Opinion
C082946
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ROBERT MOON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P15CRF0393)
After observing defendant Steven Robert Moon engage in a suspected drug transaction in his car at a shopping center, officers conducted a warrantless search of his person and car and found methamphetamine. During a separate search of defendant's residence pursuant to a warrant based on the earlier observations and seizure at the shopping center, officers recovered methamphetamine, a digital scale and a shotgun. The magistrate and trial court denied defendant's motions to suppress the evidence and quash the warrant.
A jury convicted defendant of possession of methamphetamine for sale, possession of a controlled substance, being a felon in possession of a firearm, and misdemeanor driving on a suspended license. The trial court sentenced him to nine years four months in state prison.
Defendant now contends (1) officers did not have probable cause to believe that defendant's car contained evidence of criminal activity or contraband, and (2) the search warrant should have been quashed because it was based entirely on the officer's observations at the shopping center and the methamphetamine illegally seized from his car.
Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
In September 2015, Folsom Police Department Detective Jake Verhalen noticed a man in the parking lot of a shopping center standing outside a red Kia SUV. The man was later identified as Patrick Carlson. Carlson seemed "pretty nervous" and was looking around like he was "checking the area to ensure no one was watching him . . . ." Detective Verhalen also saw a man, later identified as defendant, sitting in the driver's seat of the Kia.
Carlson walked between the parking stalls on either side of the car as if he was looking for someone. A short time later, a bicyclist rode up to the passenger side of the car. Detective Verhalen saw defendant get out of the vehicle. Defendant stood near the open driver's side door and reached through the inside of the vehicle at the same time as the person on the bicycle reached into the car through the open passenger side window. Defendant then got back into the car and closed the driver's door. The three men appeared to quickly talk, and then Carlson as well as the bicyclist looked at the passenger seat and pointed at something. The bicyclist reached his right hand through the passenger window and removed something from the car. Detective Verhalen observed that the object was white, and was about an inch wide and two inches long. The bicyclist put the white item in his back pocket, talked for a few more seconds, and then rode away.
Detective Verhalen, a 17-year officer who had participated in no less than 200 drug-related investigations and had at least 250 hours of specialized training in the possession and distribution of narcotics, believed he had observed a hand-to-hand narcotics transaction. Detective Verhalen testified that Sergeant John Lewis, who was with him at the time and had been a police officer for approximately 23 years, also believed they had witnessed a drug sale.
Detective Verhalen saw Carlson get in the passenger seat and saw defendant drive away. Detective Verhalen and Sergeant Lewis followed the red Kia and initiated a traffic stop. Defendant told Detective Verhalen his driver's license was suspended. When asked about the exchange the officers had observed at the shopping center, defendant and Carlson remained "fairly quiet." Defendant and Carlson were handcuffed, searched for weapons, and placed in the back of a patrol vehicle.
Based on his training and experience as well as on his first-hand observations in the parking lot, Detective Verhalen believed there was probable cause to search the vehicle for narcotics and other drug paraphernalia. In his experience, drug dealers often conduct narcotics transactions from their cars and carry other indicia of drug sales or paraphernalia in their vehicles.
Detective Verhalen searched the car and discovered a clear plastic sandwich bag in between the passenger seat and center console that appeared to contain crystal methamphetamine. The bag was easily accessible by both the driver and the passenger. Tests later confirmed that the bag contained 12.7 grams of methamphetamine. Officers also found $117 on defendant and a cell phone on Carlson.
Given the amount of the methamphetamine found in the car, Detective Verhalen opined that the narcotics were possessed for the purpose of sale. He testified that a typical dosage unit for methamphetamine was one-tenth of one gram. Thus, the 12.7 grams found in defendant's car would yield approximately 127 individual doses. Detective Verhalen testified that the typical user had less than two grams.
During the preliminary hearing, Detective Verhalen testified that when a driver is arrested or cited for driving on a suspended license, it is Folsom Police Department policy to conduct an inventory search, tow the vehicle and hold it for 30 days. The record indicates an inventory search was conducted on the vehicle.
Detective Verhalen obtained a warrant to search defendant's home based on Detective Verhalen's observations at the shopping center and the evidence confiscated from defendant's car. Officers executed the warrant when defendant and his wife were home. When asked whether there were any drugs or weapons in the house, defendant said that his wife kept a rifle under their bed for protection. Officers found a shotgun and ammunition under the bed in the master bedroom. In the garage, officers found a Pepsi can with a hidden compartment containing 24.5 grams of methamphetamine inside. They also found a digital scale with methamphetamine residue. Based on the quantity of methamphetamine, which Detective Verhalen said was equivalent to 245 individual doses, and the digital scale with methamphetamine residue, Detective Verhalen opined that the methamphetamine was possessed for sale.
Defendant moved, pursuant to Penal Code section 1538.5, to suppress the evidence and quash the search warrant. The magistrate denied the motion, finding that the officers had reasonable suspicion to believe they had observed defendant engage in a narcotics sale and that probable cause supported the vehicle search, and that probable cause supported the warrant.
Undesignated statutory references are to the Penal Code. --------
Defendant renewed his motion to suppress and to quash the warrant before the trial court. Neither party presented additional evidence. After noting that it could not reweigh the evidence when considering a renewed motion to suppress under section 1538.5 or section 995, the trial court found sufficient evidence to support the magistrate's ruling and denied the motion.
The jury convicted defendant of possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). The trial court found true allegations of a prior strike conviction, prior prison terms, and an on-bail enhancement. The trial court sentenced defendant to an aggregate term of nine years four months in state prison.
DISCUSSION
I
Defendant contends the officers did not have probable cause to believe that defendant's car contained evidence of criminal activity or contraband.
A criminal defendant may challenge the reasonableness of a search or seizure by moving to suppress evidence at a preliminary hearing. (People v. McDonald (2006) 137 Cal.App.4th 521, 528 (McDonald); § 1538.5, subd. (f)(1).) If the defendant is unsuccessful at the preliminary hearing, he must raise the search and seizure issue before the superior court by a motion to dismiss under section 995 or in a special hearing under section 1538.5 to preserve the issue for appellate review. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Romeo (2015) 240 Cal.App.4th 931, 941 (Romeo); McDonald, at p. 529; § 1538.5, subds. (i), (m).) Defendant followed the latter course here.
In a special hearing under section 1538.5, "the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing." (Romeo, supra, 240 Cal.App.4th at p. 941; see § 1538.5, subd. (i).) "The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing." (Romeo, at p. 941; see McDonald, supra, 137 Cal.App.4th at p. 529.)
On appeal from the trial court's ruling, we are also bound by the magistrate's factual findings so long as they are supported by substantial evidence. (Romeo, supra, 240 Cal.App.4th at p. 941; McDonald, supra, 137 Cal.App.4th at p. 529.) We directly review the magistrate's determination, drawing all presumptions in favor of the magistrate's factual determination and considering the record in the light most favorable to the ruling. (Romeo, at p. 941.) We then judge the legality of the search by measuring the facts, as found by the trier, against the constitutional standard of reasonableness. (Id. at pp. 941-942.) We exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable. (Ibid.)
A warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband is not unreasonable within the meaning of the Fourth Amendment. (United States v. Ross (1982) 456 U.S. 798, 806-807 [72 L.Ed.2d 572, 582]; Carroll v. United States (1925) 267 U.S. 132, 149 [69 L.Ed. 543, 549-550].) If officers have probable cause to search a vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search. (Ross, at p. 825 [addressing the scope of the automobile exception to the warrant requirement].)
"A police officer has probable cause to conduct a search when 'the facts available to [him] would "warrant a [person] of reasonable caution in the belief" ' that contraband or evidence of a crime is present." (Florida v. Harris (2013) 568 U.S. 237, 243 [185 L.Ed.2d 61, 67].) "The test for probable cause is not reducible to 'precise definition or quantification.' " (Ibid.) As the United States Supreme Court has recognized, " '[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the [probable-cause] decision.' " (Id. at pp. 243-244.) Instead, all that is required is "the kind of 'fair probability' on which 'reasonable and prudent [people,] not legal technicians, act.' " (Id. at p. 244; see People v. Hurtado (2002) 28 Cal.4th 1179, 1188-1189.)
Defendant characterizes the activity in the parking lot as totally innocent, but we disagree. Detective Verhalen observed a nervous man, Carlson, scanning the parking lot as if to see if anyone was watching him. The bicyclist arrived a few minutes later and Detective Verhalen saw defendant and the bicyclist reach into the car from opposite sides of the vehicle at the same time as if making an exchange. They pulled their hands out simultaneously. He then observed the bicyclist grab a small white item from the car and immediately put it into his pocket. A few seconds after the exchange was over, the parties dispersed. Detective Verhalen testified he and Sergeant Lewis both concluded they had witnessed a narcotics transaction. Through his specialized training and experience, Detective Verhalen knew that methamphetamine sellers often sell narcotics from their vehicles, and typically carry narcotics or paraphernalia inside the vehicle.
Under these circumstances, and given the officer's specialized narcotics training, a person of ordinary care and prudence could reasonably entertain a strong suspicion that defendant had sold the bicyclist drugs and that narcotics would be found in defendant's car. Detective Verhalen had probable cause to search the car for drugs. (People v. Kershaw (1983) 147 Cal.App.3d 750, 760 [" 'It is fundamental that an officer's observations can give rise to probable cause [for a search] . . . if that officer had sufficient training and experience from which to draw the conclusions necessary to create a reasonable belief in the presence of contraband' "], superseded by statute on another ground as stated in People v. Burch (1986) 188 Cal.App.3d 172, 176-177.)
Although defendant also claimed the officers illegally stopped his car, he did not provide us with reasoned argument and legal authority supporting his claim, and thus his challenge to the legality of the stop is forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.) Moreover, given our conclusion that his car was lawfully searched, we need not address the People's alternative argument that the methamphetamine would have inevitably been discovered during the inventory search of the vehicle.
II
Defendant next contends the search warrant should have been quashed because it was based entirely on the officer's observations at the shopping center and the methamphetamine illegally seized from his car.
When a defendant moves to quash a search warrant under section 1538.5, the trial court must determine whether, under the totality of the circumstances presented to the magistrate, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 ; People v. Camarella (1991) 54 Cal.3d 592, 600-601.) "[T]he traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a 'substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." (Gates, at p. 236.) "A magistrate's 'determination of probable cause[,]' " moreover, " 'should be paid great deference by reviewing courts.' " (Ibid.)
Applying this deferential standard of review here, there was a substantial basis for the magistrate's conclusion that a search of defendant's home would uncover evidence of illegal narcotics activity. The search warrant affidavit described the exchange between defendant and the bicyclist in the parking lot and the subsequent discovery of 12.7 grams of methamphetamine in defendant's car. Detective Verhalen attested that he knew, based on the training and experience documented in his affidavit, that a typical dosage unit of methamphetamine was one-tenth of one gram, and that the amount of methamphetamine found in the car was equivalent to 127 individual doses. In Detective Verhalen's opinion, defendant possessed the methamphetamine for sale.
From those facts, the magistrate could infer that defendant was not personally using the 12.7 grams of methamphetamine, but rather was engaged in selling the methamphetamine to others. The magistrate could also legitimately consider Detective Verhalen's opinion that defendant possessed the methamphetamine for sale in determining probable cause for the search. (People v. Kershaw, supra, 147 Cal.App.3d at p. 760 [the officer's opinion was a factor the magistrate could consider in determining probable cause for the search].)
"A number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items." (People v. Miller (1978) 85 Cal.App.3d 194, 204.) Here, the magistrate had a substantial basis for concluding probable cause existed to search defendant's home where evidence of methamphetamine sales would logically be found. The trial court did not err in denying defendant's motion to quash the warrant and suppress the contraband found in his home.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MURRAY, J.