Opinion
B197742
8-4-2008
THE PEOPLE, Plaintiff and Respondent, v. RASHONE ANDRE LEWIS, Defendant and Appellant.
Law Offices of Michael V. Severo and Michael V. Severo, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Rashone Andre Lewis appeals his conviction for receiving stolen property. He argues the trial court erred in denying his motion to suppress evidence gained from the search of a tractor and two trailers at the crime scene. Because the search was conducted pursuant to a warrant supported by probable cause, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
The following facts are taken from the preliminary hearing and the affidavit supporting the search warrant.
In January 2006, two cargo containers were reported stolen from a freight yard in Mira Loma. One of the containers held fax machines, and the other held multi-function copier/fax machines. Two days later, police detectives discovered one of the containers at a truck lot in Carson. The detectives began watching the container from an adjacent lot.
Late in the afternoon the following day, a black Chevrolet truck drove onto the lot, followed by a Budget rental truck and an Infiniti. Appellant exited the Infiniti and briefly conversed with the Chevrolet driver, who drove away. Appellant then spoke with another man and handed him some money; appellant unlocked a nearby Great Dane trailer, and the other man retrieved a set of tire rims and put them in the Great Dane.
Appellant walked away and returned driving a tractor. He attached the cargo container to the tractor, then maneuvered the container so that its rear entrance faced the rear entrance of the Budget truck. The Chevrolet returned, followed by a small red car from which four or five men emerged. Appellant exited the tractor and opened the cargo container doors, then reentered the tractor and backed the container against the Budget truck. The men from the red car jumped into the gap between the container and the truck. This was followed by pounding noises that sounded like boxes being thrown. After 10 to 15 minutes, the noises ceased and appellant replaced the container in its original position while the Budget truck and the Chevrolet drove away.
One of the detectives subsequently stopped the Budget truck. Inside were 100 of the missing copier/fax machines and 10 of the missing fax machines. The cargo container held several hundred of the copier/fax machines, and a locked utility trailer found attached to the tractor held several hundred of the fax machines. The tractor and the license plate of the utility trailer were registered to appellants trucking company.
Appellant was charged with three counts of receiving stolen property. (Pen. Code, § 496, subd. (a).) It was alleged that he had suffered two prior serious or violent felony convictions (§ 667, subds. (b)-(i)), and as to the second count, it was alleged that the value of the property taken exceeded $50,000. (§ 12022.6, subd. (a)(1).) He pled not guilty and filed a motion to suppress evidence seized from the tractor, the utility trailer and the Great Dane. The motion was denied. He filed a second motion to suppress, but before that motion was heard, he entered a no contest plea to the third count and admitted one prior strike. He was sentenced to 32 months in prison and the remaining counts and allegation were dismissed. This appeal followed.
All further statutory references are to the Penal Code.
Section 12022.6, subdivision (a)(1) was amended, effective January 1, 2008, to raise the statutory amount to $ 65,000. The statutory amount was $50,000 at all times relevant to this appeal.
DISCUSSION
Appellant argues the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant does not show probable cause. "`The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 384.) "When an appellate court reviews the validity of a search warrant, `the magistrates determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. . . . [Citation.]" (People v. Garcia (2003) 111 Cal.App.4th 715, 720.) "`In determining whether an affidavit is supported by probable cause, the magistrate must make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." [Citation.] The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances. [Citation.] [Citation.]" (Ibid.)
The trial court ruled that appellant had a reasonable expectation of privacy in all three locations named in the warrant, and respondent does not contest that ruling.
Appellant contends, and respondent does not dispute, that certain information in the affidavit must be excised because the information was gained from a warrantless search. The affidavit states that one of the detectives opened an unlocked inspection window at the rear of the utility trailer and looked inside, where he saw several boxes resembling the boxes found in the Budget rental truck. We shall assume for purposes of this discussion that the detectives act constituted an illegal search, and that what he saw inside the trailer was thereby tainted. "As the reviewing court we must excise all tainted information from the search warrant but uphold the warrant if the remaining information establishes probable cause." (People v. Morton (2003) 114 Cal.App.4th 1039, 1049 [excising information resulting from warrantless entry onto defendants property].)
The remaining information in the affidavit establishes probable cause to search the tractor and both of the trailers. Because appellant used the tractor to facilitate the unloading of the stolen machines, it was probable that a search of the tractor would yield evidence of a crime. The Great Dane trailer appeared to be in appellants use or possession, as property apparently belonging to appellant was placed inside it. The Great Danes VIN also had been removed, which suggests efforts to conceal its identity. Because appellant was suspected of involvement with the theft, and because the stolen container was found in close proximity to the Great Dane, it was probable that stolen machines or evidence of their theft would be found in there. Finally, the utility trailer was initially connected to the tractor, and it was reconnected after the container was moved. The utility trailers license plate was registered to appellants trucking company, but it did not match the utility trailers VIN number, again suggesting efforts to conceal the trailers identity. Like the Great Dane trailer, the utility trailer appeared to be connected to a suspect of the crime, was in close proximity to the stolen container and had compromised identifying information. There was a fair probability the utility trailer contained stolen property or evidence of a crime.
The affidavit initially states the utility trailers license plate number as 4FC4958, but later states it as 4FF9787, which is the Great Danes license plate number. The trial court found that this discrepancy was a typographical error that would not have misled the magistrate.
Appellant claims the affidavit is ambiguous and lacks particularity, and at oral argument, he asserted that the warrant and affidavit are broad enough to authorize a search of his house. This argument lacks merit; the warrant authorizes the search of the tractor, utility trailer and Great Dane trailer, and only those vehicles. The warrant specifically describes those vehicles appearances and license plate numbers, the VIN numbers of the tractor and the utility trailer, and the fact that the Great Dane was missing its VIN number and had a defaced "blue tag." The affidavit describes those vehicles in the same amount of detail.
DISPOSITION
The judgment is affirmed.
We concur:
Willhite, J.
Manella, J.