Filed 5/6/13 P. v. Jackson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY RENE JACKSON,

Defendant and Appellant.

 B242495

 (Los Angeles County

 Super. Ct. No. TA119482)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Eleanor J. Hunter, Judge. Affirmed.

David M. Nisson; David J. Scharf for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. 

Hill, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

Defendant Tony Rene Jackson appeals from the denial of his motion to quash the 

search warrant and his motion to suppress evidence under Penal Code section 1538.5.1 

After denial of his motions, defendant agreed to plead no contest to one count of 

possession of a firearm by a felon with four prior convictions (§ 12021, subd. (a)(1)) 

(count 3) in exchange for a sentence of four years.2 The sentence consisted of the 

midterm of two years, doubled to four years due to defendant‘s prior conviction of a 

serious felony. (§§ 1170.12, subd. (a) – (d); 667, subd. (b) – (i).)

Defendant appeals on the grounds that the trial court erred by denying his motion 

to suppress evidence because the facts alleged in the affidavit did not justify the search, 

and the good faith exception did not apply. 

FACTUAL AND PROCEDURAL HISTORY

Joe Cummings had known defendant for several years.3 Cummings believed 

defendant was angry with him for an incident that occurred at the funeral of Cummings‘s 

mother.4 Cummings did not allow defendant to bring a gun into the funeral.

Cummings made a police report about an incident that occurred on March 25, 

2011, when he encountered defendant at a store. Defendant approached Cummings and 

said, ―I got my gun with me tonight.‖ Defendant left the store and waited in the parking 

lot, and Cummings saw that defendant was armed with a gun. Store employees called 

police, and defendant fled. When the police arrived, Cummings provided the officers 

 

1 All further references to statutes are to the Penal Code unless stated otherwise. 

2 Subsequent to defendant‘s plea, the People moved to dismiss one count of making 

criminal threats (§ 422) with an arming enhancement (§ 12022, subd. (a)(1)) (count 1); an 

additional count of possession of a firearm by a felon with four priors (count 2); one 

count of possession of ammunition (§ 12316, subd. (b)(1)) (count 4), and a serious felony 

allegation (§ 667, subd. (a)(1)). 

3 Unless otherwise indicated, the facts are obtained from the search warrant and 

affidavit. No witnesses testified at the hearing on defendant‘s motions.

4 At the hearing, defense counsel stated that the funeral occurred five years prior to 

the March 2011 incidents.
3

with some information about defendant. The officers attempted to pursue and apprehend 

defendant, but were unsuccessful. The officers returned to the store, but Cummings had 

already gone.

On March 26, 2011, Cummings was in front of his home when he saw defendant 

driving a silver or gray Chrysler 300. Defendant stopped in front of Cummings‘s home 

and said while holding a gun, ―Nigga I‘m gonna kill your punk ass!‖ Cummings was in 

fear and called the police.

On April 26, 2011, Cummings went to the police station. It appears he officially 

reported the March 25, 2011 incident at this time. On June 14, 2011, Cummings returned 

to the police station and met with Los Angeles Police Detective Patrick Flaherty.

On August 4, 2011, a magistrate approved Detective Flaherty‘s search warrant and 

affidavit. The transcript of the preliminary hearing shows that Detective Flaherty 

obtained and served a search warrant at defendant‘s home on August 10, 2011, and found 

a loaded .25-caliber semiautomatic pistol.

DISCUSSION

I. Defendant’s Argument

Defendant asserts that Detective Flaherty failed to aver sufficient fresh facts to 

support the search warrant. The affidavit recited the opinions and conclusions of the 

affiant, and the information from Cummings was inadequate and unreliable. Defendant 

also argues that the detective could not rely on the good faith exception under the 

circumstances. Therefore, all evidence should have been suppressed.

II. Contents of the Warrant

The record shows that the warrant was obtained to search defendant‘s residence 

and any vehicles connected to the occupants of that residence. The items to be seized 

were any and all firearms or pieces of firearms and firearm paraphernalia, any evidence 

of street gang membership, any safe, and any items tending to establish the identity of the 

persons in control of the premises. Detective Flaherty summarized his experience as a 

gang officer, and stated that he was assigned to the police department‘s Division Gang 

Impact Team.
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In the statement of probable cause, Detective Flaherty summarized the two police 

reports made by Cummings—one describing the March 26, 2011 incident, and the other 

describing the March 25, 2011 incident. The affidavit stated that Cummings knew 

defendant as a hardcore gang member of the Blood Stone Villains. Detective Flaherty 

then stated that he had determined defendant‘s ownership of a vehicle and the registration 

address by means of department resources. He had shown Cummings a photographic 

lineup, and Cummings had identified defendant as the person who threatened to kill him 

with a gun. Detective Flaherty stated that defendant had several prior arrests for violent 

crimes including rape, robbery, attempted murder, narcotics violations, and weapons 

violations, and he was a convicted felon.

The statement of probable cause further attested, ―Whether or not the above 

firearm is recovered, I believe that above items tend to show that a firearm existed and 

may have once been located in a place to which the suspect had access, and that these

items would tend to connect the suspect to the weapon sought. I further note that in my 

experience, the above items are not normally disposed of after the commission of a crime, 

and that they are therefore still likely to be found in any location or vehicles to be 

searched, or on the person of any suspect to be searched pursuant to this warrant.‖

III. Motion Hearing 

At the hearing on defendant‘s motions, defense counsel argued that the 

information was 131 days old, there were no facts to indicate defendant was a current 

gang member, and no facts to say why a gun was likely to be found at defendant‘s home 

when the only place it had been seen was in a car in a different city. Moreover, the 

officer expressed that a firearm might not even be found. The prosecutor argued that the 

defense had cited only drug-related cases as authority, and a firearm is a personal 

possession intended for reuse and was of ―enduring utility.‖

In making its ruling, the trial court first noted that the warrant did contain some 

indication that defendant was a gang member, since it contained the victim‘s statement 

that he knew defendant as a hardcore gang member who used the moniker ―Sinbad.‖ The 

court stated, ―I do think there is a difference between guns and drugs, and I think the 
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cases note that, that there is a difference between the two . . . .‖ The fact that defendant 

had been seen with the gun several times, albeit over a long period of time, was a 

circumstance of the crime that indicated it was a continuing offense. The defendant‘s 

remark to the victim that he had his gun implied that defendant had a possessory interest 

in it. An additional factor was defendant‘s criminal history. Under the totality of the 

circumstances, the trial court believed that the magistrate had sufficient grounds to deem 

there was probable cause. The court denied the motion to quash and agreed that, in the 

alternative, the good faith exception applied. The trial court denied the motion to 

suppress.

IV. Relevant Authority

Probable cause exists if ―there is a fair probability that contraband or evidence of a 

crime will be found in a particular place.‖ (Illinois v. Gates (1983) 462 U.S. 213, 238.) 

―Because a search conducted pursuant to a search warrant is presumed lawful, the burden 

of establishing the invalidity of the search warrant rests upon the defendant.‖ (People v. 

Lazalde (2004) 120 Cal.App.4th 858, 865.) In determining the sufficiency of an affidavit 

for the issuance of a search warrant, the test of probable cause is whether the facts in the 

affidavit would lead a person of ordinary caution and prudence to believe and 

conscientiously entertain a strong suspicion of the guilt of the accused. (People v. Kraft

(2000) 23 Cal.4th 978, 1041.)

―The general rule is that information that is remote in time may be deemed to be 

stale and therefore unreliable. [Citation.]‖ (People v. Gibson (2001) 90 Cal.App.4th 371, 

380.) However, ―[t]he question of staleness turns on the facts of each particular case. 

[Citations.] If circumstances would justify a person of ordinary prudence to conclude 

that an activity had continued to the present time, then the passage of time will not render 

the information stale. [Citation.]‖ (People v. Hulland (2003) 110 Cal.App.4th 1646, 

1652.) There is no bright-line rule defining a point in time—whether it be in days, 

weeks, or months—at which information in an affidavit must be considered too stale to 

support probable cause. (People v. Carrington (2009) 47 Cal.4th 145, 163-165.)
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―The magistrate‘s determination of probable cause is entitled to deferential review. 

[Citation.]‖ (People v. Carrington, supra, 47 Cal.4th at p. 161; People v. Kraft, supra, 23 

Cal.4th at pp. 1040-1041.) A magistrate‘s determination ― ̳is to be sustained by 

reviewing courts as long as there was a ―substantial basis‖ for his conclusion that the 

legitimate objects of the search were ―probably present‖ on the specified premises.‘‖ 

(Kraft, at pp. 1040-1041; Skelton v. Superior Court (1969) 1 Cal.3d 144, 150; see also 

Illinois v. Gates, supra, 462 U.S. at pp. 238-239.) ―Although in a particular case it may 

not be easy to determine when an affidavit demonstrates the existence of probable cause, 

the resolution of doubtful or marginal cases in this area should be largely determined by 

the preference to be accorded to warrants.‖ (United States v. Ventresca (1965) 380 U.S. 

102, 109; see also People v. Weiss (1999) 20 Cal.4th 1073, 1082-1083.)

V. Trial Court Properly Denied Motions

We disagree with defendant and conclude that, given the nature of the evidence 

and the information supplied by the victim, Detective Flaherty‘s affidavit asserted a 

sufficient basis for the trial court to uphold the magistrate‘s finding. The warrant was not 

invalidated by stale information, despite the lapse of time between the last sighting of 

defendant with the gun and the request to search.

The most significant factor in support of this conclusion is the fact that the nature 

of the item to be sought was a firearm, with which defendant had been seen on at least 

two occasions, albeit far apart. Cummings may have seen it on a third occasion—in the 

store parking lot—and it is clear that defendant at least alluded to having his gun at that 

time. Although defendant repeatedly points out that defendant was seen with the firearm 

miles from his home, we do not believe this fact is significant. A firearm is portable and 

is usually meant to be in the same place as its owner, wherever the owner may be. If an 

individual brandishes or uses a firearm, the most logical places to look for that firearm 

are on his person, in his home, or in his car. This constitutes a reasonable inference 

rather than ―speculation and conjecture,‖ as defendant alleges.

In United States v. Bowers (9th Cir. 1976) 534 F.2d 186 (Bowers), where the 

defendant was charged with the shooting death of a park ranger, the Ninth Circuit 
7

concluded that the affidavit was sufficient, ―though by no great margin.‖ (Id. at pp. 188, 

190.) The court based its conclusion on the circumstances of the murder and the 

evidence at the scene, which indicated that other evidence, including guns and 

ammunition, would likely be found where the perpetrators lived. (Id. at pp. 190-192.) 

The court found that the magistrate properly concluded that there was a reasonable 

ground to believe the items were located at a house to which the defendant was 

connected, since the objects sought were of the type likely to have been kept for the six 

weeks that elapsed between the murder and the search, and the items would probably be 

found where the perpetrators lived. (Id. at pp. 192-193.) This was true even though ― ̳the 

nexus between the items to be seized and the place to be searched rested not on direct 

observation, as in the normal search-and-seizure case, but on the type of crime, the nature 

of the missing items, the extent of the suspect‘s opportunity for concealment, and normal 

inferences as to where a criminal would be likely‘ to conceal the property sought.‖ (Id. at 

p. 192)

Defendant argues that the facts of the instant case are comparable to those of 

United States v. Charest (1st Cir. 1979) 602 F.2d 1015 (Charest), a case that criticized 

the holding in Bowers. Unlike Bowers, the Charest court found that a warrant was 

invalid because the affidavit did not provide a sufficient nexus between the firearm 

sought and the defendant‘s premises. (Charest, at pp. 1015-1016.) An eyewitness to the 

murder in the murder victim‘s home identified the defendant as the shooter, and a police 

officer obtained a warrant for the defendant‘s home, where a gun was found in a bedroom 

closet. (Id. at p. 1016.) The Charest court stated that there was nothing in the affidavit 

from which a factual finding could be made that the gun used in the shooting was 

probably located at defendant‘s address, since ―[c]ommon sense tells us that it is unlikely 

that a murderer would hide in his own home a gun used to shoot someone.‖ (Id. at p. 

1017.) The court had found no case where ―a search warrant was issued for a person‘s 

home on the sole basis that a handgun had been used by that person in the commission of 

the type of crime where the bullets used could be traced to the gun.‖ (Ibid.) The court 

noted the Bowers case, but stated, ―Even if we accept Bowers as good precedent, and as 
8

to this we have some doubt, it is different from our situation where the affidavit states 

that the property for which the issuance of a search warrant is sought is a single 

handgun.‖ (Ibid.) The Charest court also found it was contrary to common sense to 

expect a murderer to keep the murder weapon in his own home for 16 days, which was 

the time lag between the murder and the date of the affidavit. (Id. at p. 1018.)

We believe Charest is distinguishable from the instant case. Defendant was not 

accused of murder, and a particular handgun (e.g., ―capable of firing a 38 calibre 

projectile‖) was not sought in this case. (See Charest, supra, 602 F. 2d at p. 1016.) 

Although the Charest court might be correct that a murderer would not logically keep in 

his home a murder weapon that could be subjected to ballistic tests, in the instant case, 

defendant referred to the gun as his gun, and the crime he was accused of in relation to 

that gun was related principally to its illegal possession, not a murder. An individual who 

carries a gun and uses it to make himself feared or for protection against enemies is likely 

to keep the gun nearby rather than to continually dispose of his guns and acquire new 

ones. And the most likely places the individual would keep the gun are at his home and 

in his car. We believe the Bowers ruling was correct under the totality of the 

circumstances in that case, and we believe the totality of the circumstances in the instant 

case favors the ruling by the trial court.

It is true that ―[t]he freshness of the information on the basis of which a warrant is 

sought and obtained, is one of the factors which determine whether there is probable 

cause to believe that the articles covered by the warrant will be found at the place that is 

to be searched.‖ (People v. Hernandez (1974) 43 Cal.App.3d 581, 586.) Nevertheless, if 

circumstances would justify a person of ordinary prudence to conclude that an activity 

had continued to the present time, then the passage of time would not render the 

information stale. (People v. Hulland, supra, 110 Cal.App.4th 1646, 1652.) As noted 

previously, courts have refrained from establishing a bright-line rule for determining 

staleness. Information concerning someone who is suspected of possessing firearms 

illegally is not stale, ―even several months later,‖ because it is reasonable, and adheres to 

common sense, to believe that ―individuals who possess firearms tend to keep them for 
9

long periods of time.‖ (U.S. v. Neal (8th Cir. 2008) 528 F.3d 1069, 1074; see also U.S. v. 

Kennedy (8th Cir. 2005) 427 F.3d 1136, 1142, fn. 5; Bowers, supra, 534 F.2d at pp. 192-

193.) Additionally, courts have upheld warrants despite delays between evidence of 

criminal activity and the issuance of a warrant when there is reason to believe that 

criminal activity is ongoing or that evidence of criminality remains on the premises. 

(People v. Carrington, supra, 47 Cal.4th at pp. 163-164; Hulland, at p. 1652.) 

Defendant‘s apparent habit of carrying a gun with him constitutes ongoing criminal 

activity.

Defendant attempts to cast doubt upon Cummings‘s reliability by stating that no 

explanation was given as to why Cummings never told the police about the March 25 

incident when he ―ostensibly‖ reported the March 26 incident. As defendant 

acknowledges, Cummings was a citizen informant (rather than a police informant, paid or 

otherwise), and he was therefore presumptively reliable. (People v. Ramey (1976) 16 

Cal.3d 263, 268-269.) According to the statement of probable cause, when Detective 

Flaherty met with Cummings on June 14, 2011, Cummings had reported the two previous 

incidents, which had two separate case numbers. Cummings spoke with police at the 

time of the March 25 incident, and it is possible he believed that sufficient. In any event, 

in determining probable cause, an informant‘s reliability must be reviewed under a 

totality of the circumstances test. (Illinois v. Gates, supra, 462 U.S. at pp. 230-231.) The 

evidence presented in the search warrant affidavit ― ̳must be seen and weighed not in 

terms of library analysis by scholars, but as understood by those versed in the field of law 

enforcement.‘‖ (Id. at p. 232.) For example, ―even if we entertain some doubt as to an 

informant‘s motives, his explicit and detailed description of alleged wrongdoing, along 

with a statement that the event was observed firsthand, entitles his tip to greater weight 

than might otherwise be the case.‖ (Id. at p. 234.)

Defendant also makes much of the fact that the affidavit refers to a ―Victim 

Perry,‖ when no other information about this victim or witness is provided. The affidavit 

summarizes police report No. DR 1118-10670, and states, inter alia, that ―On April 26, 

2011 at 1330 hours Victim Perry arrived at Southeast station to make a police report 
10

about an incident that occurred on March 25, 2011.‖ Immediately before the summary of 

defendant‘s two police reports, the detective stated that he had met with Cummings on 

June 14, 2011, and Cummings ―had reported two previous incidents to the police 

reference Addendum ―A‖ DR 118-08798 and Addendum ―B‖ DR 1118-10670 which 

occurred on March 25 and March 26 of 2011 in the city of Los Angeles.‖ We agree with 

respondent that the reference to Perry was most likely made in error by Detective 

Flaherty, and the detective was referring to Cummings in that one and only mention of a 

victim Perry. Courts should not invalidate search or arrest warrants by interpreting an 

affidavit in a hypertechnical manner rather than in a common sense manner. (United 

States v. Ventresca, supra, 380 U.S. 102, 108.) Moreover, as noted by respondent, 

defendant did not question the reference to Perry in his written motion or during the 

hearing and has therefore forfeited any claim of unreliability based on a single mention of 

this name. (People v. Williams (1999) 20 Cal.4th 119, 136.)

Defendant also criticizes Detective Flaherty‘s inclusion of a summary of his 

background as a gang officer in the warrant application. We note that Detective Flaherty 

did not include information on his experience in the statement of probable cause. 

Moreover, a magistrate may consider the affiant‘s opinion, providing that the affiant has 

sufficient training and experience, when making a probable cause determination. (People 

v. Kershaw (1983) 147 Cal.App.3d 750, 760.) In the instant case, the detective‘s training 

and experience was not offered as a substitute for a lack of evidentiary nexus between the 

location to be searched and probable cause to believe the search would produce evidence 

of the suspected criminal activity, as defendant claims. Rather, the information on the 

detective‘s background was a permissible and necessary component of the totality of the 

circumstances. As the trial court observed, defendant‘s remark that he had his gun with 

him indicated a possessory interest in the gun, which corroborated the detective‘s opinion 

that gang members tended to keep their guns, and which factored into the probable cause 

assessment.

Finally, we note that the court also took into consideration defendant‘s criminal 

record, which included prior weapons violations as well as several violent crimes. A 
11

history of similar offenses is also a factor to be considered in the determination of 

probable cause. (See People v. Kershaw, supra, 147 Cal.App.3d at p. 760.)

The information in the affidavit must be taken together and read in a common 

sense manner. (See, e.g., People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783.) Even if 

this were a doubtful case, it has been held that doubtful cases of probable cause should be 

determined by the preference accorded to warrants. (United States v. Ventresca, supra, 

380 U.S. at p. 109.) ―[P]robable cause is a fluid concept—turning on the assessment of 

probabilities in particular factual contexts—not readily, or even usefully, reduced to a 

neat set of legal rules.‖ (Illinois v. Gates, supra, 462 U.S. at p. 232.) ―It is less than 

proof beyond a reasonable doubt [citation]; less than a preponderance of the evidence 

[citation]; and less than a prima facie showing [citation].‖ (Tuadles, at p. 1783.) 

Viewing the totality of the circumstances, we agree with the trial court‘s conclusion that 

the affidavit established a fair probability that firearms would be found at defendant‘s 

residence or inside his vehicle, and that the affidavit did not contain information so stale 

that it could not support a reasonable probable cause determination. Accordingly, we 

need not address appellant‘s claim that the good faith exception to the exclusion 

requirement is inapplicable. The motion to suppress evidence was properly denied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.