Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF114824A. James M. Stuart, Judge.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J., and Gomes, J.
INTRODUCTION
On August 4, 2006, after the trial court had denied a suppression motion, appellant, Francisco Javier Lopez, entered into a plea agreement pleading no contest to allegations that he possessed methamphetamine for sale (Health and Saf. Code, § 11378) and was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). Under the agreement, Lopez would be sentenced to prison for no more than four years four months.
Unless otherwise indicated, all statutory references are to the Penal Code.
On August 29, 2006, the court sentenced Lopez to prison for one year four months for possession of methamphetamine for sale and a consecutive sentence of three years for personal possession of a firearm. Lopez’s total prison term is four years four months. On appeal, Lopez contends the trial court erred in denying his suppression motion because there was insufficient probable cause set forth in the search warrant affidavit to issue a warrant and that there was insufficient evidence of the informant’s reliability. Appellant further contends the court improperly denied his attempt to prove there was a false statement in the warrant affidavit.
FACTS
The affidavit for the search warrant was prepared by Officer C. Madden and was presented to and signed by the magistrate on May 25, 2006. Madden was assigned to the Bakersfield Police Department Kern Narcotics Enforcement Team (KNET) for six months following an assignment to a special enforcement unit of the police department for three and a half years. Madden arrested approximately 100 suspects for possession and sale of narcotics and had over 150 hours of training in narcotics identification and trafficking.
Madden developed many contacts with drug users, narcotics experts in law enforcement, and confidential informants. In participating in the execution of numerous search warrants in Kern County, Madden seized a large quantity of different controlled substances as well as a number of arrests and convictions. Within the past 10 days, Madden had spoken with a confidential informant (CI), regarding the sale of methamphetamine. CI has personally known for about a year one “Paco,” an Hispanic male 5’10” tall, weighing 200 pounds, and with grey/black hair. The CI does not know Paco’s exact residence, but knows that Paco lives in Bakersfield in the area of Monterey and Niles Streets.
The CI had purchased methamphetamine from Paco in the past, has observed Paco in possession of methamphetamine for sale, and seen Paco sell methamphetamine. The CI said he or she can purchase methamphetamine from Paco. The CI observed Paco in a red Chevrolet Suburban with a Mexican license plate ending in the numbers 06 and a white Mazda MX3 with a California license plate ending in the numbers 82.
Madden provided complete license plate numbers for both vehicles in his affidavit.
The CI said he or she had ordered methamphetamine by cellular phone from Paco. Paco would deliver the methamphetamine in the Suburban or the Mazda at a prearranged location in Bakersfield. The CI provided Madden with the time and location of the meeting place. Madden and other members of KNET responded to the location. At the scheduled time, Madden watched a Suburban with the 06 license plate arrive. The only occupant in the car was a Hispanic male in his 40’s, 5’10” tall with black and grey hair.
Sergeant Duchene saw Paco exit his vehicle and meet the CI. The two disappeared from Duchene’s view. Paco entered the Suburban and left the area. Madden and other members of KNET conducted close and constant surveillance on the Suburban as Paco drove directly to 1115 Brown Street. Madden watched Paco as he when into and out of Apartment A.
The CI later told Madden that the person observed by Duchene was Paco.
Within the same 10 days, Deputy Harbour and Officer Grady met with the CI at a prearranged location. Harbour supplied the CI with city funds to purchase methamphetamine from Paco. The CI contacted Paco by cellular phone and “ordered an amount of methamphetamine” which was to be delivered to a prearranged location in Bakersfield. As the CI made the phone call, Madden was watching Paco exit Apartment A and enter the Suburban parked next to the apartment. Paco drove to the prearranged location and met the CI.
Harbour and Grady saw Paco arrive in the Suburban at the prearranged location. Paco met with the CI for a short time and left in the Suburban. Harbour and Grady met the CI at another prearranged location in Bakersfield. The CI handed them a quantity of suspected methamphetamine that the CI said was purchased from Paco with city funds. The suspected methamphetamine was similar to methamphetamine Harbour had seen in past narcotics investigations.
Madden’s affidavit stated the methamphetamine obtained by the CI looked like methamphetamine seized in prior investigations and that the methamphetamine in the prior investigations had tested positive as methamphetamine.
Within the same 10 days, Madden conducted surveillance of 1115 Brown Street and saw the same red Suburban on five different occasions parked in front of the apartment complex. Grady independently conducted surveillance of 1115 Brown Street within the same 10 days and saw the red Suburban parked in the street in front of the apartment complex on two occasions. Grady also saw the Mazda parked behind the Suburban. Grady saw Paco outside Apartment A working on a cooler.
Madden conducted a record check on Apartment A at 1115 Brown Street and found no information. A record check of the Mazda indicated it was registered to Francisco Javier Lopez with an address on Monterey Street. The CI was not being paid money, but was receiving leniency in a pending criminal matter. Because of the CI’s past experience with narcotics, Madden stated he knows the CI is familiar with methamphetamine and other narcotics, their appearance, method of packaging, and use.
Based on Madden’s training and experience, he knows it is common for people involved in narcotics trafficking to conceal items, which would show their involvement, including their vehicles, residences, and outbuildings. Madden believed controlled substances would be found at Apartment A of 1115 Brown Street, the Suburban, and the Mazda. Madden further stated that he is aware that narcotics dealers often rely heavily on phones to arrange supply of narcotics and to receive orders for them.
On May 26, 2006, KNET officers served a search warrant at Apartment A on 1115 Brown Street in Bakersfield. Lopez and his wife were present during the search. Lopez had a key that worked the lock to the apartment. Investigators found stashes of methamphetamine during the search weighing over 446 grams. They also found an unloaded but operable .22 caliber Winchester rifle. Investigators found two sets of scales, packaging materials, rubber bands, and a spoon.
SUFFICIENCY OF WARRANT
Appellant contends there was no evidence in the warrant concerning the location of any evidence exchange or that criminal activity was afoot. He further argues there was “no indicia of the reliability of the informant.” Appellant also argues that investigators never tested the alleged methamphetamine purchased by the CI from appellant.
The sufficiency of a warrant must be upheld if it meets the totality-of-the-circumstances test of Illinois v. Gates (1983) 462 U.S. 213 (Gates). Under the Gates analysis, “‘[t]he task of the issuing magistrate is simply to make a practical, common-sense 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. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... conclud[ing]’ that probable cause existed.’” (Gates, supra, 462 U.S. at pp. 238-239.) Probable cause, as the term implies, deals only with “ ‘ the probability, and not a prima facie showing, of criminal activity. . . . [Citations.]’ ” (Id. at p. 235.)
Appellate courts must give great deference to the magistrate’s finding of probable cause. The warrant is properly set aside only if the affidavit fails as a matter of law to set forth sufficient competent evidence supporting the magistrate’s finding of probable cause. A finding of probable cause only requires a fair probability contraband or evidence of criminal activity will be found. (People v. Glenos (1992) 7 Cal.App.4th 1201, 1206-1207.)
The trial court’s findings of fact, express or implied, in a section 1538.5 hearing are upheld if supported by substantial evidence. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410; People v. Gallant (1990) 225 Cal.App.3d 200, 206.) The trial court is vested with the authority during a suppression hearing to weigh the evidence and to draw factual inferences. It is the responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (People v. Lawler (1973) 9 Cal.3d 156, 160.)
Courts must consider variables such as whether there was a chance encounter or a regenerating conspiracy, whether the criminal is entrenched or nomadic, whether the thing seized is enduring or perishable, and the permanency of the operational base. (People v. Wilson (1986) 182 Cal.App.3d 742, 754-755; see also People v. Medina (1985) 165 Cal.App.3d 11, 20-21.) The opinions of an experienced officer may be considered by the trial court in making a probable cause determination. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1555.)
In assessing the affidavit’s facts, the possibility of an innocent explanation does not deprive the trial court to entertain a reasonable suspicion. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784 (Tuadles); People v. Kershaw (1983) 147 Cal.App.3d 750, 759-760.) Doubtful or marginal cases should be resolved in favor of upholding the warrant. (Tuadles, supra, 7 Cal.App.4th at p. 1784.) A culprit’s home is a logical place to search for their records, supplies, and profits. (People v. Pressey (2002) 102 Cal.App.4th 1178, 1183.) Whether the seller is an owner or an occupier of the residence, the right of access leads to a reasonable inference that the seller stores controlled substances at the residence. (People v. Garcia (2003) 111 Cal.App.4th 715, 721.)
The surveillance activities of investigators, which occurred on multiple occasions, established that appellant was connected to Apartment A at 1115 Brown Street. Madden stated in the affidavit that drug dealers keep narcotics and related items in their residences and vehicles. A record check of the Mazda indicated it was registered to Francisco Javier Lopez with an address on Monterey Street. Appellant appears to have been using, or at least referring, to more than one address and was using at least two vehicles. This was evidence from which the trial court could infer that appellant was attempting to evade detection from investigators.
Madden observed the CI meeting with appellant. When appellant left in the red Suburban, investigators followed him to Apartment A at 1115 Brown Street and established that appellant used this residence. On another occasion, Harbour and Grady met with the CI at a prearranged location. Harbour supplied the CI with city funds to purchase methamphetamine from appellant. The CI contacted appellant by cellular phone and “ordered an amount of methamphetamine,” which was to be delivered to a prearranged location in Bakersfield. As the CI made the phone call, Madden was watching appellant exit Apartment A and enter the Suburban parked next to the apartment. Appellant drove to the prearranged location and met the CI.
Harbour and Grady saw appellant arrive in the Suburban at the prearranged location. Appellant met with the CI for a short time and left in the Suburban. Harbour and Grady met the CI at another prearranged location in Bakersfield. The CI handed them a quantity of suspected methamphetamine that the CI said was purchased from appellant with city funds. The suspected methamphetamine was similar to methamphetamine Harbour had seen in past narcotics investigations.
Given the totality of these details, we agree with respondent that investigators did not have to test the suspected methamphetamine to establish beyond all doubt that it was a controlled substance prior to securing the search warrant. The standard of proof for the magistrate to issue the search warrant was not beyond a reasonable doubt. Probable cause requires proof of only a substantial chance. (Gates, supra, 462 U.S. at p. 243, fn. 13; Tuadles, supra, 7 Cal.App.4th at p. 1783.)
We further find that the surveillance of the CI with appellant which established appellant’s residence, coupled with the appellant’s sale of presumed methamphetamine to the CI, established the reliability of the CI for the purposes of issuing the search warrant. Although the affidavit did not establish the past reliability of the CI, it demonstrated his or her reliability through the course of the investigation. Also, the CI had a past track record observing appellant possessing and selling narcotics.
Under the totality of the circumstances, we find the trial court did not err in denying the motion to quash the search warrant and finding probable cause for its issuance.
Franks v. Delaware (1978) 438 U.S. 154 (Franks).
Appellant further contends the affidavit contained a false statement, made intentionally or recklessly, which vitiates probable cause.
At the hearing on the motion to quash the search warrant, defense counsel noted that the affidavit stated the substance obtained from the CI was tested by the crime laboratory. In the discovery process, however, the prosecution informed defense counsel that the substance was never tested. The court read the statement from the affidavit:
“‘[T]he CI handed Deputy Harbour a quantity of suspected methamphetamine which the CI said he/she purchased from “Paco” with the City funds Deputy Harbour provided to him/her. The suspected methamphetamine was similar to the methamphetamine Deputy Harbour has seen in the past from narcotics seized in investigations which were later analyzed by the Kern County District Attorney’s lab, and the results determined the substance contained methamphetamine.’”
The trial court stated that Officer Madden did not take English from the same mean teacher the court had in school. The court noted the statement was ambiguous. The court found that when the statement mentions substances being analyzed, Madden is talking about prior cases, not the current case. The court asked Madden to whisper to the prosecutor if this was in fact the correct interpretation of the sentence. The court stated on the record that Madden was nodding affirmatively. The court found that it was not this particular quantity of methamphetamine seized from the CI which had been analyzed, but contraband seized on prior occasions that was later confirmed to be methamphetamine.
The prosecutor offered to have Madden testify. Madden was called as a witness and testified that he prepared the search warrant affidavit. Madden confirmed that he did not have the substance seized from the CI tested to confirm whether it was methamphetamine. Madden handed the affidavit to the magistrate to read without adding more information through conversation.
A defendant may challenge the veracity of statements contained in an affidavit in support of a search warrant. When presented with such a challenge, courts must conduct an evidentiary hearing if the defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made with reckless disregard for the truth, and (2) the affidavit’s remaining contents, after the false statements are removed, are insufficient to justify a finding of probable cause. If statements at the evidentiary hearing are proved by a preponderance of the evidence to be false or reckless, they must be excised and, if the remaining contents of the affidavit are insufficient, the warrant is voided and the evidence seized pursuant to it is suppressed. (Franks, supra, 438 U.S. at pp. 155-156; People v. Bradford (15 Cal.4th 1229, 1297.)
Appellant has failed to make any showing that Madden’s affidavit deliberately stated a falsehood or that it omitted any material fact. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1581.) The challenged language in Madden’s affidavit could be read to say that the methamphetamine obtained by the CI in this case was analyzed and found to be methamphetamine. Although not artfully written, the more natural reading of the affidavit is that the substance obtained by the CI looked to Madden like previous contraband from earlier cases Madden worked on in which that contraband was tested and found to be methamphetamine. In other words, the substance obtained by the CI in this case looked like methamphetamine that Madden seized in earlier cases. A warrant affidavit should not be read hypertechnically rather than in a common sense manner. (Gates, supra, 462 U.S. at p. 236; United States v. Ventresca (1965) 380 U.S. 102, 109; People v. Mesa (1975) 14 Cal.3d 466, 469; People v. Smith (1980) 108 Cal.App.3d 843, 846.)
There were no intentional or reckless misstatements in the affidavit. During the hearing, the trial court established that Madden had not tested the substance obtained by the CI in this case and did not mean to imply so in his affidavit. Defense counsel had an opportunity to question Madden concerning the alleged misstatement in the affidavit and instead asked Madden questions about other officers involved in the investigation. The court made an inquiry as to whether Madden added more detail orally to the magistrate when he sought the search warrant. There was no questioning challenging the veracity of the affidavit pursuant to Franks.
Appellant made a motion based on Franks in a written motion filed before the hearing.
We agree with respondent that there is no evidence that the challenged statement in Madden’s affidavit was untrue or made with reckless disregard to the truth. There was no showing by appellant that the magistrate would have been misled by the statement, especially under the common sense and most natural reading of the statement. We find the statement in the affidavit would have been understood by the magistrate to mean that Madden did not test the substance obtained by the CI, but that the substance so obtained looked like what Madden knew to be methamphetamine from prior investigations. The trial court did not err in finding no basis to traverse the warrant pursuant to Franks.
In light of our ruling, we do not reach the issue of whether the officer could rely on the issuance of the warrant pursuant to good faith test of United States v. Leon (1984) 468 U.S. 897.
DISPOSITION
The judgment is affirmed.