P. v. Todd

Filed 2/26/08 P. v. Todd CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gary Paden, Judge.

Gordon B. Scott, 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, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

It was alleged in a felony complaint filed February 14, 2006,^[1]that appellant Michael James Todd committed three felonies, including possession of heroin (Health & Saf. Code, 11350, subd. (a)), and that he had served four separate prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)). At his preliminary hearing, appellant moved to suppress evidence (Pen. Code, 1538.5). The court denied the motion. Thereafter, pursuant to a plea agreement, appellant pled no contest to possession of heroin. The court imposed a three-year midterm prison sentence.

On appeal, appellant contends (1) the court erred in denying appellants suppression motion and, alternatively, (2) that if his appellate challenge to the denial of that motion is deemed waived by the failure to renew the motion in superior court after the preliminary hearing, appellant was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Affidavit

On February 7, City of Visalia Police Detective Stephen Lampe averred in an affidavit in support of his request for a search warrant, inter alia, as follows. He received information from a confidential informant [(CI)] that a White male adult known as Danny, described as being approximately 24 years old, 510 tall, 160 pounds is currently involved in the sales of methamphetamine within the City of Visalia. The CI indicated that Danny lived at 1435 S. Divisadero (the residence) and that he (the CI) could [p]urchase methamphetamine from him at his residence. The CI agreed to make a controlled buy of drugs.

After he was searched for drugs and currency, and none were found, the CI was given U.S. Currency Recorded Funds. He then responded to 1435 S. Divisadero, being kept under constant surveillance by Narcotic[s] Detectives.

The CI went into the residence and met with Danny. Thereafter, the CI was observed leaving the residence and subsequently met with [Detective Lampe]. The CI turned over the substance, which appeared to be methamphetamine, to [Detective Lampe]. The CI was searched a second time, and no additional narcotics, restricted drugs or city Recorded Funds were found on [him]. [A] presumptive test performed on the substance that the [CI] had purchased, which indicated a positive reaction for methamphetamine. [T]he amount present was commensurate with the amount of funds provided to the [CI].

The transaction described above occurred within the last ten days .

Detective Lampe requested the issuance of a search warrant for the residence and the person of Danny a White male adult, described as being approximately 24 years old, 510 inches tall and 160 pounds.

Issuance of Warrant

The court issued the warrant on February 7.

The Search

Police executed the search warrant on February 9. During the search of the residence police found, inter alia, a loaded handgun, syringes and a quantity of heroin.

Suppression Motion and Preliminary Hearing

On June 20, appellant filed a notice of motion to suppress evidence, directed at all tangible and/or intangible items which relate to the illegal seizure of items removed from [appellants] residence and person on or about February 9, 2006. The motion was heard at appellants preliminary hearing on August 18. At the conclusion of that hearing, the court denied the motion and held appellant to answer on the charges set forth in the felony complaint filed February 14. Appellant entered his plea on October 27. At no time did appellant renew his motion to suppress evidence. On January 2, 2007, the court granted appellants request for a certificate of probable cause (Pen. Code, 1237.5).

DISCUSSION

Appellant first argues the court erred in denying his suppression motion. The People counter, and appellant does not dispute, that appellants challenge to the denial of his suppression motion is waived because appellant failed to renew his motion in superior court following the denial of the motion at the preliminary hearing. We agree. Where, as here, a defendants suppression motion is denied by the trial court sitting as a magistrate at the preliminary hearing, the defendant must renew his challenge in the superior court in order to preserve the issue for appeal. (People v. Lilienthal (1978) 22 Cal.3d 891, 895-897; People v. Garrido (2005) 127 Cal.App.4th 359, 363-365.)

Appellant next argues in the alternative that he was denied effective assistance of counsel because of his trial counsels failure to preserve the search and seizure issue for appellate review.

To establish a claim of ineffective assistance of counsel, a criminal defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms; and there is a reasonable probability that but for counsels failings the result would have been more favorable. (People v. Babbitt (1988) 45 Cal.3d 660, 707) Thus, where such a claim is based on counsels failure to move to suppress evidence, the defendant must show that (1) reasonably competent counsel would have made such a motion, and (2) it is reasonably probable the motion would have been granted. (People v. Frye (1998) 18 Cal.4th 894, 988-989.)

If the defendants showing is insufficient as to one component of this claim, we need not address the other. (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.CT. 2052].) In this case, it is unnecessary to consider whether trial counsels performance was deficient, because, as we explain below, it is not reasonably probable that appellants suppression motion would have been successful had it been renewed, and therefore appellant has not made a sufficient showing of prejudice.

The Fourth Amendment to the United States Constitution states that no Warrants shall issue but upon probable cause, supported by oath or affirmation . (U.S. Const. Amend. IV.) 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. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) In determining whether an affidavit is supported by probable cause, the magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... 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 [103 S.CT. 2317] (Gates).) Certainty is not required at this stage. (People v. Andrino (1989) 210 Cal.App.3d 1395, 1401.) Rather, [p]robable cause means less than evidence which would justify condemnation . It [describes] circumstances which warrant suspicion. [Citations.] (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573.)

The affidavit must establish a nexus between the criminal activities and the place to be searched. (People v. Garcia (2003) 111 Cal.App.4th 715, 721.) That is, [t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought. (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556 [98 S.Ct. 1970], fn. omitted; accord, People v. Garcia, supra, 111 Cal.App.4th at p. 721 [an affidavit ... must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place].) [Citations.] (Ibid.) Moreover, [t]he element of time is crucial to the concept of probable cause. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) [A]n affidavit in support of a search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. (People v. Mesa (1975) 14 Cal.3d 466, 470, italics added, citing SGRO v. United States (1932) 287 U.S. 206, 210 [53 S.Ct. 138].) The general rule is that information that is remote in time may be deemed to be stale and therefore unreliable. (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) [I]nformation is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)

In assessing the adequacy of a search warrant affidavit, we must be mindful of the following: [Such affidavits] are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.... [] [C]ourts should not invalidate ... warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. (United States v. Ventresca (1965) 380 U.S. 102, at pp. 108-109 [85 S.Ct. 741].) Further, Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[ ]. (People v. Garcia, supra, 111 Cal.App.4th at p. 720.)

The principles summarized above demonstrate that the question before us is whether the affidavit was sufficient to establish a fair probability that contraband would be found in the residence at the time of the issuance of the search warrant. Appellant suggests that [a] solitary purchase performed under the watchful eyes of law enforcement was insufficient for this purpose because there was nothing in the affidavit to substantiate any of the allegations of the informant regarding Dannys appearance, living situation, or involvement in the sales of methamphetamine. We disagree. The information contained in the affidavit that the CI entered the residence with money and no drugs and came back out with methamphetamine and no money strongly suggests he purchased the drugs in the residence, and this inference, in turn, strongly suggests that more drugs could be found in the residence. Thus, in People v. Watson (1979) 89 Cal.App.3d 376, where an informant made a single controlled buy of heroin, the court upheld the warrant, stating: It is irrelevant that the affidavit did not directly implicate appellant in the sale of heroin. It is enough that it showed probable cause that heroin would be found in the apartment. Additionally, certainty is not required. Probable cause requires merely a strong suspicion of the existence of contraband. [Citation.] The fact that [the informant], under the surveillance of the police officers, obtained heroin from the apartment was sufficient for probable cause to believe that more heroin could be found therein. (Id. at p. 385.)

Appellant, noting that in Watson the warrant was issued within one day of the controlled buy (People v. Watson, supra, 89 Cal.App.3d at pp. 379-380), argues that here, where the affidavit states the controlled buy occurred within the last ten days and therefore the buy could have taken place as long as 10 days before the execution of the affidavit, the information in the affidavit was stale, because there was no corroboration that Danny lived at the residence, and [t]here is no basis for presuming that a person who sells drugs on one occasion at a location where he does not reside will necessarily keep his drugs at that location.

On this point, we find instructive the following often cited principle: The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed. (2 La Fave, Search and Seizure (4th ed. 2004) 3.7(a), p. 374, quoting Andresen v. State (1975) 24 Md.App. 128, 331 A.2d 78, affd. sub nom Andresen v. Maryland (1976) 427 U.S. 463.) And as stated by Professor La Fave: Of the factors identified in Andresen , the one which is most frequently relied upon in the appellate decisions is the character of the criminal activity under investigation. ( Id. at p. 374.) [T]he continuity of the offense is the single most important factor in the determination of whether the probable cause is valid or stale .] ( Id. at p. 380.)

Here, the affidavit indicates the CI informed the affiant of the following: an individual the CI identified as Danny lived in the residence; that individual was currently involved in the sales of methamphetamine; and the CI could purchase methamphetamine from that individual at the residence. Although the affidavit is not a model of clarity, when it is interpreted in a common-sense manner, the phrase currently involved and the reference to sales in the plural indicate an ongoing drug dealing operation.

We recognize that neither the assertion of the continuity of the offense or the claim that the person conducting this operation was a resident of the place to be searched are corroborated. However, appellants suggestion that the lack of corroboration on these points is fatal to the adequacy of the affidavit is without merit because, as demonstrated above, the CIs claim that he could purchase methamphetamine at the residence was independently corroborated by police investigation.

Gates is instructive on this point. In that case, the police received an anonymous letter detailing the manner in which two defendants moved drugs between Florida and Illinois, and predicting a trip on May 3. Police surveillance confirmed such a trip. In upholding the search warrant, the court emphasized the informants ability to provide predictions of future events: The corroboration of the letters predictions that the Gates car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informants other assertions also were true. [] [T]he anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letter writers accurate information as to the travel plans of each of the Gates was of a character likely obtained only from the Gates [sic] themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gates alleged illegal activities. (Gates, supra, 462 U.S. at pp. 244-245, fn. omitted, italics added.)

Similarly, in the instant case, the CIs demonstrated reliability as to an event not easily predicted, viz., a successfully consummated drug transaction, was sufficient to give rise to a fair probability that other information provided by the CI was also accurate, including the crucial factor that the person who lived in the place for which the search warrant was sought was engaged in ongoing drug sales. We acknowledge that the lack of any corroboration of criminal activity taking place in the residence before or after the controlled buy make the instant case a marginal one in terms of the strength of the showing of probable cause. However, as indicated above, such cases should be resolved in favor of the validity of the search warrant. (People v. Garcia, supra, 111 Cal.App.4th at p. 721.) Therefore, it is not reasonably probable that appellant would have fared any better with his suppression motion had he renewed it in superior court following the denial of the motion at the preliminary hearing. Appellant has not demonstrated that he was prejudiced by his counsels conduct.

DISPOSITION

The judgment is affirmed.

^*Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1] Except as otherwise indicated, all references to dates of events are to dates in 2006.