p.m. Detective Evan Butler made a traffic stop on Mr. Franks as he approached 10610
8 Oak Street. His vehicle and person were searched, and yielded no contraband. He was in possession of
9 $187.86, which was seized.
10 Second Arrest
11 Sgt. Justin Martin submitted an affidavit seeking a warrant on September 16, 2015. The
12 Honorable Linda Sloven issued the warrant at 1:15 p.m. designated as SW 4006. (The court is requested
13 to take judicial notice of the contents of the file for the purpose of these motions.)
14 The application for the warrant requested permission to search 10544 Cedar Avenue in Grass
15 Valley, as well as the person, cell phones and vehicles of Joel Franks. For probable cause Sgt. Martin
16 averred that during September 2015 he spoke to a reliable informant who said Joel Franks was
17 currently selling meth out of his residence on Oak Street. There is information sealed as exhibit A
18 and alleged to contain a further basis for probable cause. A redacted version of the attachment was
19 released on motion of the defense, and reports the affiants belief that CI was reliable, because
20 information had led to arrests in the past, though it does not appear there is any information from which
21 the magistrate could check the accuracy of the officers statements. .
22 Sgt. Martin further stated that he had reviewed the record of Franks arrest on April 2, at 10610
23 Oak Street, and represented that an ounce of methamphetamine was found at that time. Martin further
24 stated that he reviewed a CII (criminal history report) and found in excess of 50 arrests since 1978,
25 including 38 that were drug related.
26 Warrant 4006 was executed on September 24, 2015, at 10:57 a.m., eight days after it was issued.
27 Sergeant Martin was accompanied by Detectives Spillner, Mackey and Corporal Vingom in the
28 execution. Franks and Donald Arthur were initially contacted in the back yard, and Christi Felkins was

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 1 in one of the bedrooms. All three were detained. Sgt. Martin searched Franks room. He seized a digital
2 scale which appeared to be a pack of Marlboros, a spray starch can that had a false bottom and held 105
3 small plastic bags, and two glass pipes, one of which was about 2 feet in length. In a detached garage
4 Sgt. Martin found a black digital scale in a tool box. In the same box he found a black pouch containing
5 67 small baggies, one ziplock bag with 2.64 grams of suspected meth, and another ziplock with 52.75
6 grams of suspected meth. A cell phone sitting on the bumper of a Jeep was seized under the warrant, as
7 well. There was $760 found on Franks person.
8 Deputy Jason Mackey was assisting in the service of warrant 4006 when Chelsea Rae Anderson
9 arrived at the house and entered the kitchen through a back door, at which point she was detained.
10 Mackey and Deputy Spillner searched her purse, then took her outside for interrogation. Afterward she
11 was released from the scene.
12 Third Arrest
13 Deputy Esteban Salinas submitted an affidavit seeking a warrant on March 1, 2016. The
14 Honorable Candace Heidelberger issued the warrant at 10:18 a.m. designated as SW 4103. (The court is
15 requested to take judicial notice of the contents of the file for the purpose of these motions.)
16 Deputy Salinas requested a warrant to search 17670 Greenhorn Road, as well as the person, cell
17 phones and vehicles of Joel Franks. For probable cause it alleged that a reliable informant told Salinas
18 in February 2016 that Franks was currently selling meth, which the informant had observed within the
19 last seven days. Sgt. Martin told Salinas that Martin participated in the arrest of Franks at his mothers
20 property at 17670 Greenhorn Road in 2010, and that 90.88 grams of meth was found at that time.
21 Salinas averred that on March 1, 2016, Sgt. Martin told him that a reliable informant witnessed
22 Mr. Franks with a substantial amount of meth within the last seven days, and that Franks told the
23 informant he was planning on selling it. Salinas also describes a review of CII information with over 50
24 arrests since 1978 and 38 of those involving drug charges. There is information sealed as exhibit A
25 and alleged to contain a further basis for probable cause. A redacted portion of the attachment was
26 released on defendants motion. It includes portions written to support the credibility of CI-1" and CI-
27 2". This statement says that CI-1" is not providing the information with the expectation of any benefit
28 on his/her pending cases. It also alleges that CI-2" has no pending cases and is motivated to provide

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 1 information to rid the community of drugs. From the wording of the attachments it appears likely that
2 CI for SW 4006 is also CI-2" for SW 4103.)
3 Warrant 4103 was executed on March 1, 2016, less than seven hours after it issued. Deputy Jason
4 Mackey was the executing officer. Mackey was parked at the 13700 block of Greenhorn Road at 4:54
5 p.m. Three other vehicles with NTF team members were parked nearby. Joel Franks drove by in a Jeep,
6 and Mackey immediately made a traffic stop. The rest of the team pulled up within 90 seconds. Mackey
7 got Franks out of the Jeep and handcuffed him, while Sgt Martin and deputies Butler and Salinas began a
8 search. Sgt. Martin alerted him they had found a pouch with meth, and Mackey put Franks in a patrol car
9 then went to the front of the Jeep. Mackey saw Martin and Butler push a rod through the space behind
10 the front bumper, and a black plastic bag fell out the other side.
11 Inside the black bag was a white plastic bag, inside that was a black zippered pouch and four
12 ziplock baggies with suspected meth. The pouch held a digital scale. The baggies contained 5.18 grams,
13 27.91 grams, 56.28 grams and 56.38 grams of suspected meth.
14 After Mackey left with Franks in custody Sgt. Martin went to 17670 Greenhorn with Detective
15 Butler and Salinas. He contacted Joels mother, Taja Mirantz, who advised that Joel was living in a
16 tough shed on the property. In a search of the shed Martin seized two glass pipes and two broken glass
17 pipes, a letter as indicia and an envelope with 27 small ziplock bags. A search of a truck parked in the
18 driveway resulted in seizure of a ziplock bag with three pills.
19
20 ISSUES AND ARGUMENT
21 I.
NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE,
22 SUPPORTED BY OATH OR AFFIRMATION, AND
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED,
23 AND THE PERSONS OR THINGS TO BE SEIZED.
24 A search warrant may only be issued upon a showing of probable cause. (U.S. Const., 4th
25 Amend.; Cal. Const. Art. I Sec. 13; Penal Code 1525.) Probable cause exists where there is a fair
26 probability that contraband or evidence of a crime will be found in a particular place, at the time of the
27 search. (Illinois v. Gates (1983) 462 U.S. 213, 238; People v. Carrington (2009) 47 Cal.4th 145, 161;
28 People v. Kraft (2000) 23 Cal.4th 978, 1040-1041; People v. Gibson (2001) 90 Cal. App.4th 371, 380.)

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 1 The probable cause showing must appear in the affidavit offered in support of the warrant. (Carrington,
2 at p. 161.) " 'The task of the issuing magistrate is simply to make a practical, common-sense decision
3 whether, given all the circumstances set forth in the affidavit before him [or her], including the
4 "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability
5 that contraband or evidence of a crime will be found in a particular place.' " (Ibid.; Illinois v. Gates,
6 supra, at p. 238; People v. Scott (2011) 52 Cal.4th 452, 483.) Probable cause cannot be established by
7 the conclusions or opinions of police officers, unless they are supported by facts. (Nathanson v. United
8 States (1933) 290 U.S. 41, 46-47, cited approvingly in Gates, supra, 462 U.S. at 227, 239.)
9 It is clear that the Constitution requires more for the finding of probable cause than a random or
10 standardless application of common sense. What the constitution requires is a common sense
11 application of the recognized legal principles and factual issues relevant to the warrant request. And it
12 is clear that "only the probability, and not a prima facie showing, of criminal activity is the standard of
13 probable cause." Spinelli, 393 U.S., at 419.... (Illinois v. Gates, supra 462 U.S. at 235.) Careful
14 attention to the standards and the facts is, perhaps, most important in cases involving informants and
15 anonymous sources, as was the case in Gates. (See Part III, infra.)
16 The Gates case arose from an anonymous letter sent to the police accusing Lance and Susan
17 Gates of running drugs from Florida to Illinois and living off their dealing. There was also confidential
18 informant participation to establish an address for the Gates, followed by DEA surveillance of a plane
19 flight to Florida by Lance where he met a woman and drove back to Illinois in a car registered to the
20 couple. (Gates, supra, 462 U.S. at 216-217; 225-227.) A warrant was obtained based on this information
21 and evidence was found to support felony marijuana charges.
22 The Illinois courts granted a motion to suppress evidence, finding the warrant was issued without
23 probable cause based upon, inter alia, Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United
24 States, 393 U.S. 410 (1969). (Gates, supra, 462 U.S. at 216.) At the time, these decisions were
25 interpreted as requiring that a two-pronged test be satisfied before anonymous reports or informant
26 information could establish probable cause. This required that the information given to the magistrate
27 must establish the basis of knowledge of the informant, and also the veracity or reliability of the
28 informant or the information provided. (See Gates, supra, 462 U.S. at 228-230.) The state court found

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 1 the anonymous letter failed to establish the basis of the informants knowledge, and also lacked anything
2 to establish veracity or the informations reliability. Although law enforcement corroborated travel to
3 Florida, the activities observed were entirely lawful, hence the corroboration was insufficient. (Id.)
4 On this record the court in Gates disapproved the two-pronged test approach, and adopted the
5 language repeated endlessly ever since: a practical, common-sense decision about probable cause
6 based upon the totality of circumstances. But in adopting this less rigid standard the court was careful
7 to say We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis
8 of knowledge" are all highly relevant in determining the value of his report. (Gates, supra at 230.) The
9 court did not intend to make the magistrates review of the affidavit less thorough or more superficial.
10 All the same concerns should be addressed as before Gates, with just as much attention to corroboration
11 and veracity. The difference is that no specific test can be required for every determination of probable
12 cause. [T]he informant's "veracity" or "reliability" and his "basis of knowledge".... are better understood
13 as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided
14 probable-cause determinations.... (462 U.S. 233.)
15
16 II.
THERE WAS NOT PROBABLE CAUSE TO ISSUE THE
17 WARRANTS 3883, 4006 AND 4103.
18 A. SW 3883
19 The first sign of trouble with this affidavit is not in what it contains, but what is omitted. The
20 affiant tells us that Sergeant Martin, whom the magistrate knows to be an experienced narcotics officer,
21 conducted a months-long surveillance of Joel Franks and his residence at 10610 Oak St. The
22 observations included both day and night, and times when Martin followed Franks to and from the
23 residence. But the affiant only relies on this information to corroborate the address.
24 What is missing is any indication that in his extended watching and tailing of the suspect Sgt.
25 Martin observed anything which suggested criminal activity. Yet many things could have made such a
26 link. If there were frequent visitors to the residence, or Franks travels took him to the homes of known
27 drug users/dealers, or he was observed apparently making a hand-to-hand exchange, this would have
28 corroborated the informants claims of criminal activity. The absence of such information does the

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 1 opposite - undermines the confidence the magistrate can place in the confidential informants claims.
2
3 B. SW 4006
4 The affidavit has a caption on page 3: LOCATION/S TO BE SEARCHED. It then states an
5 address: 10544 Cedar Avenue, which is described as a single wide mobile home, tan in color, with a
6 detached garage. The warrant, in contrast, authorizes a search of 10610 Oak Street, further described
7 as being a single story residence, white in color, with red trim and a red terracotta tiled roof. Although
8 the warrant may satisfy the particularity requirement for the location actually searched, (See e.g.
9 Maryland v. Garrison (1987) 480 U.S. 79, 84 [107 S. Ct. 1013, 1016, 94 L. Ed. 2d 72].) the question
10 presented here is whether the affidavit supported issuing the warrant.
11 A common-sense reading of the affidavit would necessarily leave the magistrate with a well-
12 founded doubt about the location to be searched. There are references to 10610 Oak in the affidavit, as
13 well as the specification of 10544 Cedar Avenue. A quick check would show the two addresses are in
14 the same neighborhood, less than a quarter mile apart. Although it is reasonable to conclude that some
15 mistake has been made, it is not permissible to reach a conclusion about the nature of the mistake and
16 issue the warrant - without getting a correction of the affidavit. To do so would involve a complete
17 abdication of the constitutional role of the reviewing magistrate. As discussed above, Gates did not
18 relieve magistrates of the duty to carefully review, consider and question the affidavit to assure that
19 homes and privacy are not invaded without cause, or by mistake. Confronted with this inconsistency, the
20 proper action would have been to ask the affiant to review it and make any changes necessary to identify
21 the actual location to be searched.
22
23 C. SW 4103
24 This warrant application process does not appear to have the same type of facial defects
25 discussed above with respect to SW 3883 and SW 4006. However, looking at the three warrants together
26 some patterns begin to emerge. Although the affiant is a different officer in each of the three cases,
27 Sergeant Martin provides information for each of them. In particular it appears he relied on the same
28 informant in attempting to establish probable cause For SW 4006 and SW 4103. Such overlap would

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 1 create a potential for manipulation of the facts by the informant, Sgt. Martin, or both. Defendant
2 believes further light may be shed on the issues by the misconduct motion to be heard concurrently.
3
4 III.
DEFENDANT IS DENIED THE DUE PROCESS OF LAW BY
5 DEPRIVING HIM OF INFORMATION NECESSARY TO
ADEQUATELY TRAVERSE OR QUASH THE WARRANTS
6
7 The defendant has a right to challenge the legality of the searches in this case by motion to quash
8 the warrants for lack of probable cause, or by traversing the veracity of the affidavit or affiant. (Penal
9 Code 1538.5; Cal. Const. Art. I Sec. 13; U.S. Constitution, 4th amendment; Franks v. Delaware (1978)
10 438 U.S. 134.) In this case, where the exclusive basis for probable cause is the hearsay reports of
11 informants whose information is withheld from the defense, defendant is effectively denied a fair
12 opportunity to litigate these issues. When the actions of the prosecution deny the accused a fair
13 opportunity to litigate, the appropriate remedy is dismissal of the charges. (See People v. Brophy (1992)
14 5 Cal. App. 4th 932, 937-938.)
15 Where the information withheld consists of informants alleged reports to officers the
16 prosecution typically relies on Hobbs for deflecting challenges with the informer privilege. (People v.
17 Hobbs (1994) 7 Cal. 4th 948.) But that case should be interpreted in light of its facts - specifically the
18 fact that the magistrate in that case personally interviewed the informant to establish his/her reliability.
19 (Hobbs, supra, 7 Cal. 4th at 954.) This is quite different from the typical case, and the underpinnings of
20 the warrants here. In this case there is a sealed statement of facts attributed to an informer by an officer
21 who recites what the informer allegedly said. The magistrate was required to take the word of the affiant
22 that their source(s) had a personal basis of knowledge, that the information was reliable, and sufficiently
23 corroborated to establish its veracity.
24 In Hobbs the court described the issue as the inherent tension between the public need to protect
25 the identities of confidential informants, and a criminal defendant's right of reasonable access to
26 information upon which to base a challenge to the legality of a search warrant.) (7 Cal. 4th at 957.) Where
27 the magistrate has the opportunity to interview the informant directly, asking questions to establish the
28 basis of knowledge, the extent of facts known, and the factors which affect reliability - expectation of

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 1 benefit, desire to eliminate a rival, jealousy, etc. - Hobbs may strike the right balance. In fact, the New
2 York decision relied upon by the court for the rule in Hobbs was also a case where the magistrate
3 personally interviewed the informer. (Hobbs, supra, 7 Cal. 4th at 969, citing People v. Castillo (1992) 80
4 N.Y.2d 578 [592 N.Y.S.2d 945, 607 N.E.2d 1050], certiorari denied Castillo v. New York (1993) 507
5 U.S. 1033 [123 L.Ed.2d 477, 113 S.Ct. 1854].)
6 Criminal informants are often very dangerous people who continue to prey on the innocent public
7 as well as those charged with crimes with the full cooperation of law enforcement. Those with the most
8 information about drug offenses are users and dealers. " Regrettably, law enforcement knows full well
9 that snitches are the worst of the lot and too often conceal the truth about them in order to prevail. (See,
10 e.g., Singh v. Prunty, 142 F.3d 1157(9th Cir. 1998)(prosecutor keeps from defense information regarding
11 the benefits conferred on its major witness which would have demonstrated that he came forward to
12 testify for reasons other than civic duty.)
13 It is also important to keep in mind the pressures on law enforcement as they attempt to get the
14 bad guys. 1. that the natural desire of a police officer to see a criminal brought to justice may cause
15 him to be less than candid in connection with a collateral inquiry which does not go to what appears to
16 him to be the only relevant question: was the defendant a thief? 2. That law enforcement is often a
17 competitive enterprise (Terry v. Ohio, 392 U.S. 1, 12 [20 L.Ed.2d 889, 900, 88 S.Ct. 1868]; Johnson v.
18 United States, 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367]; and 3. that a police officer who has
19 conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions.
20 (People v. Dickerson (1969) 273 Cal. App.2d 645, 650, fn. 4.)
21 In the facts before this court defendant believes the analysis in Brophy, supra is more appropriate
22 than is Hobbs. Depriving the accused an opportunity to fully litigate the validity of the warrants is
23 fundamentally unfair. If the government chooses to restrict the defendants rights by exercising a
24 privilege the charges should be dismissed.
25 ///
26 ///
27 ///
28

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 1 IV.
THE MOTION TO TRAVERSE IS INTERTWINED WITH THE
2 EVIDENCE OF GOVERNMENTAL MISCONDUCT.
3 Under Franks, supra, the defense bears an initial burden of showing the attack on the veracity of
4 the affidavit is more than conclusory, and has some evidentiary support. (478 U.S. at 171.) Defendant
5 believes such evidence exists. However, the support has not yet been developed. It is the motion to
6 dismiss for outrageous government conduct which will be the source of that foundation. Therefore, the
7 court should take evidence on that motion first, before turning to this Fourth Amendmentprocedure.
8
9 Respectfully Submitted,
10 March 13, 2017
11 Stephen A. Munkelt
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