Opinion
G057648
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. CONRADO NAJERA et al., Defendants and Appellants.
Michael Ian Garey for Defendant and Appellant Conrado Najera. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Juan Luis Alonso Benitez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF3412) OPINION Appeal from judgments of the Superior Court of Orange County, Glenn R. Salter, Gary S. Paer, Patrick Donahue, Michael A. Leversen, and Andre Manssourian, Judges. Affirmed. Michael Ian Garey for Defendant and Appellant Conrado Najera. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Juan Luis Alonso Benitez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Conrado Najera and Juan Luis Alonso Benitez appeal from judgments after they pleaded guilty to three counts of possessing narcotics for sale and quantity enhancements. Najera and Benitez argue trial judges erred by denying their motions to quash and traverse the search warrant, and motions to suppress evidence. None of their contentions have merit, and we affirm the judgments.
FACTS
I. Search Warrant Affidavit
In a search warrant affidavit, Orange County Sheriff's Deputy Bryan Larson sought to search 100 North Rob Way, Apartment No. 332 (Rob Way), for evidence of methamphetamine sales. He provided the following statement of probable cause. Larson spoke to a confidential informant (CI) who stated the CI could purchase methamphetamine from a man named "Juan," later identified as Benitez. Larson monitored a telephone call where the CI arranged to purchase methamphetamine from Benitez. Minutes later, the deputies watched the CI purchase methamphetamine from Benitez. While Larson met with the CI, the deputies followed Benitez, who was driving a black Honda Civic (Honda) registered to Nydia Avalos, to 118 North Muller Street, apartment No. 204 (Muller Street). Larson determined Benitez lived at Muller Street and he was on probation with a search and seizure condition. After investigating the Honda's history in law enforcement databases, a Drug Enforcement Agency agent (DEA agent) called Larson and told him that about 14 months earlier, he arrested Benitez and two family members for transporting/selling methamphetamine while driving the Honda.
Within 10 days, on December 7, 2016, at about 11:00 p.m., the deputies watched Benitez drive the Honda from Muller Street to Rob Way. Benitez entered the apartment, stayed for a few minutes, and left the apartment. Benitez drove the Honda to another location in Garden Grove, stayed for a few minutes, and drove back to Muller Street.
The next day, at about 8 p.m., the deputies watched Benitez, Avalos, and Ana Trujillo leave Muller Street and get into a blue Jeep Liberty (Jeep) with paper license plates. Benitez drove the Jeep to Rob Way. Najera walked out of Rob Way and got into the Jeep. Benitez drove the Jeep until the deputies conducted a traffic stop (Veh. Code, § 5200, subd. (a) [two license plates required].) The deputies removed the five occupants because of Benitez's probation status and requested a K-9 unit (the canine). Later, the canine alerted to the odor of narcotics in the Jeep. Before a deputy searched Avalos, she appeared to injure her ankle and went to the hospital. At the hospital, a female deputy saw Avalos remove something from her shirt and hide it behind her back; it was a Ziploc bag containing 113 grams of methamphetamine. Based on his training and experience, Larson opined Benitez used Rob Way to store narcotics.
There was also a baby in the Jeep.
Hours later, a search warrant was issued authorizing a search of Rob Way for evidence of methamphetamine trafficking. The deputies executed the search warrant and found over 10 kilograms of methamphetamine, over 10 kilograms of heroin, and over four kilograms of cocaine. The deputies also found a safe containing over $55,000 and indicia of drug sales. Inside a cabinet in the hallway closet, the deputies found a November 3, 2015, "Notice to Pay Rent or Quit" addressed to Benitez and Najera. II. Trial Proceedings A. Najera's Initial Motions
After a complaint charged Najera and Benitez with various drug offenses and enhancements, Najera filed a motion to quash and traverse the search warrant, and a motion to suppress evidence. He argued the detention was unjustified and unreasonably prolonged, Benitez's probation search condition did not justify the search, the patdown search was unreasonable, the canine alert did not justify the detention and search, the search of the Jeep was unlawful because Najera did not have access to it, and the search of Rob Way was unlawful. The prosecution opposed the motion.
At a combined preliminary hearing for both defendants, and hearing on Najera's motions before Judge Glenn Salter, the prosecution and Najera offered evidence. Benitez did not join in Najera's motions. On December 7, 2016, deputies Philip Avalos and Boris Garcia conducted surveillance of Rob Way. At approximately 11:10 p.m., Avalos saw Benitez walking alone towards Rob Way. He entered the apartment with minimal, if any, delay. After staying less than five minutes, Benitez left the apartment alone and did not appear to be carrying anything.
The next day, the deputies continued surveillance of Rob Way. At approximately 7:50 p.m., the Jeep left the Muller Street area and drove to the Rob Way area. The Jeep stopped, and a man wearing a black hoodie exited Rob Way empty handed.
At 7:57 p.m., the deputies Tyler Robertson and Jasen DePasquale were on patrol in Anaheim. The deputies were informed to look for the Jeep and develop probable cause to stop it. Robertson saw the Jeep and initiated a traffic stop because he suspected the Jeep was missing a front license plate. The Jeep's back window was tinted. The Jeep pulled over.
Robertson approached from the driver's side, and DePasquale from the passenger's side. Inside the Jeep were Benitez (driver), Najera (front passenger), Avalos, Trujillo, and a baby. Robertson saw the registration was taped to the front windshield.
Benitez stated he was on "active probation" and the Jeep belonged to Najera. Najera explained that because he had recently purchased the Jeep, he had only one paper plate and the registration was taped to the windshield.
DePasquale obtained the registration and was investigated the vehicle identification number (VIN). Robertson collected the suspects' identifications and performed background checks, which took about 10 minutes. Robertson confirmed Benitez was on probation and subject to a search and seizure condition.
The probation condition required Benitez to submit to a search of "his person, property, including any residence, premises, container, or vehicle under his control to search and seizure at any time of the day or night, by any law enforcement officer . . . with or without a warrant, probable cause, or reasonable suspicion."
About 10 minutes after the stop, the deputies had everyone get out of the Jeep. The deputies performed a records check that showed the Jeep was not registered in California. The deputies continued to investigate where the Jeep was registered. Robertson did not write a ticket for the missing front license plate. He did not have an arrest or search warrant at the time of the stop.
Robertson conducted a probation search of Benitez but found no evidence of drug use or sales; he placed him in his patrol vehicle. DePasquale also searched him. Tiscareno searched Najera and had him sit on the curb.
The deputies searched the Jeep. The deputies found a key to Rob Way in the Jeep's center console. Robertson noticed a red button below the steering wheel that connected to the battery. The deputies thoroughly searched the Jeep but found no drugs. However, just below the steering wheel, Avalos saw a switch that was wired into the engine compartment. He also saw the glove compartment fall open to expose a void within the dashboard. Based on the switch and void area, Avalos believed the Jeep had a hidden compartment, and a canine was requested. At 9:04 p.m., a deputy and the canine officer responded to the scene.
About 10 minutes later, Avalos, who was pregnant, stated she hurt her ankle and requested treatment. At approximately 9:20 p.m., paramedics took Avalos to the hospital. Robertson accompanied her in the ambulance. Deputy Christina Strunk followed in a patrol car. At the hospital as Avalos was undressing, Strunk discovered Avalos had what was later determined to be 113.3 grams of methamphetamine hidden in her clothes. Based on the quantity of the substance, Strunk believed it was possessed for sale.
After a probation search of Muller Street uncovered no contraband, Larson drafted the search warrant. Judge Michael J. Cassidy signed the search warrant at 12:39 a.m., and the deputies executed it about 10 minutes later. Najera remained in custody for over five hours.
Najera offered the following evidence. On December 7, 2016, at 11 p.m., Garcia saw Benitez go into the Rob Way walkway, "but did not see him enter the door." Avalos did not see if Benitez knocked on the door or how he got in the apartment. Larson admitted the affidavit was incorrect that Garcia saw Benitez enter Rob Way. He said there was a lot happening and many people were giving him information.
On December 8, 2016, Sergeant Patrick Rich saw the Jeep parked in front of Muller Street. He saw Benitez and two women get into the Jeep. At about 7:50 p.m., Wilder saw a man leave Rob Way and walk through a breezeway. Wilder heard a vehicle door close, but when he got to the alley, the vehicle was gone. Larson admitted the affidavit was incorrect about Wilder seeing the man wearing a black hooded sweatshirt exit Rob Way and get into the Jeep.
As to the traffic stop, DePasquale testified Najera stated he owned the Jeep, the registration bearing Najera's name was taped to the front windshield, and the registration did not appear fraudulent. DePasquale checked the Jeep's VIN to verify the information, but he was unable to locate the VIN after numerous attempts. DePasquale also checked the Jeep's passengers' identifications while he was checking the VIN. His inquiry lasted approximately 30 minutes. Deputy Arthur Tiscareno conducted a patdown search of Najera and searched his pockets but found no weapons or contraband.
Judge Glenn R. Salter denied the motions. As to the motion to suppress, the trial court relied on In re Raymond C. (2008) 45 Cal.4th 303 (Raymond), to conclude the initial stop was proper. The court agreed with Najera that if the deputies checked the registration and determined the Jeep was registered in California, the deputies' inquiry should have ended. The court continued, however, by noting the deputies could not verify the Jeep was registered in California and "that gives the [deputies] a little additional time." Based on the evidence offered at the preliminary hearing, the court concluded the deputies' investigation of the VIN was timely and proper. The court stated the deputies learned Benitez was on probation before they learned the Jeep was not registered in California. The court thus concluded the deputies' search of the Jeep's passengers was timely and proper. The court denied Najera's motion to suppress.
As to the motions to quash and traverse the search warrant, the trial court stated that "at least some information in there is inaccurate." Based on the court's observations of the witnesses and assessing their credibility, the court concluded Larson knew or should have known the information that Garcia saw Benitez enter Rob Way and Wilder saw a man wearing a black hooded sweatshirt exit Rob Way and enter the Jeep was false. The court opined however Larson did not attempt to mislead the magistrate. The court distinguished Greenstreet v. County of San Bernardino (9th Cir. 1994) 41 F.3d 1306 (Greenstreet), and concluded there was probable cause to search Rob Way. The court explained the deputies were trying to connect Benitez to Rob Way. The court opined the "Notice to Pay Rent or Quit," which was over one year old, did not "carry a lot of probative value." After reading the affidavit and disregarding "for the most part" the inaccurate information, the court concluded there was sufficient probable cause for the search warrant. The court added, "I don't think that any of the reasons why you would invalidate the search warrant applies in this particular circumstance." The court denied the motion to quash and traverse. Based on the evidence produced at the preliminary hearing, the court held Najera and Benitez to answer. B. Charging Document & More Motions
An information charged Najera and Benitez with the following: possession of heroin for sale (Health & Saf. Code, § 11351) (count 1); possession of cocaine for sale (Health & Saf. Code, § 11351) (count 2); and possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 3). The information alleged they possessed over 10 kilograms of heroin (Health & Saf. Code, § 11370.4, subd. (a)(3)), over four kilograms of cocaine (Health & Saf. Code, § 11370.4, subd. (a)(2)), and over 10 kilograms of methamphetamine (Health & Saf. Code, § 11370.4, subd. (b)(3)). The information also alleged they both suffered a prior serious and violent felony (Pen. Code, §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)).
In count 4, the information charged Avalos with possession of methamphetamine for sale.
Najera filed a motion to set aside the information on Fourth Amendment grounds, which the prosecution opposed. Judge Gary S. Paer denied the motion.
Najera filed a motion to quash and traverse the search warrant and a motion to suppress evidence. After the prosecution opposed the motions, Judge Patrick Donahue denied them.
Benitez filed a motion to quash and traverse the search warrant, and motion to suppress evidence. In his motion, Benitez argued he had a reasonable expectation of privacy in Rob Way, Larson included false statements in the affidavit, and after excising those false statements, the affidavit did not establish probable cause. In addition to the two false statements Najera raised, Benitez asserted a third—as to the incident 14 months before the offenses here, the DEA agent would testify Benitez drove an Acura TL, not the Honda. The prosecution opposed the motions.
Judge Michael A. Leversen denied Benitez's motions. After taking judicial notice of the case where Benitez was placed on the search and seizure condition, Judge Leversen concluded the search of Rob Way was legal. Benitez's counsel argued the deputies obtained the warrant for Rob Way because they were not sure it was Benitez's apartment. Judge Leversen stated two other judges already ruled on these issues as to Najera and because Benitez asserted he had an ownership interest in Rob Way, he thought it was sufficient Benitez was subject to a search condition. Benitez's counsel requested a hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154. Judge Leversen stated he had read and considered the search warrant and the preliminary hearing transcript and although he could not rule on it, he would conclude that after excising the inaccurate statements, the affidavit establishes probable cause. The prosecutor interjected that because Benitez was trying to make a prima facie showing, the judge could make that ruling. Judge Leversen said, "Yeah. All right. Then I do make that ruling."
Before Judge Andre Manssourian, Najera and Benitez pleaded guilty to the charges and the enhancements. The trial court sentenced Najera and Benitez to 12 years in prison.
DISCUSSION
I. Najera A. Motion to Suppress 1. Traffic Stop
Najera complains the traffic stop was a pretext and was unlawful. It was not.
"The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] 'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citation.] Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. [Citations.]" (Raymond, supra, 45 Cal.4th at p. 307.)
"[W]hen there is articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her driver's license and the vehicle's registration. [Citations.]" (People v. Saunders (2006) 38 Cal.4th 1129, 1135 (Saunders).)
"In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. [Citation.] 'We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]' [Citation.]" (Raymond, supra, 45 Cal.4th at p. 306.)
As Najera concedes, Raymond, supra, 45 Cal.4th 303, is controlling here. In that case, a police officer observed minor driving a vehicle without license plates or a temporary operating permit in the rear window. (Id. at p. 305.) The officer could not see whether there was a temporary operating permit in the front window, and he stopped the vehicle for the apparent license plate violation. (Ibid.) The stop led to charges minor had been driving under the influence of alcohol. (Id. at pp. 305-306.) At a suppression hearing, evidence was presented that there was a temporary operating permit on the front window. (Id. at p. 306.)
After stating sufficient evidence supported the officer's reasonable suspicion minor committed a Vehicle Code violation, the Raymond court explained that although the officer was permitted to investigate further, "[t]he question is whether [the officer] was allowed to stop the car in order to continue his investigation." (Raymond, supra, 45 Cal.4th at p. 307.) The court rejected minor's argument "the officer should have driven around the vehicle to see all the windows." (Id. at p. 308.) The court held that even if the officer could have done as minor suggested, "he was not required to do so." (Ibid.) "'The reasonableness of [an] officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.' [Citation.] Nor is an officer required to eliminate all innocent explanations that might account for the facts supporting a particularized suspicion." (Ibid.)
Here, substantial evidence supported the magistrate's conclusion the deputies did not see the Jeep's registration on the front windshield. Robertson was behind the Jeep. He only saw a paper license plate on the back. The Jeep had tinted rear windows, which Robertson could not see through. He was not required to drive in front of the Jeep to determine whether the registration was affixed to the front windshield.
Unlike in People v. Hernandez (2008) 45 Cal.4th 295, 297, where a deputy saw defendant drive a vehicle without license plates but with a temporary operating permit on the back window, here Robertson could not see whether there was a front license plate or a temporary operating permit on the front window. (Saunders, supra, 38 Cal.4th at p. 1136 [lack of front license plate legitimate basis for stop]; People v. Gomez (2004) 117 Cal.App.4th 531, 537 [stopping vehicle for Vehicle Code violation even if done as pretext entirely legal].) Thus, articulable facts supported Robertson's reasonable suspicion the Jeep was being driven in violation of the Vehicle Code. 2 . Detention & Searches
Najera contends the detention was prolonged and the searches were unlawful. Not so. a. Initial Detention & Search
The Attorney General concedes Najera had standing to challenge the search pursuant to Benitez's probation search condition. (See People v. Schmitz (2012) 55 Cal.4th 909, 930-933 (Schmitz).) The prosecution did not raise the issue below.
"'A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the "specifically established and well-delineated exceptions."' [Citation.] One such exception exists for probation searches. [Citation.] By accepting a search and seizure condition, a probationer gives advance consent to a search, and a police officer may conduct a reasonable search even without a particularized suspicion of criminal activity. [Citation.]" (People v. Rosas (2020) 50 Cal.App.5th 17, 24 (Rosas).)
During a traffic stop, an officer seizes everyone in the vehicle. (Arizona v. Johnson (2009) 555 U.S. 323, 327.) It is reasonable for passengers to expect officers will exercise unquestioned police command and not let passengers move around in a manner that will jeopardize the officers' safety. (Brendlin v. California (2007) 551 U.S. 249, 258.) Indeed, during a traffic stop officers may order passengers out of the vehicle until officers complete the stop. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415.) Drivers and passengers have a reduced expectation of privacy in a vehicle's interior and its contents. (Wyoming v. Houghton (1999) 526 U.S. 295, 303.)
Here, during Robertson's initial contact with Benitez, Benitez told Robertson he was on probation. Within 30 minutes, the deputies confirmed Benitez was subject to a probation search and seizure condition. Once Benitez told the deputies he was on probation, they were justified in prolonging the detention to investigate his probationary status. Additionally, the deputies could order everyone out of the Jeep until they completed their investigation.
Najera cites to a number of cases where the officer was unaware the defendant was subject to a probation search condition (Rosas, supra, 50 Cal.App.5th at p. 24; People v. Thomas (2018) 29 Cal.App.5th 1107, 1115; U.S. v. Caseres (9th Cir. 2008) 533 F.3d 1064, 1076.) Here, Robertson testified he confirmed Benitez was subject to a probation search condition. Najera also complains the deputies did not know of the "nature" of Benitez's probation search condition. To the contrary, the deputies knew he was subject to search and seizure terms, a standard provision, and that authorized them to search the vehicle.
Therefore, the deputies search and seizure of the Jeep was permissible under the scope of Benitez's probation search condition, and the deputies were allowed to detain the occupants during that search. (Schmitz, supra, 55 Cal.4th at p. 924 [driver's expectation of privacy further diminished when he allows others to ride in vehicle thus ceding some measure of privacy to them].)
Citing to Vasquez v. Lewis (10th Cir. 2016) 834 F.3d 1132 (Vasquez), Najera also contends his detention and the deputies' search of the Jeep was unlawful because they had already seen the Jeep's registration. Had Benitez not offered he was on probation, we would agree.
Warrantless probation searches are reasonable so long as the status of the probationer is known to the officer, and the search is not arbitrary, capricious, or harassing. (Samson v. California (2006) 547 U.S. 843, 846; Schmitz, supra, 55 Cal.4th at p. 916 [passenger parolee]; People v. Cervantes (2017) 11 Cal.App.5th 860, 868, 870-871 [extending Schmitz to passenger probationer].) A search is arbitrary and capricious when the officer's motivation for the search is based on personal animosity or is unrelated to rehabilitative, reformative or legitimate law enforcement purposes. (People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Law enforcement may not extend a traffic stop with tasks unrelated to the traffic mission absent independent reasonable suspicion. (Rodriguez v. U.S. (2015) 575 U.S. 348, 354-355 (Rodriguez); People v. Espino (2016) 247 Cal.App.4th 746, 756-757.)
At the outset, Benitez told Robertson he was on probation, and Robertson was permitted to investigate his probationary status. While he did that, DePasquele ran the Jeep's VIN without success. This was a unique situation where Robertson justifiably operated under an exception to the warrant requirement while Depasquale's investigation revealed an independent basis to justifiably continue the detention. In other words, the deputies lawfully stopped the Jeep for a suspected Vehicle Code violation, extended the search pursuant to Benitez's probation search condition, and further prolonged the detention to ascertain where the Jeep was registered. The deputies were not required to accept Najera's claim he owned the Jeep when the registration did not bear out that claim.
Unlike in Vasquez, supra, 834 F.3d at pages 1136-1138, where the officers' asserted basis for extending the detention to conduct a drug dog search did not establish reasonable suspicion, here the deputies had a legitimate law enforcement purpose to continue the investigation. They also were justified in searching the Jeep pursuant to Benitez's probation search condition. The deputies were unable to determine who owned the Jeep, and because Benitez exercised control over the Jeep, the deputies could lawfully search it.
Najera asserts the deputies did not have reasonable suspicion to request he produce identification. "'"[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]" [Citation.]' [Citation.]" (People v. Vibanco (2007) 151 Cal.App.4th 1, 13.) Here, the deputies were investigating Benitez's probationary status and the Jeep's registration. Requesting Najera's identification and investigating his background did not unnecessarily prolong the stop. United States v. Landeros (9th Cir. 2019) 913 F.3d 863, 870, a case where the court held reasonable suspicion did not support extension of the stop, is of no help to Najera. Nor is People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1161, a case he cites for the first time in his reply brief, because in that case the prolonged detention was not justified by independent reasonable suspicion.
Najera also contends Tiscareno impermissibly conducted a patdown search and searched his pockets. It is true that during an ordinary traffic stop an officer may not patdown a driver or passenger absent reasonable suspicion they may be armed and dangerous. (Knowles v. Iowa (1998) 525 U.S. 113, 117-118.) Najera was not subject to a probation search condition, and the prosecution offered no evidence he was armed and dangerous. Nevertheless, this brief search did not lead to the discovery of any incriminating evidence and thus Najera did not suffer any harm. (See People v. McKay (2002) 27 Cal.4th 601, 608 [remedy for illegal search exclusion of evidence].)
Relying on People v. Romeo (2015) 240 Cal.App.4th 931, 953-955, Najera asserts the trial court erroneously admitted evidence Benitez was on a probation search and seizure condition and the VIN number because it was hearsay and without foundation. Other than citing to Romeo, Najera provides no reasoned analysis as to how the trial court committed error. His claims are forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793 [assertions not supported by legal authority and reasoned argument forfeited].)
Finally, Najera cites to numerous federal circuit court cases. Although persuasive, we are not bound by them (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296), and they do not alter our conclusion. One case does warrant mentioning.
In U.S. v. Digiovanni (4th Cir. 2011) 650 F.3d 498, 501-505, abrogated on other grounds in Rodriguez, supra, 575 U.S. 348, a police officer stopped defendant motorist for tailgating but abandoned that purpose and embarked on a drug investigation for the first 10 minutes of a 15-minute stop. The appellate court affirmed the district court's suppression of evidence, over 34,000 oxycodone pills, because the officer failed to act with sufficient diligence in pursuing the investigation that gave rise to the initial stop and lacked reasonable suspicion that other criminal activity was afoot to prolong the stop. (Id. at pp. 509-510.) Here, in constrast, Benitez's probation search condition justified prolonging the detention. b. Continued Detention & Search
"[A] probationer subject to a search condition retains the right to be free from a search that is arbitrary, capricious or harassing. A search is arbitrary 'when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee.' [Citation.] A search is a form of harassment when its motivation is a mere whim or caprice. [Citation.]" (People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.)
Here, as we explained above, because Benitez was in control of the Jeep and was subject to a probation search condition, the deputies could lawfully search the Jeep. During that search, the deputies discovered a void behind the dashboard and a switch wired to the engine. Based on this evidence, the deputies had reasonable suspicion Najera and Benitez were engaged in the sale of illegal narcotics and requested a canine. A traffic stop may last as long as necessary to dispel or confirm the officer's reason for the traffic stop as long as officers act diligently and use the least intrusive means reasonably available. (People v. Celis (2004) 33 Cal.4th 667, 674-675.) The deputies were thus justified in searching the Jeep.
Najera complains there was no evidence in the testimonial portion of the suppression motion that the canine alerted and thus the detention was unlawfully prolonged. There was testimony that Avalos was in the Jeep and was later discovered with 113 grams of methamphetamine. That the canine alerted was a reasonable conclusion. Clearly, had the deputies testified the canine alerted, the evidence would have been stronger. But the absence of that evidence does not establish a lack of probable cause.
Finally, unlike in Rodriguez, supra, 575 U.S. at page 357, where an officer impermissibly extended a traffic stop to conduct a canine drug sniff because he did not have reasonable suspicion, the probation search condition here justified prolonging the detention to dispel the deputies' suspicions criminal activity was afoot. The deputies were justified in prolonging the detention to search the Jeep pursuant to Benitez's probation search condition and then pursuant to modifications to the Jeep consistent with drug trafficking. B. Search Warrant—Probable Cause
Najera contends the search warrant was not supported by probable cause because there was no nexus between Rob Way and any illegal activity. We disagree.
"The pertinent rules governing a Fourth Amendment challenge to the validity of a search warrant, and the search conducted pursuant to it, are well-settled. 'The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.' [Citations.] 'The test for probable cause is not reducible to "precise definition or quantification."' [Citation.] But we have stated that it is '"less than a preponderance of the evidence or even a prima facie case."' [Citation.] '"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."' [Citations.] 'The magistrate's determination of probable cause is entitled to deferential review.' [Citations.] . . . [T]he warrant 'can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence' supporting the finding of probable cause." (People v. Westerfield (2019) 6 Cal.5th 632, 659-660.)
Najera cites to People v. Weiss (1999) 20 Cal.4th 1073, 1083, for the proposition that if law enforcement includes tainted information, i.e., illegally obtained evidence, in a search warrant affidavit, an appellate court should not defer to the sanctity to warrants. Here, we are concerned with two inaccurate statements, and not any illegally obtained evidence.
Here, the affidavit contained evidence demonstrating a nexus between Rob Way and illegal narcotics trafficking. Within 10 days before the incident here, Larson monitored a telephone call where the CI arranged to purchase methamphetamine from Benitez. The deputies observed the CI purchase methamphetamine from Benitez. Benitez was on probation for assault with a deadly weapon with a search condition and he told his probation officer he lived at Muller Street. Around midnight the evening before the incident here, the deputies saw Benitez leave a restaurant, drive the Honda, Avalos's car, to Rob Way where he stayed for a couple minutes, drove to an address in Garden Grove where he stayed for a few minutes, and drove home to Muller Street. Based on his training and experience, Larson believed that Benitez used Rob Way to store narcotics to avoid law enforcement detection.
The next day, Benitez drove the Jeep to Rob Way. Najera was not yet a passenger in the Jeep. A man wearing a black hooded sweatshirt exited Rob Way. When the deputies stopped the Jeep, Najera was a passenger. A canine alerted the deputies to the odor of narcotics inside the Jeep. Additionally, Strunk later discovered Avalos was carrying 113 grams of methamphetamine. Based on this evidence, we conclude there was probable cause to search Rob Way.
Najera complains the affidavit included no facts as to the canine's training and qualifications. On review of a search warrant affidavit, our role is to simply determine whether the affidavit states facts demonstrating probable cause. The affidavit here includes sufficient competent evidence establishing probable cause.
Najera cites to a number of cases to support his contention the search warrant affidavit was speculative and without reasonably trustworthy information. (See People v. Nguyen (2017) 12 Cal.App.5th 574, 585 [probable cause requires reasonably trustworthy information].)
In People v. Hernandez (1994) 30 Cal.App.4th 919, 923 (Hernandez), a search warrant affidavit stated the officers observed a known narcotics dealer park a particular Camaro behind the residence on one occasion. During a narcotics transaction, the officers saw the dealer driving a particular Oldsmobile, and weeks later, they also saw this car parked behind the residence. However, the affidavit included no information as to whether the dealer ever owned the residence, received mail there, entered it, or carried packages to or from it, or owned either the Camaro or the Oldsmobile. (Id. at pp. 923-924.) Based on this evidence, the court declined to conclude the presence of the two cars justified the magistrate's conclusion there was a fair probability the place to be searched contained contraband. (Id. at pp. 924-925.)
In Greenstreet, supra, 41 F.3d at page 1309, the search warrant affidavit stated a known narcotics dealer was seen at "the alleged locus of the drug ring and then at some point, went to [p]laintiffs' residence." The affidavit included no information how many times the known narcotics dealer went to plaintiffs' residence, what he did while he was there, or who actually lived there. (Ibid.) Najera's reliance on Hernandez and Greenstreet is misplaced.
As we explain above, the affidavit contained reasonably trustworthy information Benitez, who recently sold methamphetamine to a CI, made a midnight drive from a restaurant to Rob Way, where he stayed for less than five minutes, to a residence in Garden Grove, where he stayed for less than five minutes, and then home to Muller Street. The following evening, Benitez drove Avalos, who was carrying over 100 grams of methamphetamine, to Rob Way to pick up Najera before the deputies stopped the Jeep and a canine alerted to the smell of narcotics in the Jeep. This was sufficient evidence the deputies would find contraband at Rob Way.
Najera's reliance on other California and federal cases does not compel a different conclusion. (People v. Garcia (2003) 111 Cal.App.4th 715, 721; United States v. Grandberry (9th Cir. 2013) 730 F.3d 968, 976-977; United States v. Underwood (9th Cir. 2013) 725 F.3d 1076, 1085-1086; United States v. Hove (9th Cir. 1988) 848 F.2d 137, 139-140.) The affidavit included sufficient competent evidence of probable cause to search Rob Way. C. Search Warrant—False Statements
Najera asserts the trial court erred by denying his motion to quash and traverse the search warrant because Larson included two false statements in his affidavit and without those statements the affidavit did not establish probable cause. Again, we disagree.
"Under Franks v. Delaware [(1978)] 438 U.S. 154, a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. [Citation.] Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] 'Moreover, "there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant['s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine. . . . The motion for an evidentiary hearing must be 'accompanied by an offer of proof . . . [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished,' or an explanation of their absence given."' [Citations.] Finally, '[a] defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 456 (Panah).) We review the denial of a Franks hearing de novo. (Id. at p. 457. )
Here, Najera failed to carry his burden of establishing Larson deliberately included false statements or made them in reckless disregard for the truth. At the hearing, Larson acknowledged the affidavit included two false statements—Garcia saw Benitez enter Rob Way and Wilder saw a man wearing a black hooded sweatshirt exit Rob Way and enter the Jeep. However, he explained the situation was fluid and people were sending him a lot of information. Based on his testimony, which the trial court found credible, we conclude Larson's misrepresentations were at worst negligent or innocent mistakes.
Additionally, the affidavit established probable cause without considering the two false statements. As we explain above, about one week before the incident here, the deputies observed Benitez sell the CI methamphetamine. About midnight the night before the incident here, the deputies saw Benitez drive the Honda to Rob Way where he stayed for a couple minutes, drove to an address in Garden Grove where he stayed for a few minutes, and drove home to Muller Street. Larson opined Benitez used Rob Way to store narcotics to avoid detection. The next day, Benitez, drove to Rob Way in the Jeep to pick up a man who exited Rob Way. Minutes later when the deputies stopped the Jeep, Najera was a passenger, and claimed he owned the Jeep. This evidence reasonably supported the inference it was Najera who exited Rob Way. Later, a canine alerted to the odor of narcotics in the Jeep, and Avalos was discovered with over 100 grams of methamphetamine, an amount suggesting it was possessed for sales.
Najera's reliance on United States v. Perkins (9th Cir. 2017) 850 F.3d 1109, 1119, where the investigating agent omitted material information from the warrant application is inapposite and of no help to him. Based on the above stated evidence, and without considering the two inaccurate statements, we conclude the affidavit established probable cause to search Rob Way. II. Benitez
Benitez argues the trial court erred by denying his motion to quash and traverse the search warrant without conducting a Franks hearing because the affidavit included false statements that were critical to establishing probable cause to search Rob Way. Not so.
Once more, to obtain a Franks postsearch evidentiary hearing on whether there has been official misconduct in drafting the affidavit, the defendant must make a substantial preliminary showing that (1) the affiant has made statements that were deliberately false or in reckless disregard of the truth and (2) the affidavit's remaining content after its false statements are excised is insufficient to justify a finding of probable cause. (Panah, supra, 35 Cal.4th at p. 456.)
Here, contrary to Benitez's claim, Judge Leversen after initially limiting the basis for his ruling to the fact Benitez was subject to a probation search condition, also ruled Benitez failed to carry his burden under Franks. As we explain above concerning the two problematic statements, the evidence supported the conclusion Larson did not intentionally or recklessly include the two statements in the affidavit. As to Benitez's offer of proof, the DEA agent's testimony regarding what type of car Benitez used to transport narcotics 14 months before, was of limited, if any, materiality.
Again, without considering Larson's inaccurate statements, the affidavit established probable cause to connect Rob Way to illegal activity. About one week before the deputies stopped the Jeep, they observed Benitez sell methamphetamine to the CI. Very late the night before the incident here, the deputies saw Benitez drive the Honda to Rob Way and then to an unknown destination, staying only minutes at each location. Based on his experience and training, Larson believed Benitez stored narcotics at Rob Way. The next evening, the affidavit reasonably supported the conclusion Benitez drove the Jeep to Rob Way to pick up Najera. Soon after, a canine alerted to the smell of narcotics in the Jeep and Avalos was discovered to be carrying an amount of methamphetamine consistent with sales. Based on the above stated evidence, and without considering the inaccurate statements, we conclude the affidavit established probable cause to search Rob Way.
Finally, Benitez now claims his probation search condition could not be used to justify searching those areas of Rob Way, two bedrooms and a closet, where he did not exercise dominion and control. But at trial, Benitez argued the affidavit included no facts he exercised dominion and control over Rob Way, although he also asserted that as a tenant, he had a reasonable expectation of privacy in Rob Way. We decline to address Benitez's new claim on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136 [elemental matter of fairness giving each party opportunity to adequately litigate issues raised during argument].)
DISPOSITION
The judgments are affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.