Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR07-81649
RUVOLO, P. J.
I.
INTRODUCTION
Fernando Barriga Padilla (appellant) appeals his conviction based on a guilty plea to one felony count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one count of child endangerment (Pen. Code, § 273a, subd. (a)), and two special drug weight enhancements (Health & Saf. Code, §§ 11370.4, subd. (b)(1), Pen. Code, § 1203.073, subd. (b)(2)). The trial court denied appellant’s Penal Code section 1538.5 motion to quash the search warrant for his home, and to suppress the evidence against him. Appellant renews his contention that the search warrant for his home lacked the necessary probable cause for issuance. We affirm.
II.
FACTS AND PROCEDURAL HISTORY
Appellant was pulled over on December 12, 2007, after an officer reported that he ran a stop sign while driving his van. Special agent Darren Brewster of the Mendocino Major Crimes Task Force witnessed the traffic violation, and radioed a patrol car to make the stop. Appellant was asked to get out of the car after failing to produce a valid driver’s license. When questioned, appellant admitted having methamphetamine. The officer found nearly a full pound of methamphetamine on appellant’s person, and $3,580 in cash in the van. This information was relayed to special agent Pete Hoyle of the Mendocino Major Crimes Task Force. Before obtaining a warrant, Agent Hoyle went to appellant’s apartment where he saw the lights and television on inside. After no response to his knocks, he entered the apartment and conducted a protective sweep to make sure it was not occupied.
Agent Hoyle requested a warrant to search appellant’s apartment for methamphetamine, drug dealing paraphernalia, and other related evidence. In support of the affidavit, affiant listed his extensive experience as a police officer, specifically in narcotics law enforcement. Agent Hoyle averred that appellant was found with a commercial amount of methamphetamine on his person, and based on affiant’s training and experience, along with the experience of other narcotics officers, it was his belief that “a search of the aforementioned items and locations will result in the seizure of the items listed in the attached search warrant....” The warrant issued and when it was served, Agent Hoyle found 975.2 grams net weight of methamphetamine, 2784 grams gross weight of marijuana, $20,651 in cash, scales, and packaging material in appellant’s apartment.
Before entering a plea, appellant filed a motion to suppress all evidence against him, and a motion quash the search warrant for his apartment based on Penal Code section 1538.5. The court denied both motions. In denying the motion to quash the search warrant, the court concluded that the discovery of almost a pound of methamphetamine on appellant’s person during a traffic stop, and over $3,000 in cash in appellant’s, when coupled with the opinion of Agent Hoyle, was enough to justify a search warrant for appellant’s apartment. Appellant entered into a plea bargain in exchange for three counts being dismissed by the prosecution, and was sentence to seven years four months in state prison. This appeal promptly followed.
III.
DISCUSSION
Appellant contends there was no probable cause for issuance of the warrant obtained to search his apartment, and as a consequence, the evidence found during that search should be suppressed. Specifically, appellant requests that we find as a rule that the assertion by an experienced police officer that drug dealers often have evidence of their dealing at home does not constitute probable cause.
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence....’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924 quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) In determining whether probable cause exists,“[t]he affidavit must provide a substantial basis from which a magistrate can reasonably conclude there is a fair probability that the place to be searched contains contraband or evidence of a crime. [Citation.]” (People v. Hernandez (1994) 30 Cal.App.4th 919, 923.) In this case, it is important to note that “[a] magistrate may reasonably rely on the special experience and expertise of the affiant officer in considering whether probable cause exists. [Citation.]” (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103.) The magistrate’s decision receives deferential review and the warrant can only be upset if, as a matter of law, there was insufficient evidence to support the magistrate’s finding of probable cause. (People v. Hobbs (1994) 7 Cal.4th 948, 975; Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.)
Both appellant and respondent note that there are numerous opinions from this court holding that probable cause can exist based on an experienced officer’s opinion that a known drug dealer’s home will contain related evidence. As noted by this division in People v. Pressey (2002) 102 Cal.App.4th 1178, 1184 (Pressey), California courts have repeatedly held that evidence of drug trafficking, along with the opinion of an experienced narcotics officer that the suspect’s home will contain more evidence of trafficking, can be sufficient probable cause to issue a search warrant (recognizing People v. Cleland (1990) 225 Cal.App.3d 28; People v. Koch (1989) 209 Cal.App.3d 770, disapproved on another point in People v. Weiss (1999) 20 Cal.4th 1073, 1083; People v. Aho (1985) 166 Cal.App.3d 984; People v. Johnson (1971) 21 Cal.App.3d 235).
But appellant urges us not to follow these California precedents, and instead follow contrary authority adopted by the Washington State Supreme Court in State v. Thien (Wash. 1999) 977 P.2d 582. That case held that evidence of drug dealing and the credible opinion of an experience narcotics officer, without specific evidence relating to the residence, are insufficient to issue a residential search warrant. (Id. at p. 589.) We decline the invitation to depart from California decisions and follow Washington’s position, inasmuch as we agree with our state’s decisions on this issue.
Appellant argues further that allowing an inference that a drug dealer has evidence of trafficking at his or her residence based on the statement of an experienced officer violates the Fourth Amendment’s requirement of probable cause for a search warrant for two reasons. (U.S. Const., 4th Amend.) First, appellant claims that such an assertion is conclusory, and therefore not sufficient for probable cause. Second, appellant argues that the California rule allows for an unconstitutionally broad generalized exception to the requirement of probable cause for a warrant.
As the United States Supreme Court noted, “[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... there is 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 (Gates).) The approach adopted in Gates looks at the totality of the circumstances in assessing whether there is probable cause to issue a warrant. (Ibid.) Appellant contends that when a warrant is based merely on the affiant’s “knowledge or experience” about the habits of criminals, the totality of the circumstances test set forth in Gates is not satisfied.
Appellant misreads the reach of Gates. Gates refers to insufficient showings of probable cause where an affidavit is completely devoid of facts, and is based solely on a bare assertion that contraband would be found. (Gates, supra, 462 U.S. at p. 237; Nathanson v. United States (1933) 290 U.S. 41; see also Aguilar v. Texas (1964) 378 U.S. 108.) In contrast, the affidavit concerning appellant’s apartment contained more than a mere assertion of knowledge and experience. It referenced specific facts including substantial and credible evidence that appellant was a drug dealer, evidenced by an officer’s discovery during a traffic stop that appellant possessed a commercial amount of drugs along with more than $3,000 in cash. The affiant’s stated knowledge and experience of the habits of drug dealers, along with the assertions of other supporting facts in the affidavit, clearly go beyond the type of bare conclusion disapproved of in Gates.
Appellant next contends that the United States Supreme Court has implicitly disapproved of our state’s line of cases cited above, because they create an unconstitutional blanket exception to the Fourth Amendment’s probable cause requirement. In support of this argument, appellant tries to extrapolate from the decision in Richards v. Wisconsin (1997) 520 U.S. 385, 387 (Richards), a “knock and notice” case. Richards struck down the blanket exception shielding police decisions from judicial review, which per se allowed officers to ignore the knock and announce requirement when serving a warrant in a felony drug investigation. The Richards court noted that “while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence.” (Id. at p. 393.) The court concluded that even though drug investigations frequently pose a special risk, case-specific facts may not justify a waiver of the knocking requirement. As a result, a per se exception is not warranted and decisions not to knock should be reviewable. (Ibid.)
Appellant contends that the Supreme Court’s disapproval of a blanket exception to warrant requirements similarly bars the inference here that drug dealers may have evidence of trafficking in their homes. We fail to see the application of the reasoning in Richards, supra, 520 U.S. 385 to searches of suspected drug dealers’ homes as in the instant case. A magistrate may frequently find probable cause to issue a search warrant for a drug trafficker’s home, based on facts indicating drug dealing and a narcotics officer’s opinion about habits of dealers. This is not a per se rule as in Richards, but a fact-specific finding made on a case-by-case basis. In any given case, facts may indicate that it is unlikely evidence may be in the home, despite an officer’s opinion that such evidence frequently exists. In such a case, probable cause would be insufficient and a magistrate should deny issuance of the warrant. But, here there was sufficient evidence independent of the officer’s opinion to justify the probable cause finding.
Because we affirm based on the presence of facts sufficient to sustain a finding of probable cause, we need not rule on respondent’s alternative contention that we should affirm based on the officer’s good faith reliance on the warrant.
IV.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J. RIVERA, J.