Opinion
F051694
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN OCHOA CRUZ, Defendant and Appellant.
Richard J. Krech, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
An information charged defendant Adrian Ochoa Cruz with selling or transporting (Health & Saf. Code, § 11379, subd. (a); count 1) and with possessing for sale (Health & Saf. Code, § 11378; count 2) a controlled substance (methamphetamine) after law enforcement officers executing a search warrant found methamphetamine at an apartment in Bakersfield on June 21, 2006. The court denied defendants motion to quash the warrant and suppress the evidence (Pen. Code, § 1538.5). Defendant pled no contest to count 1 in return for which the court sentenced him to a stipulated two-year mitigated term and dismissed count 2 after he stipulated to a factual basis for the plea (the police report and the lab report). The court granted his release on bail pending appeal. His sole ground for appeal is that the lower court erroneously denied his motion to quash the warrant and suppress the evidence.
Preliminarily, we note that both counsel cite as authority for the facts not only the evidence at the hearing on the motion to quash the warrant and suppress the evidence but also the preliminary hearing transcript. However, the preliminary hearing transcript is not admissible on a later motion to quash the warrant and suppress the evidence unless a hearsay exception for former testimony applies (but here, where the affiant was the sole witness, none appears) or the parties so stipulate (but here, where the parties argued "`the four corners of the document" without introducing any evidence, there is none). (Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 94 (Wilder).) So we are obliged to ignore the preliminary hearing evidence, which was not before the court at the hearing on the motion and therefore is not properly before us. (Ibid.)
The evidence at the hearing on the motion discloses that the affiant received information from a confidential reliable informant (CRI) within the previous 10 days that the CRI could purchase an amount of methamphetamine from a subject known only as "Ingo" (identified after his arrest as Adrian Ochoa Cruz), a 30-something Hispanic male with black hair who stood about five feet nine inches tall, weighed about 180 pounds, and drove a blue and silver GMC truck. The affiant and other members of the California Multi-Jurisdictional Methamphetamine Enforcement Team (CAL-MMET) met with the CRI and told him or her to call defendant to attempt to purchase methamphetamine. After talking with defendant, the CRI told the affiant that defendant wanted to meet him or her "at a location in Kern County." The affiant gave the CRI a small sum of CAL-MMET funds and told the CRI to drive to that location to purchase methamphetamine.
CAL-MMET officers saw the CRI arrive at that location and, a few minutes later, saw a person fitting defendants description park the GMC truck next to the CRIs vehicle, enter the passenger side of the CRIs vehicle and, a few more minutes later, return to the GMC truck and drive away. The CRI later handed the affiant an off-white substance (which the affiants training and experience led him to believe was methamphetamine) and told the affiant that he or she bought the substance from defendant inside the CRIs vehicle after defendant parked the GMC truck next to the CRIs vehicle and entered the passenger side of the CRIs vehicle. CAL-MMET officers searched the CRI and his or her vehicle before and after the controlled buy but found no contraband or large sums of money either time.
After defendant drove away, CAL-MMET officers conducted a surveillance of him "as he drove around the Bakersfield area." On "the completion of" surveillance, a police officer saw defendant park the GMC truck in the parking lot of an apartment complex and walk to an apartment where he opened the door with a key and went inside.
The affiant later conducted a DMV check of the GMC truck (which was registered to a woman with a different surname at a different address) and a California Justice Information Systems (CJIS) check of that woman (on whom CJIS had no "usable information"). The affiants training and experience led him to believe that "subjects involved in the sale of methamphetamine will often borrow and use vehicles registered to other subjects" and "will often meet subjects who wish to purchase methamphetamine in a public place" to keep themselves and their residences "from being detected by law enforcement."
On the basis of those facts, the court issued a warrant for the search of defendants person, the GMC truck and the apartment for, inter alia, methamphetamine, paraphernalia, large amounts of currency and documents showing the identity of anyone in possession of methamphetamine or in control of the premises. The affiant executed the warrant and compiled the inventory in the return to the search warrant documenting the seizure, inter alia, of 104.2 grams of suspected methamphetamine in plastic baggies, two digital scales in working order, $2,152 in cash, a utility bill, a pay stub and Social Security cards, all in defendants name.
The parties agree on the governing law. In Illinois v. Gates (1983) 462 U.S. 213 (Gates), the United States Supreme Court "embraced a `totality of the circumstances approach under which `[t]he 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." (People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella), quoting Gates, supra, at p. 238.) The high court "observed that `probable cause 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." (Camarella, supra, at p. 601, quoting Gates, supra, at p. 232.)
On the premise that "the only evidence subject to suppression" was found "on [defendants] person, in his underwear," the Attorney General argues that on the motion below the parties and the court alike were "chasing a `red herring" — and that defendant "continues the chase on appeal" — by focusing on "whether or not there was probable cause to justify the search warrant for [his] apartment." However, the sole authority for the Attorney Generals premise — that the drugs were found on defendants person — is the preliminary hearing transcript, which (as noted above) was not before the court at the hearing on the motion and therefore is not properly before us. (Wilder, supra, 92 Cal.App.3d at p. 94.) Since the facts before the court at the hearing on the motion and properly before us show only that methamphetamine was found on "the premises" — with no additional specificity at all — the Attorney Generals "`red herring" argument fails for want of a valid premise.
Defendant characterizes the issue before us as whether the "affidavit lacked probable cause in failing to present sufficient facts showing that it was reasonable to expect to find contraband in the locations specified" and, if so, whether law enforcement reliance on the warrant was "objectively reasonable." He candidly acknowledges that probable cause generally exists to search the residences of drug dealers since "`evidence of involvement in the drug trade is likely to be found where the dealers reside" (People v. Pressey (2002) 102 Cal.App.4th 1178, 1184 (Pressey), italics added), but emphasizes that his sole nexus to the apartment was a single entry with a key and argues that the record betrays a "`glaring" absence of any corroborating evidence like rent or utility records showing that he resided there. The Attorney General contends that observing defendant enter the apartment with a key is sufficient evidence to support probable cause that he resided at the apartment.
Drug dealing by itself can furnish probable cause to search the dealers residence. (Pressey, supra, 102 Cal.App.4th 1178 and authorities cited therein.) Since there was evidence in the affidavit that defendant sold drugs, the magistrate found there was probable cause to search his residence. The officers observation that defendant entered the apartment with a key is evidence that he resided at that apartment. (United States v. Grossman (2005) 400 F.3d 212, 218 ["... it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key"]; People v. Sutton (1976) 65 Cal.App.3d 341, 348 ["Appellants entry into the apartment with a key prima facie indicated that she was an occupant"]; People v. Fay (1986) 184 Cal.App.3d 882, 892-893 ["Once Totah had entered the apartment building and was seen standing in front of the apartment about to insert keys into the lock, the officers had reasonable grounds to believe that he was a resident of the apartment"].)
We are required to give deference to the magistrates finding of probable cause. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) Here, the magistrate determined that the evidence was sufficient to warrant probable cause to believe that defendant lived in the apartment that was searched. Probable cause turns "on the assessment of probabilities in particular factual contexts ...." (Gates, supra, 462 U.S. at p. 232.) In the context of this case, it was reasonably probable that defendant resided at the apartment based on his entering the apartment with a key. Although there may be other possible explanations for his having a key to the apartment, the most likely explanation is that he lived at the apartment.
Defendant cites People v. Hernandez (1994) 30 Cal.App.4th 919 (Hernandez). In Hernandez, the affidavit stated that a man known only as Chavelo twice sold heroin to two informants. (Id. at p. 921.) After a controlled buy in January 1993, Chavelo parked the Oldsmobile he was driving at a residence that police noted appeared vacant two months later. (Ibid.) After a controlled buy in March 1993, Chavelo parked the Camaro he was driving behind a different residence, where police over the next several days noted that both the Oldsmobile and the Camaro were parked. (Ibid.) In April 1993, police watching the latter residence saw another man drive the Camaro and spoke to an occupant who said all of the occupants were "`one large family." (Id. at p. 922.) Police executing a search warrant of the latter residence issued on those facts arrested Hernandez, who was present, after finding heroin and paraphernalia in his toolbox. Chavelo was not present. (Ibid.) The trial court denied the motion to suppress. The appellate court reversed, holding that the affidavit failed to establish a nexus between the criminal activity and the latter residence (and held further that the good faith exception under United States v. Leon (1984) 468 U.S. 897 did not apply). (Hernandez, supra, at pp. 924-925.)
Hernandez is clearly distinguishable. Defendant was seen entering the residence. Chavelo was never seen entering the residence. (Herndandez, supra, 30 Cal.App.4th at p. 925 ["The supporting affidavit failed to state that Chavelo ever entered the ... residence"]; ibid., fn. 4 ["We presume that if an officer saw Chavelo enter the residence, a simple recitation would appear in the affidavit"].) Defendant possessed and used a key to enter the residence. There was no evidence Chavelo had a key to the residence. The Hernandez case is authority for the proposition that observing a drug dealer park his vehicle behind a residence without more is insufficient to support a probable cause finding that the dealer lived at that residence. Here, there were the additional facts that defendant entered the apartment and did so with a key.
DISPOSITION
The judgment is affirmed.
I Concur:
Dawson, J. --------------- Notes: Judge Hoover ruled on the motion to quash and to suppress; Judge Felice presided at sentencing.
GOMES, J., Dissenting.
Hastily painting with too broad a brush, the majority glosses over the historically stringent centuries-old principle of protection of the privacy of the home at the heart of the Fourth Amendment. Though perfunctorily noting the "totality-of-the-circumstances" requirement of "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), italics added), the majority diminishes that bedrock principle of federal criminal constitutional jurisprudence to a fair possibility that contraband or evidence of a crime will be found where a suspect might (or might not) reside.
Relying on the summary of California case law in People v. Pressey (2002) 102 Cal.App.4th 1178, 1184 (Pressey), the majority writes, "Drug dealing by itself can furnish probable cause to search the dealers residence." (Maj. opn. at p. 5, italics added.) In Pressey, a search warrant issued for an address that Department of Motor Vehicles records listed as the defendants after he admitted to a police officer that he lived there. (Id. at p. 1181.) First, the sole issue before us — whether the defendant resided in the residence for which the magistrate issued the search warrant — was not before the court in Pressey. Second, the majority couples the rule of law quoted above with a non-sequitur: "Since there was evidence in the affidavit that Cruz sold drugs, the magistrate found there was probable cause to search his residence." (Maj. opn. at p. 5, italics added.) His residence?
The majority answers that question in the affirmative — "The officers observation that Cruz entered the apartment with a key is evidence that he resided at that apartment." — by relying on a three-year-old case from the United States Court of Appeals for the Fourth Circuit, a 22-year-old case from the Court of Appeal, First Appellate District, Division Four, and a 32-year-old case from the Court of Appeal, Second Appellate District, Division Three. (Maj. opn. at p. 5, italics added.) The majority takes liberties with all three cases.
As for the federal case, the majority uses an ellipsis to omit part of the sentence from which the majority quotes: "... it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key." (Maj. opn. at p. 5, quoting United States v. Grossman (4th Cir. 2005) 400 F.3d 212, 218 (Grossman), italics added.) The function of an ellipsis is to mark the "omission of a word or phrase necessary for a complete syntactical construction but not necessary for understanding." (American Heritage Dict. (4th ed. 2006) p. 581, italics added.) The ellipsis in the majoritys quote from Grossman, however, marks the omission of a phrase — "Under these circumstances," — that is imperative for understanding since material circumstances instrumental to the holding in that case are entirely absent here. (Grossman, at p. 218, italics added.)
Those circumstances follow. After the defendant in Grossman was observed dealing drugs (as was Ingo, identified only after his arrest as Cruz), he drove "at least ten blocks out of his way, a driving pattern typical of those involved in drug trafficking and familiar with police surveillance techniques," to a house where a detective saw him "look around in all directions" before he used a key to open the door. (Grossman, supra, 400 F.3d at p. 215.) Here, on the other hand, there is no evidence either that Ingo drove or looked around furtively before using a key to open the door.
After the defendant in Grossman left the house and walked to a different car than the one he had driven there, a detective approached him and asked him questions to which he replied with "several plainly false statements." (Grossman, supra, 400 F.3d at p. 215.) He told the detective he had not left the house but had driven the car to which he had walked. (Ibid.) Confronted by the fact the detective had seen him enter the house, the defendant said that his girlfriend had let him in and that he had no other way to get in. (Ibid.) Confronted by the fact the detective had seen him use a key to get into the house, the defendant "admitted as much." (Ibid.) Asked if anyone at the house could verify his story, he "contradicted himself again by stating that he was the only one home." (Ibid.) Asked if he could verify his story, he let the detective into the house "presumably with the key he had denied owning." (Ibid.) Asked for permission to search the house, the defendant said that only his girlfriend could give him permission. (Ibid.)
"Conveniently," Grossman noted, the defendant "said he did not have any way of contacting his girlfriend, and he actually did not even remember how to spell her name." (Grossman, supra, 400 F.3d at p. 215.) He told the detective, "I stay here, but that doesnt mean I live here." (Ibid.) "Under these circumstances, it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key," the entire sentence in Grossman reads, referring to the defendants furtive behavior and multiple contradictions and lies about whether he used a key, whether he left the house, whether he drove the car he said he drove, and whether his girlfriend let him in or whether he was the only one home, followed by his implausible denials that he knew how to contact her or even how to spell her name, capped off by his outright admission to the detective that he stayed there. (Id. at p. 218, italics added.) Since the only fact connecting Cruz to the residence here was his use of a key to open the door once, the evidence fails to show probable cause that he owned a key.
As for the First Appellate District case, the majority quotes, without the use of an ellipsis, only the following part of a sentence from that case: "Once Totah had entered the apartment building and was seen standing in front of the apartment about to insert keys into the lock, the officers had reasonable grounds to believe that he was a resident of the apartment." (Maj. opn. at p. 5, quoting People v. Fay (1986) 184 Cal.App.3d 882, 892-893 (Fay).) At the end of that sentence from Fay is a critical clause the majority omits — "and therefore one of the two sellers." — that refers to law enforcements explicit knowledge of drug dealing inside the apartment before the officer saw Totah. (Id. at p. 893.)
Here are those details. After a confidential reliable informant (CRI) in Fay told officers "two individuals were selling heroin" inside the apartment, officers monitored a controlled buy of heroin by the CRI inside the apartment, where the CRI "observed additional heroin on the premises" and where one of the individuals told the CRI to "come back anytime for more." (Fay, supra, 184 Cal.App.3d at p. 886.) A search warrant "authorizing officers to search the apartment for heroin" issued. (Id. at p. 887.)
Before the officer saw Totah, he looked at the warrant, was "familiar with the facts of the case," and was "aware that there had been `either some arrests or investigations at that address and that `the two men in our investigation who we suspected lived there had lengthy criminal records ... including narcotics." (Fay, supra, 184 Cal.App.3d at p. 887, ellipsis in original, italics added.) Here, in sharp contrast, no evidence connects drug dealing to the apartment where Ingo once used a key. Likewise, there is no evidence that Ingo had any criminal record, let alone a lengthy one involving narcotics offenses, as did the suspects in the apartment where the CRI made a controlled buy, saw additional heroin, and received an invitation to "come back anytime for more." (Fay, supra, at pp. 886-887.) Yet the majority equates Ingos use of a key to open the door once with abundant evidence in Fay tying together the apartment, the drug dealing inside the apartment, and the suspects dealing the drugs there before the officer saw Totah "about to insert keys into the lock." (Id. at p. 893.).
As for the Second Appellate District case, the majority relies on the sentence, "Appellants entry into the apartment with a key prima facie indicated that she was an occupant." (Maj. opn. at p. 5, quoting People v. Sutton (1976) 65 Cal.App.3d 341, 348 (Sutton).) Sutton was a warrantless emergency aid case, however, not a search and seizure case. Sutton openly acknowledged (but the majority here ignores) that critical distinction: "`In the matter at bench we are not concerned with justification for a search. There was no search made, tried or intended. The only issue is whether the entry was reasonable." (Sutton, supra, at p. 351, quoting In re Dawn O. (1976) 58 Cal.App.3d 160, 164, italics added.) Here, on the other hand, our only concern is justification for the search.
In Sutton, the officer had a host of corroborative circumstances on which to rely before he entered the apartment under the emergency aid doctrine. (Sutton, supra, 65 Cal.App.3d at pp. 347-348.) First, he received a police radio dispatch reporting small children left alone inside the apartment. (Id. at p. 345.) Second, by verifying reliable information in a citizen-informants report the originating officer had probable cause requiring no corroboration. (Id. at pp. 347-348.) Third, the officer receiving the report went to the apartment, saw lights on and heard a radio or television playing, and knocked on the door twice, but even after 10 minutes he received no answer. (Id. at p. 345.) Fourth, back at his squad car radioing for additional details, the officer saw a woman walk to the apartment "after an absence at least as long as the duration of his presence in the vicinity of the apartment," open the door with a key, and start to enter. (Id. at p. 348.)
Fifth, just as the woman was about to close the door, the officer "put his foot in the door to prevent closure" and, through the open door, saw trash and dirty clothes in the kitchen and a baby bottle in the living room. (Sutton, supra, 65 Cal.App.3d at pp. 345-346.) Sixth, after engaging her in 30 to 40 seconds of conversation, the officer noticed that her "speech was slurred," that she had a strong odor of alcohol on her breath, and that she had a "`hard time hanging onto the door." (Id. at p. 346.) Seventh, on the basis of information from dispatch and from his own observations, the officer formed the opinion she was in no condition to care for children safely. (Ibid.) So he crossed the threshold, walked through the living room to the bedroom, and found two young children there. (Ibid.) In stark contrast, the evidence here shows nothing at all about the apartment other than Ingos use of a key to open the door once.
Noting the well settled rule that "`"emergencies of overriding magnitude"" may justify a warrantless search without prior judicial approval, Sutton held that the officer who entered the womans apartment justifiably acted on "`a "showing of true necessity — that is, an imminent and substantial threat to life, health or property" — "under the doctrine of necessity recognized by our Supreme Court in People v. Roberts [1956] 47 Cal.2d 374, 377....[, where] the court said: `Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose." (Sutton, supra, 65 Cal.App.3d at pp. 349-351, italics omitted.)
Indeed, on entering a dwelling under the emergency aid doctrine, a subcategory of the community caretaking exception, "officers view the occupant as a potential victim, not a potential suspect." (People v. Ray (1999) 21 Cal.4th 464, 471.) Ingo, on the other hand, was a potential suspect, not a potential victim. Even in the context of the doctrine of necessity, the "prima facie" sentence on which the majority relies — entirely out of context here and with neither citation to authority nor analysis in Sutton — is mere ipse dixit on which not one case has relied in the ensuing 32 years. (Sutton, supra, 65 Cal.App.3d at p. 348; cf. People v. Lopez (1998) 19 Cal.4th 282, 292-293.)
The majority distinguishes People v. Hernandez (1994) 30 Cal.App.4th 919 (Hernandez), on which Cruz relies, on the ground that he entered the apartment with a key but the person known only as Chavelo did not. (Maj. opn. at pp. 6-7.) In neither Hernandez nor the case before us, however, was there evidence of any other nexus between Chavelo or Ingo and the residences to be searched. Did Chavelo or Ingo reside there? Did Chavelo or Ingo receive mail or phone calls there? Did Chavelo or Ingo pay rent or telephone or utility bills there? Did Chavelo or Ingo own the vehicles used in the buys and parked outside the residences to be searched? Was there any evidence of drug dealing or suspects with narcotics records there? Those are just a few of the ways in which law enforcement could have established a link between Chavelo and Ingo and the respective residences to be searched, but here, as in Hernandez, there was no evidence of any of that. (Id. at p. 924.) Both affidavits raised suspicions, but neither established any nexus at all between criminal activities and the residences to be searched. (Ibid.)
Manifestly, a single entry with a key, without more, fails to establish probable cause that a person is a resident of a residence. Cruz could just as well have been a friend stopping by to feed pets or water plants for a resident on vacation, or a house guest entering a friends or relatives residence while the resident was at work, or a repair person with a master key from an apartment manager entering a residence while the resident who requested the repair was at work.
Even though Grossman, Fay, and Sutton give no cover for the transparent lack of probable cause here, the majority nonetheless transgresses the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." (Payton v. New York (1980) 445 U.S. 573, 601; cf. Wilson v. Layne (1999) 526 U.S. 603, 610 ["Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home"]; Kyllo v. United States (2001) 533 U.S. 27, 37 ["Fourth Amendment sanctity of the home"]; Segura v. United States (1984) 468 U.S. 796, 810 ["The sanctity of the home is not to be disputed"]; United States v. Martinez-Fuerte (1976) 428 U.S. 543, 561 ["sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection"]; United States v. United States District Court (1972) 407 U.S. 297, 313 ["physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed"].)
Finally, the majoritys interpretation of the Fourth Amendment greatly concerns me, not only because it corrupts the historic protection of the privacy of the home at the heart of the Fourth Amendment, but also because it will likely evade scrutiny due to my colleagues decision not to publish. Under the new rule governing publication of appellate opinions, an opinion "should be certified for publication" if it meets any of the criteria in the rule. (Cal. Rules of Court, rule 8.1105(c), italics added.)