Opinion
B188478
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER WILLINGHAM, Defendant and Appellant.
Sylvester Willingham, in pro. per.; and David M. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Sylvester Willingham appeals from the judgment entered following his no contest plea to possession of marijuana for sale. (Health & Saf. Code, § 11359.) Imposition of sentence was suspended; and Willingham was granted three years of formal probation, including a condition he serve 120 days in county jail.
FACTUAL AND PROCEDURAL BACKGROUND
Willingham filed a motion to suppress evidence seized pursuant to a warrant authorizing search of his apartment (Pen. Code, § 1538.5). The motion was heard in conjunction with the preliminary hearing.
At the outset of the hearing defense counsel told the magistrate that, although the search warrant was not being challenged by a motion to quash, the search was nevertheless unlawful because it was the fruit of Willinghams illegal detention outside his apartment immediately prior to the execution of the warrant and because Willingham had not been shown a copy of the search warrant. The magistrate rejected those arguments, explaining the apartment search was based on a warrant existing independently of Willinghams detention and officers are not required to show residents the warrant before conducting the search. (People v. Calabrese (2002) 101 Cal.App.4th 79, 85 [notwithstanding Fed. Rules Crim.Proc., rule 41(d), neither federal Constitution nor California law requires officers to display warrant or provide copy to occupant of premises to be searched].)
Evidence at the hearing established that Officer Patrick Flaherty was one of several police officers who searched the apartment pursuant to a search warrant. Inside a bedroom officers found numerous plastic baggies containing 704.48 grams of marijuana and a picture identification of Willingham with the apartments address. Officers also recovered photographs of Willingham and mail with his name and the apartments address. Based on the amount and packaging of the seized marijuana, Flaherty was of the opinion it was possessed for the purpose of sale.
Willingham was outside the apartment at the time of the search. Cash in the amount of $142.00 was found on his person.
The People objected on relevancy grounds to defense counsels attempts to cross-examine Officer Flaherty on whether Willingham was detained outside his apartment and whether residents were typically provided with written notice of a warrant search. The magistrate sustained the objections. Before presenting an affirmative defense, Willinghams trial counsel made an offer of proof that a police officer would testify Willingham was detained before the search had commenced and Willinghams mother and sister would testify they were never shown the search warrant. The magistrate excluded the proposed testimony as not relevant, and trial counsel presented no affirmative defense.
At the conclusion of the hearing the magistrate denied the suppression motion and found the preliminary hearing evidence was sufficient to hold Willingham to answer.
Willingham thereafter moved to set aside the information, arguing the preliminary hearing evidence was insufficient to support the charge of possessing marijuana for sale and the suppression motion should have been granted. The trial court denied the motion, and Willingham entered his no contest plea. Willingham filed a notice of appeal challenging the denial of his suppression motion. We appointed counsel to represent him on appeal.
DISCUSSION
After examination of the record appointed appellate counsel filed an "Opening Brief" in which no issues were raised. On October 27, 2006 we advised Willingham he had 30 days within which to personally submit any contentions or issues he wished us to consider.
On November 21, 2006 we received a supplemental brief from Willinghams trial counsel, which we accepted for filing as Willinghams supplemental brief. The supplemental brief repeats the primary argument made to the magistrate: Although the search warrant itself was valid, because Willinghams purportedly unlawful detention was part of the search warrant proceedings, the contraband discovered during the search authorized by the warrant must be suppressed as the fruit of an unlawful seizure. Willinghams argument lacks any merit and was properly rejected by the magistrate. Law enforcement officers executing a search warrant at a private residence have the right to detain the occupants during the search. (Michigan v. Summers (1981) 452 U.S. 692, 705 [101 S.Ct. 2587, 69 L.Ed.2d 340] ["a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted"]; People v. Glaser (1995) 11 Cal.4th 354, 370.)
We have examined the entire record, as well as Willinghams supplemental brief, and are satisfied Willinghams attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (Nov. 27, 2006, S133114) ___ Cal.4th ___; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
We concur:
WOODS, J.
ZELON, J.