Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC647531
McAdams, J.
Defendant John Batinich appeals from a judgment of conviction entered after he pleaded no contest to one count each of possessing methamphetamine for sale (Health & Saf. Code, § 11378 ), possessing cocaine for sale (§ 11351), possessing hydrocodone for sale (§ 11351), and possessing marijuana for sale (§ 11359). He also admitted enhancement allegations that he had suffered three prior drug convictions (§§ 11370.2, 11370.2, subd. (b), 11370, subds. (a), (c); Pen. Code, § 1203.07, subd. (a)(11)). The trial court sentenced defendant to two years in state prison pursuant to a negotiated plea.
All further statutory references are to the Health and Safety Code, unless otherwise stated.
The court sentenced defendant to the lower term of two years on count 2 (possession of cocaine for sale), with concurrent lower term sentences on the remaining counts. It also struck the sentences on the enhancements “to effectuate the negotiated disposition.”
On appeal, defendant contends the court erred in denying his motion to quash a search warrant and suppress the evidence obtained during the search of his home. We find no error and affirm.
Factual and Procedural History
On October 11, 2006, the San Jose Police Department (SJPD) requested a warrant authorizing the search of a single family residence at 6038 Dorn Court in San Jose. The affidavit in support of the warrant set forth information provided by two anonymous informants and observations made by San Jose police officers.
Contents of Affidavit in Support of Search Warrant
In the affidavit, San Jose Police Officer Mark Natwick, who was assigned to the Metro Unit of the Bureau of Field Operations, stated that he had over 10 years law enforcement experience with the SJPD plus five years experience as a reserve officer with the Santa Clara County Sheriff’s Department. He had received extensive training in narcotic law enforcement, had participated in over 300 controlled substance investigations, had arrested over 150 people for methamphetamine-related violations, and had testified as an expert concerning methamphetamine-related offenses. Natwick also set forth information regarding the cutting, packaging, sale, and use of methamphetamine and other drugs.
In the affidavit, Natwick stated that on September 17, 2006, the SJPD received a “Narcotic Incident Report” from “an anonymous female who stated that a white male adult named ‘John’ who lives at 6038 Dorn Court is selling drugs. The anonymous reporting party further stated that there are people coming and going from this house at all times of the day and night. She stated that these visitors stay for 3-5 minutes then leave the residence. The reporting party stated that she knows people are purchasing drugs from this house because the buyers often accidentally come to her house to purchase drugs.”
The affidavit stated that on September 19, 2006, SJPD officers Paul Fontaine and Steve Corbin conducted surveillance on 6038 Dorn Court “for approximately 1½ hours. During this time, they observed two individuals arrive at the residence, stay for approximately 3-5 minutes then leave. These individuals were not stopped.”
The affidavit continued: “On September 22, 2006 the [SJPD] received a second Narcotic Incident report from an anonymous male. The anonymous reporting party stated that someone on Dorn Court is selling narcotics. He stated that he is frustrated with all the people walking and driving into the court due to a single house selling drugs. The male described the house … [and stated that] the address is 6038 Dorn Court. The anonymous male further stated that on September 21, 2006 he noticed numerous cars pull up to the residence, spend 5 minutes in the residence then leave. [¶] On September 24, 2006 Officer Fontaine and Corbin again conducted surveillance at the … residence … for approximately 1½ hours. During this time, they observed 2 individuals arrive at the residence, stay for approximately 3-5 minutes then leave. These individuals were not stopped.”
Natwick stated twice that based on his training and experience, “this type of traffic is consistent with the sales of narcotics. People purchasing narcotics commonly enter a residence and stay only long enough to purchase the controlled substance.”
The affidavit also stated: “Within the past 10 days officers from the [SJPD] METRO unit conducted a surveillance at the above-described residence. Officers saw an individual arrive at the residence and enter the residence. The individual stayed inside the residence for approximately 3 minutes. As the individual left the residence officers followed the vehicle out of the area, never losing visual contact with the vehicle. Officers conducted a traffic stop and located approximately ½ ounce of methamphetamine inside the vehicle. The individual stated that he had just come from his cousin’s house on Dorn Court. However, he did not make any statement about where he obtained the methamphetamine.”
Issuance of Warrant and Motion to Quash Warrant
On October 11, 2006, the court issued a search warrant commanding a search of the property at 6038 Dorn Court. Defendant was subsequently charged with possession of methamphetamine, cocaine, hydrocodone, and marijuana for sale. After his motion to quash the search warrant was denied, defendant pleaded no contest to each of the charges.
Discussion
Defendant contends that the search of his residence was illegal, because the affidavit in support of the search warrant did not support a finding of probable cause. He argues that the warrant was factually deficient because the information from the two anonymous informants was not corroborated sufficiently to instill confidence in the information they provided.
Probable cause in this context “ ‘is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.’ (Illinois v. Gates (1983) 462 U.S. 213, 232.) It is less than proof beyond a reasonable doubt (id. at p. 235); less than a preponderance of the evidence (ibid.); and less than a prima facie showing (ibid.). [¶] Probable cause is a ‘particularized suspicion’ (Texas v. Brown (1983) 460 U.S. 730, 742); it is ‘facts that would lead a man of ordinary caution … to entertain … a strong suspicion that the object of the search is in the particular place to be searched’ (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564); ‘probable cause requires only a … substantial chance.’ (Illinois v. Gates, supra, 462 U.S. at p. 243, fn. 13.)” (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783.) In determining whether there is probable cause, a magistrate “is entitled to rely upon the conclusions of experienced law enforcement officers.” (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315.) Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564.)
Standard of Review
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] ‘The task of the issuing magistrate is simply to make a practical, commonsense 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.’ [Citation.] In a pre-Proposition 8 case, [the California Supreme Court] stated: ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, … [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.] The magistrate’s determination of probable cause is entitled to deferential review.” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041; see Illinois v. Gates (1983) 462 U.S. 213, 236, 238-239.)
“[A]ffidavits for search warrants … must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. … A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” (United States v. Ventresca (1965) 380 U.S. 102, 108-109.)
“When reviewing the grant or denial of a motion to [quash a warrant and suppress evidence], an appellate court must uphold the trial court’s express or implied findings of fact if the facts are supported by substantial evidence. However, we use our independent judgment to determine whether those facts establish probable cause. [Citation.] We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. [Citation.] [¶] A reviewing court will consider the totality of the circumstances to determine whether the information contained in an affidavit supporting the application for a warrant establishes a fair probability that a place contains contraband or evidence of a crime. [Citation.] Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants.” (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716 (Mikesell).) The defendant bears the burden of establishing the invalidity of a search warrant. (People v. Garcia (2003) 111 Cal.App.4th 715, 720.)
Corroboration
An informant’s veracity or trustworthiness may be established in a number of ways. If the informant has a track record of providing accurate information in the past, he or she may be presumed to be trustworthy on subsequent occasions. Statements by an informant against his or her own penal interests also tend to show the informant’s veracity. That two apparently unassociated persons make the same assertion increases the probability that it is true. Reliability may also be demonstrated through independent police corroboration of the information provided. (People v. Terrones (1989) 212 Cal.App.3d 139, 146-147.)
“The purpose served by corroboration is ‘to establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth. Corroboration of part of the information provided by the informant [gives] credibility to the remainder of the information.’ [Citation.] It is sufficient that an informant’s statements are corroborated in a number of key respects, and a piecemeal approach is not required.” (People v. Rochen (1988)203 Cal.App.3d 684, 689.) Moreover, “[f]or corroboration to be incriminating it is not necessary that the activities the police observe point unequivocally toward guilt. It is sufficient that those activities give rise to a reasonable inference or strong suspicion of guilt.” (People v. Kershaw (1983) 147 Cal.App.3d 750, 759 (Kershaw), citing People v. Fein (1971) 4 Cal.3d 747, 754 (Fein), disapproved on another ground in People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
Corroboration need not be in any particular form. Law enforcement need only confirm the untested informant’s reliability “in essential respects”; it need not establish every element of probable cause by independent means. (People v. Clark (1992) 3 Cal.4th 41, 141.) An informant’s bare conclusion may be buttressed by secondary information, which itself does not amount to probable cause, but which fortifies the informant’s information, so that the two, in combination, provide sufficient cause for the issuance of a search warrant. (Ibid.; Fein, supra, 4 Cal.3d at p. 754; People v. Caron (1981) 115 Cal.App.3d 236, 242.)
Reliability is not shown by corroborating easily obtainable facts about the defendant that are unrelated to the reported criminal activity. (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 939-940 (Higgason).) In Higgason, the police verified information regarding the defendant’s physical description, his residence, and his vehicles. The court stated that the “corroboration” supplied by the independent police investigation “were ‘easily obtained facts and [then existing] conditions.’ [Citation.] In other words, they were not facts to which any ‘degree of suspicion’ attached.” (Id. at p. 939.) The court explained that “courts take a dim view of the significance of such pedestrian facts.” (Id. at p. 940.) “ ‘[I]n order for corroboration to be adequate, it must pertain to [the] defendant’s alleged criminal activity; accuracy of information regarding the suspect generally is insufficient.’ ” (Ibid., citing Fein, supra, 4 Cal.3d at pp. 752-753.)
Analysis
Defendant claims the police investigation in this case failed to corroborate the information from the informants. He argues that the police could have conducted a longer stakeout and verified that visitors come and go at all hours of the day and night. He argues that the police could have stopped more than one car and could have questioned other visitors to the property; that they could have conducted an undercover buy or knocked on the door and attempted “a consensual contact … to see if they could see or smell drugs in plain view.” Defendant argues that the police in this case “did not corroborate even the publically-available ‘pedestrian’ ” facts about defendant.
However, the inquiry is not what the police could have done, for it is always possible with hindsight to think of additional investigative techniques that could have been used. The inquiry is whether, taken as a whole, the police have provided sufficient corroborating evidence to conclude that the information from the informants was sufficiently reliable that it created probable cause to search.
In his opening brief, defendant does a comparative analysis, comparing this case to two cases in which the Court of Appeal found sufficient corroborating evidence to support the issuance of the warrant (Kershaw, supra, 147 Cal.App.3d 750 and Mikesell, supra, 46 Cal.App.4th 1711) and two cases in which the court concluded that there was insufficient corroboration (Higgason, supra, 170 Cal.App.3d 929 and Bailey v. Superior Court (1992) 11 Cal.App.4th 1107 (Bailey)). He argues that this case is more like Higgason and Bailey than Kershaw and Mikesell.
In Kershaw, an anonymous informant called police out of concern for a relative, who regularly bought cocaine from the defendant. The informant gave police the defendant’s name, nickname, telephone number, and street name and described his car. The informant also said the defendant dealt in kilos of cocaine wrapped in newspaper, carried a .45 caliber pistol, and kept the cocaine at his home and at another location. Police corroborated the defendant’s name, nickname, street name, telephone number, and car information. They also conducted surveillance and observed heavy evening foot traffic to and from the defendant’s home. Further investigation disclosed that during the previous year, the defendant had been arrested for possession of cocaine for sale, and there was an outstanding arrest warrant for a similar charge. (Kershaw, supra, 147 Cal.App.3d at pp. 752-753.) On appeal, the court found the affidavit sufficient to support the warrant. Although the informant was not a presumptively reliable “ ‘citizen informant,’ ” the court found the detailed information the informant provided to be more than an anonymous conclusory “ ‘tip.’ ” (Id. at pp. 754-758.) The court found that when considered as a whole, evidence of staggered, regular foot traffic at night to and from the house, expert opinion that the heavy foot traffic was consistent with drug dealing, and the defendant’s arrest record for narcotics corroborated the informant’s information. (Id. at pp. 759-760.)
In Mikesell, the sheriff’s department received a tip from an “untested” informant that the defendants (husband and wife) were selling methamphetamine from their home in a rural neighborhood. (Mikesell, supra, 46 Cal.App.4th at p. 1715.) They received a second tip five months later from an alleged citizen informant who had witnessed “heavy car traffic to and from [the defendants’] home” and said the defendants were selling a variety of drugs. A deputy subsequently conducted surveillance and observed numerous cars arrive one evening while the defendants were not at home. Later that night, after the defendants had returned, the officer observed eight cars arrive at defendants’ home in 70 minutes. The occupants of seven of the cars stayed “for just a few minutes” and left; six of the cars had been there earlier that evening. (Ibid.) The next day a second citizen informant told the officer that one of his relatives had purchased cocaine from one of the defendants the previous summer. (Ibid.) A search warrant from a search done two years earlier established that the defendants had been involved in drug transactions in the past. The court noted that the officer had corroborated the claim of heavy traffic to and from the defendant’s home with firsthand observation of recent traffic and that the previous warrant linked the defendants to the drug trade. (Id. at pp. 1717-1718.) The court concluded that the totality of the circumstances demonstrated probable cause to issue the warrant. (Id. at p. 1719.)
Defendant’s reliance upon Higgason and Bailey is misplaced. In Higgason, three anonymous informants reported to the police that they suspected drug sales from the defendant’s home. The first informant claimed personal knowledge of drug sales over a six-month period. The second informant observed heavy foot traffic to and from the defendant’s apartment. The third informant claimed her boyfriend was buying marijuana from the defendant. The police investigation established only that the defendant lived at the apartment and provided a physical description of the defendant and his vehicles. As we noted before, the court concluded three anonymous tips “corroborated” only by obtaining the suspect’s identifying information, but not by the independent observation of suspicious activities, did not establish probable cause. (Higgason, supra, 170 Cal.App.3d at pp. 939-940.)
In Bailey, one anonymous informant and one citizen informant reported recent heavy foot traffic to and from the defendant’s apartment. The informants believed that the defendant was selling drugs or engaging in prostitution. The police only confirmed that the defendant lived in the apartment in question. (Bailey, supra, 11 Cal.app.4th at pp. 1110, 1112.) The Bailey court concluded that the informants’ information and the minimal police investigation, which did not corroborate any suspicious activity, did not constitute probable cause to search the defendant’s apartment. (Id. at p 1113.)
We begin by noting that in this case, two apparently unassociated informants provided mutually supportive information, which increased the probability that it was true. (People v. Terrones, supra, 212 Cal.App.3d at pp. 147.) The reliability of the female informant’s report was enhanced by her assertion that drug buyers often come to her house by accident, looking to buy drugs.
In contrast to both Higgason and Bailey, the corroboration in this case consisted of more than pedestrian facts about defendant. It pertained to the alleged criminal activity and documented suspicious activity. The police conducted surveillance of defendant’s residence on three separate occasions. The first two times, they stayed for 90 minutes each time; the third time, they were there for an undisclosed amount of time. Each time, they observed visitors who came to the house and remained for only three to five minutes, then leave. Officer Natwick provided expert opinion, based upon his experience and training, that these multiple visits of short duration were consistent with the sale of drugs.
As defendant points out, there is some ambiguity in the affidavit. The affidavit indicates that the first two times the police conducted surveillance, “they observed 2 individuals arrive … stay for approximately 3–5 minutes then leave.” It is not clear whether the officers observed two people arrive together, making a single visit to the house, or whether they observed two persons who arrived separately and thus made two visits to the house. Even if we assume that the officers observed only a single visit each time they conducted surveillance, the affidavit supports the conclusion that the officers had the house under surveillance on three separate occasions and that each time they were present, they observed visitors who stayed for only three to five minutes, which is consistent with drug activity. Though this conduct could be characterized as innocent, it gave rise to a reasonable inference of guilt in light of the totality of the circumstances. (People v. Glenos (1992) 7 Cal.App.4th 1201, 1207.)
Moreover, the third time the officers conducted surveillance, they stopped the vehicle that had left defendant’s house and found half an ounce of methamphetamine in the vehicle. This further corroborated the informants’ claims that people were buying drugs from 6038 Dorn Court. Defendant argues that the court should not have considered the drugs that the officers found during the vehicle stop because the fact that the “driver possessed drugs is not probative of the activity that took place inside [defendant’s] home.” As we noted before, it was not necessary that the evidence in support of the warrant point unequivocally toward guilt, only that it give rise to a reasonable inference or strong suspicion of guilt. (Kershaw, supra, 147 Cal.App.3d at p. 759.) That the driver of the vehicle had drugs in his car after making a short-duration visit to defendant’s house gave rise to a reasonable inference that defendant was involved in drug activity.
The information from the informants and the corroboration provided by the police investigation provided sufficient probable cause for the issuance of the warrant. We therefore conclude that the court did not err when it denied the motion to quash the warrant.
Disposition
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.