Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR66496
BUTZ , J.After the trial court denied his motion to suppress evidence, defendant James Edward Clancy, Jr., pleaded guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a controlled substance prior conviction (id., § 11370.2, subd. (c)).
Sentenced to six years in state prison, defendant appeals. He claims that the trial court erred in denying his motion to suppress evidence found in a search of his vehicle and a later search of his residence. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Andrew Norwood and Robert Brinton were narcotics agents with the Tehama and Glenn Methamphetamine Enforcement Team (TAGMET). TAGMET is charged with identifying narcotics traffickers in Tehama and Glenn counties and enforcing drug laws against them. Norwood was a lead agent investigating defendant for narcotics activity.
At the suppression hearing, the two agents testified as to statements made to them by two confidential informants. On February 8, 2005, Confidential Informant No. 1 (CI-1) had arranged to make a purchase of methamphetamine from defendant, whom she identified from a photograph. CI-1 reported that defendant came by her home to consummate the sale. CI-1 gave the agents the substance she said was purchased from defendant and it tested positive for methamphetamine. CI-1 later reported that she made a second purchase from defendant on March 1, 2005.
On July 12, 2005, a second informant, Confidential Informant No. 2 (CI-2) told the agents that he had purchased methamphetamine from defendant on numerous occasions and could arrange another purchase. During the day, CI-2 called defendant’s cell phone twice from a phone that was monitored by TAGMET. Each time, the person on the other end of the line, whom CI-2 identified as defendant, said that he was presently out of methamphetamine but that he was in the process of obtaining more.
Agent Norwood and other agents followed defendant on July 12 as he left his residence and drove north on Interstate 5 to Jelly’s Ferry Road. There were no homes, businesses or any other structures in the area. The agents observed defendant exit the freeway and turn onto a dirt pullout, where he met with a subject in a blue sedan for approximately five to 10 minutes.
After this meeting, defendant continued north on Interstate 5 and exited into a residential area of Anderson. The agents observed him leaving the area 20 minutes later.
As the agents followed him, defendant proceeded southbound on Highway 44 and pulled into a turn lane, abruptly pulled out, and continued through the intersection, dramatically varying his speed, turning suddenly, and stopping in the middle of the roadway. Agent Norwood described defendant’s driving as “counter-surveillance driving.” Counter-surveillance driving is commonly used by drug traffickers to elude vehicles that may be following them. Defendant got back on to Interstate 5 and traveled south. The agents continued to follow defendant into the Red Bluff area and then discontinued surveillance that day for safety reasons.
The next afternoon, agents followed defendant to a residence, where he entered and remained for approximately 10 minutes before leaving again. Agent Norwood believed that, based on his training and experience, the short stops they had observed over the two-day period were consistent with narcotics trafficking. The agents continued to follow defendant, and again noticed he was engaged in counter-surveillance-type driving.
Believing, based on the circumstances, that defendant was transporting narcotics, Agent Norwood pulled defendant over. Defendant was ordered out of his car and handcuffed. A pat search of defendant revealed $1,100 in cash in his pant’s pocket. A search of the car led to the discovery of a coffee mug holding three individual plastic baggies containing methamphetamine, a glass smoking pipe, a cellular telephone, and papers with numerous telephone numbers on them, indicative of drug sales. Defendant was taken into custody and subsequently consented to a search of his home, where officers found a large amount of cash and a cell phone bill showing charges in excess of $600.
Defendant made a pretrial motion under Penal Code section 1538.5 to suppress the fruits of the search. He argued that the agents possessed neither reasonable suspicion to conduct a traffic stop nor probable cause to conduct a warrantless search of the vehicle.
The court denied the motion to suppress. The court first stated, “there was a rational suspicion of criminal activity” to justify the traffic stop. The court opined that justification for the search of the car was a “closer question.” However, the information provided by the informants, combined with the agents’ observations of defendant’s suspicious activities, gave the agents probable cause to conduct the search.
DISCUSSION
I. Hearsay and Evidence Code Section 1042
When Agent Norwood initially testified that CI-1 called to tell him she had obtained drugs from defendant, trial counsel interposed a “hearsay” objection. The court overruled it, stating, “hearsay is admissible for purposes of probable cause.” No further objection was made to statements of informants.
In his final comments from the bench, the judge indicated that informants had not been shown to be reliable, and that their information only “loosely connected” defendant to the sale of narcotics, although the court did ultimately uphold the search.
Citing Evidence Code section 1042 (section 1042), defendant claims that because the court made a finding that the informants were not reliable, all of their statements were inadmissible as hearsay and should not have been factored into the court’s determination of whether the search of the car violated his Fourth Amendment rights. Not so.
Section 1042, subdivision (c) reads: “Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” (Italics added.)
In Parsley v. Superior Court (1973) 9 Cal.3d 934, on which defendant relies, the defendant there objected to introduction of evidence received from an informant and made repeated motions to disclose his identity, which were denied. (Id. at p. 941.) Here, however, defendant did not move at the suppression hearing for disclosure of the identities of the confidential informants, nor did he interpose an objection to their statements based on section 1042. Accordingly, the point has been forfeited. (United States v. Olano (1993) 507 U.S. 725, 731 [123 L.Ed.2d 508, 517-518]; People v. Kipp (2001) 26 Cal.4th 1100, 1124; People v. Simon (2001) 25 Cal.4th 1082, 1097 & fn. 9.)
To the extent that Parsley may be read to set forth an independent state standard for testing the validity of a search based on information from informants, it is no longer good law. Since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. (People v. Camacho (2000) 23 Cal.4th 824, 829-830.)
Defendant’s hearsay objection to the informant’s statements was not well taken. “Hearsay evidence has universally been held to establish probable cause. [Citations.] Indeed, such hearsay evidence, consisting of statements by informers to law enforcement officers, appears to be the principal basis of judicial findings of probable cause.” (Mueller v. Department of Motor Vehicles (1985) 163 Cal.App.3d 681, 685.)
II. Probable Cause
The vehicle exception to the warrant requirement requires that the police have probable cause before they enter and search a vehicle. (See Pennsylvania v. Labron (1996) 518 U.S. 938, 940 [135 L.Ed.2d 1031, 1035-1036]; California v. Carney (1985) 471 U.S. 386, 390-392 [85 L.Ed.2d 406, 412-414]; People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119.) Probable cause for a search requires 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 [76 L.Ed.2d 527, 548] (Gates).)
In reviewing a trial court’s ruling on a motion to suppress, we must defer to the trial court’s express or implied factual findings if supported by substantial evidence. We independently determine whether the facts found amount to a reasonable search or seizure under the Fourth Amendment. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
Defendant argues that the statements made by the confidential informants should have been excluded because the trial court could not determine whether the informants’ testimony was reliable. The reliability of the informant, however, is just one factor that must be taken into account in determining whether probable cause exists. (See Gates, supra, 462 U.S. at pp. 230-233 [76 L.Ed.2d at pp. 543-545.) “[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.” (Id. at p. 232 [76 L.Ed.2d at p. 544].)
In Gates, an anonymous informant with no indicia of reliability, sent a letter to the police stating that a couple was dealing drugs and detailing the method of transportation. (Gates, supra, 462 U.S. at p. 225 [76 L.Ed.2d at p. 540].) The police followed the couple and verified the suspicious activity reported in the letter. (Id. at pp. 226-227 [76 L.Ed.2d at pp. 540-541].) The court stated that, while the anonymous note would not be enough, in itself, to provide probable cause, the “totality of the circumstances,” including the statements themselves and corroboration by the police, showed sufficient veracity and basis of knowledge to be considered as part of the probable cause equation. (Id. at pp. 231-232, 243-244 [76 L.Ed.2d at pp. 543-544, 551-552].)
In People v. Rodrigues-Fernandez (1991) 235 Cal.App.3d 543 (Rodrigues-Fernandez) the defendant pulled a van into a supermarket parking lot and made a phone call from a pay phone to a beeper. He hung up and then received a call which he answered. Shortly thereafter, someone else came, spoke to him briefly and drove the van away, leaving the defendant behind. (Id. at p. 546.) The driver engaged in counter-surveillance driving before backing the van into the driveway of a house. (Ibid.) The driver and another person loaded plastic trash bags, which police recognized as the same shape typically used to transport cocaine, into the van. (Id. at pp. 546-547.) The court found probable cause to search based on the behavior of the participants and the educated inferences made by the officers about that behavior. (Id. at pp. 547-548.)
Here, the TAGMET agents were told by two informants, whom the court found had not been established as reliable, that defendant had engaged in the sale of methamphetamine on different occasions. In a monitored conversation, defendant indicated he did not have methamphetamine, but was in the process of obtaining it. While the informants’ reliability was not established, the information they provided was corroborated by defendant’s subsequent conduct over a two-day period, especially when viewed through the eyes of experienced agents trained in narcotics trafficking. As the trial court noted, a meeting at a remote pullout off Jelly’s Ferry Road, “[is] not an ordinary place where one would just go to carry on a conversation with someone.” When combined with defendant’s short stops, his brief visits at various residences and his erratic driving maneuvers indicative of counter-surveillance techniques, we find sufficient facts to warrant the inference that defendant was transporting narcotics. (See United States v. Patterson (9th Cir. 1974) 492 F.2d 995, 997 [border search of vehicle upheld based on totality of circumstances, including suspicious conduct interpreted by “an experienced border agent familiar with the methods employed by drug smugglers”].)
We conclude that the totality of the circumstances established a fair probability that methamphetamine or other evidence of narcotics trafficking would be found in defendant’s vehicle. The trial court properly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J., CANTIL-SAKAUYE , J.