Opinion
E042672
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY FRANCES RICHARDS, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Pursuant to a plea bargain, defendant pled guilty to possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) As agreed in the plea bargain, the trial court sentenced defendant to state prison for a term of two years. Defendant contends the trial court erred by denying his motion to suppress evidence, which was obtained during a search of his home pursuant to a search warrant. The search warrant affidavit relied on information obtained during a prior search of defendants mail. Defendant contends that the trial court erroneously denied his suppression motion because the search warrant affidavit did not contain sufficient facts to determine whether the prior search of his mail was an illegal search thereby causing the search of his residence to be an illegal search as well. We affirm the judgment.
FACTS
1.
PROBABLE CAUSE STATEMENT
The following is the probable cause statement included in the search warrant for defendants house, as sworn by San Bernardino County Sheriffs Detective Cook: "Within the past ten (10) days I was contacted by Special Agent Steve Ice. I am familiar with SA Ice as a United States Postal Inspector. SA Ice told me within the last 10 days, a package was intercepted by U.S. Customs agents, which contained 200 grams of red phosphorous.
"SA Ice told me U.S. Customs had resealed the package and then given him custody for follow-up investigation. SA Ice told me he is still in possession of the package at this time. The package is addressed to [defendant] at [an address in Landers, CA]. While red phosphorous by itself is not illegal to possess, it is a precursor item in the manufacturing process of methamphetamine. This amount of red phosphorous is nearly one half of a pound.
"A systems check of [defendant] found him to be on active CDC Parole for the sales of methamphetamine (HS11378). I notified parole, who in turn advised me that [defendants] record of address is in fact [the same address noted above in Landers, CA]. [Defendant] also has a history of manufacturing methamphetamine (HS11379.6). This location is in a remote and rural area making the chemical odors from a clandestine methamphetamine lab difficult to detect by any neighbors.
"SA Ice told me he is also familiar with certain precursors and chemicals used in the manufacturing process and believes that this amount would be used solely for the purpose to manufacture methamphetamine.
"It is my intention to serve this warrant, if authorized, only upon successful delivery of the package to the residence. It is our intention to have SA Ice, as a postal employee, deliver the package under Sheriffs Detectives surveillance[.] The package will remain in the control of SA Ice until such delivery is made. Upon delivery of the package, Sheriffs Narcotic Detectives [sic] would then serve the search warrant a short time later to ensure the items in the package do not leave the residence.
"If the delivery is not made for any reason or the package is not accepted at the residence, then this warrant would not be served or used in any way."
2.
EXECUTION OF THE SEARCH WARRANT
When Detective Cook arrived at defendants home to execute the search warrant two women were leaving the residence. Detective Cook asked if defendant was inside the house, and the women informed him that defendant "was probably in his bedroom." The women escorted the detective into the home. The detective found defendant in a chair holding a glass methamphetamine pipe.
At the hearing on defendants motion to withdraw his guilty plea, defendant claimed the home police searched pursuant to the warrant was not his permanent home nor was it his registered parole address; however, defendants girlfriend lived at the house that was searched, defendant stated that he "stayed there" and "had mail sent there," and the address was listed as defendants parole address at the time Detective Cook applied for the search warrant. Additionally, when Detective Cook asked the women exiting the home if defendant was inside, they responded that defendant was "in his bedroom." Accordingly, although defendant claimed the residence that was the subject of the search was not his permanent address, we infer that it was his home.
Detective Cook asked defendant "if he had anything else on him, and [defendant] shook his head up and down in a yes motion and then reached into his left front hand pocket," and pulled out a container. Inside the container were approximately 10 clear plastic ziplock baggies, approximately six of which contained a crystal-like substance that the detective believed was methamphetamine.
Detective Cook discovered two 100-gram containers of red phosphorous inside defendants residence. Detective Cook informed defendant of his Miranda rights. Defendant waived his rights, and told the detective "that he had purchased [the red phosphorous] approximately three weeks [prior] from a company out of London. He had exchanged U.S. currency into English currency and actually mailed that cash to . . . [a] chemical company in London."
Miranda v. Arizona (1966) 384 U.S. 436.
3.
DEFENDANTS PLEAS AND MOTIONS
On July 29, 2005, defendant pled guilty to possessing a controlled substance for sale. (Health & Saf. Code, § 11378.) Defendant admitted two prior convictions that resulted in prison terms (Pen. Code, § 667.5, subd. (b)) and six prior convictions for certain Health and Safety Code violations (Health & Saf. Code, § 11370.2, subd. (c)). The court granted defendant three years supervised probation.
On December 13, 2005, the court indicated that it was planning to grant defendants motion to withdraw his guilty plea due to ineffective assistance of counsel, based upon defendants arguments that his attorney failed to recognize that the search warrant was potentially invalid. The district attorney stipulated that he "would allow [defendant] to withdraw his plea." An information was filed and the case was scheduled for pretrial.
On February 1, 2006, the court held a hearing on defendants motion to suppress evidence recovered during the search of the house. Three issues were presented at the hearing: (1) the failure of the judge to sign the search warrant; (2) the failure of the affiant to sign the bottom of the affidavit; and (3) deficient facts in the search warrant to support a finding of probable cause.
In arguing that the affidavit did not have sufficient facts to support a finding of probable cause, defendant argued that the affidavit failed to include (1) how the chemical in the package seized by customs agents was determined to be red phosphorus; and (2) where the package was seized, "because customs agents dont just operate right at the border." The court denied defendants motion to suppress, because it concluded the affidavit supported a finding of probable cause.
On December 13, 2006, the court denied defendants motion to renew his motion to suppress evidence. On January 9, 2007, defendant pled guilty to possessing a controlled substance for sale. (Health & Saf. Code, § 11378.) The People made a motion to strike defendants various prior convictions listed ante, which the court granted. Pursuant to the plea bargain, the court sentenced defendant to state prison for a term of two years.
DISCUSSION
Defendant contends that the trial court erroneously denied his suppression motion because the warrant affidavit did not contain sufficient facts to determine whether the opening of his mail was an illegal search poisoning the resulting search of his residence. (See Wong Sun v. United States (1963) 371 U.S. 471, 484.) We disagree because defendant had no expectation of privacy given his parole search condition.
To the extent it could be argued the search of defendants residence should not have been conducted because the probable cause statement in the warrant was deficient, we note that when facts about a prior allegedly illegal search are omitted from a warrant affidavit, a defendant may argue the evidence recovered during the second search must be suppressed based upon the fruit of the poisonous tree doctrine, but may not argue that the evidence must be suppressed due to a deficient probable cause statement. (People v. Cook (1978) 22 Cal.3d 67, 93-94.)
In order to reach the issue of whether the evidence discovered in the search of defendants home was the fruit of a prior illegal search, defendant first has to establish an expectation of privacy. (See People v. Jenkins (2000) 22 Cal.4th 900, 972.) But a parolee has no expectation of privacy because he is subject to warrantless searches without even a particularized suspicion of criminal activity. (People v. Sanders (2003) 31 Cal.4th 318, 333; see also Cal. Code Regs., tit. 15, § 2511, subd. (b)(4).)
In this case, the officer executing the warrant was aware of defendants parole status as stated in the probable cause statement. Therefore, defendant had no expectation of privacy, and we uphold the trial courts denial of the suppression motion without addressing the legality of the opening of defendants mail. (People v. Reyes (1998) 19 Cal.4th 743, 752-754.)
DISPOSITION
The judgment is affirmed.
We concur:
Richli, J.
King, J.