P. v. DelReal
Filed 4/12/13 P. v. DelReal CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
NICHOLAS DELREAL III,
Defendant and Appellant.
D061457
(Super. Ct.
Nos. SCD224038,
SCD235801)
APPEAL from
a judgment of the Superior Court
of
County, William H. Kronberger, Jr., Howard
H. Shore,
and Esteban Hernandez, Judges. Affirmed.
INTRODUCTION
A jury
convicted Nicholas DelReal III of transportation
of a controlled substance (Health & Saf. Code, § 11379, subd. (a)),
(Health & Saf. Code, § 11378), possession of 28.5 grams or more of
methamphetamine for sale (Health & Saf. Code, § 11378; Pen. Code, §
1203.073, subd. (b)(2)),
name="_ftnref1" title="">[1]
possession of a short-barreled shotgun (former § 12020, subd. (a)(1)),
possession of a firearm by a felon (former § 12021, subd. (a)(1)),
and possession of Oxycodone (Health & Saf. Code, § 11350, subd.
(a)). As to the possession of
methamphetamine for sale conviction, the jury also found true an allegation
DelReal was personally armed with a handgun (§ 12022, subd. (c)). DelReal subsequently admitted having a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to 11 years in
prison.
DelReal
appeals, contending we must reverse his conviction because the trial court
erroneously denied his pretrial motion to
suppress the evidence against him. He
further requests we independently review the search warrant to determine
whether the affidavit supporting it was properly sealed and whether the
affidavit contained information that should have been disclosed to DelReal to
ensure he had a fair trial.
We conclude
the trial court properly denied DelReal's suppression motion. We further conclude the affidavit supporting
the search warrant was properly sealed and nothing in it required disclosure
for DelReal to have a fair trial. We, therefore, affirm the judgment.
BACKGROUND
According
to the evidence presented at the preliminary hearing, upon which the trial
court decided the suppression motions, San Diego Police Detective Michael Rubio
received information from a citizen informant indicating DelReal was involved
in selling narcotics. The informant
stated DelReal resided in unit 104 at 9384 Twin Trails Drive. He had two vehicles, including a silver BMW
with California license plate number 5RQS142, and he used a pouch or magnetic
device to place narcotics under the wheel well.
On November
23, 2009, Rubio surveilled the Twin Trails Drive property and saw the BMW
parked in front of unit 104. Rubio saw
DelReal leave the complex on a bicycle, return a short time later, and go
inside unit 104. About an hour later,
DelReal and another person left unit 104 and went to the BMW. DelReal placed a pouch underneath the BMW's
right rear tire wheel well. Then,
DelReal and the other person got into the BMW and DelReal drove it away.
Officer
Michael Power stopped the BMW at 9500 Twin Trails Drive because there were no
registration tags on the BMW's rear license plate and a computer check
indicated the vehicle was not registered.
Before Power stopped the BMW, detectives told him DelReal was a
suspected drug dealer and there may be illegal substances stashed underneath
the right wheel well.
After the
stop, DelReal was unable to produce a driver's license. A computer check using DelReal's name and
birth date indicated DelReal's license had expired. Power had DelReal step out of the BMW to
further investigate the status of DelReal's license. Power patted DelReal down for safety reasons,
discovered a switchblade in his right front pocket and arrested him.
Because a
computer check showed DelReal did not have a current driver's license, Power
decided to impound the BMW and ordered a tow truck. The police department's standard policies and
procedures for impounding vehicles included conducting an inventory search of
any part of a vehicle that could contain anything dangerous or illegal prior to
impound. Rubio arrived at the traffic
stop location about 15 to 20 minutes after the residence surveillance. Power informed Rubio of his decision to
impound the vehicle. The tow truck
pulled up as Power and narcotics detectives started inventorying the BMW.
Rubio told
Detective Javie Nunez where he had seen DelReal place the pouch. Nunez reached underneath the wheel well and
removed the pouch. At the time of the
preliminary hearing, Rubio had participated in several hundred car inventory
searches. Eighty to 90 percent of those
searches included checking the wheel wells.
Rubio did not know whether the police department's standard policy and
procedures for vehicle impounds specifically discussed searching wheel
wells. However, they did not prevent an
officer from searching a wheel well.
Rubio
searched the pouch. It contained several
large and small bags of a crystalline substance, multiple empty bags, a small
digital scale, a baggie with several pills, a memory card, and a business
card. Based on his training and
experience, Rubio opined the crystalline substance was a usable amount of
methamphetamine. The parties stipulated
for purposes of the motion to suppress that there were 75.96 grams of
methamphetamine in the pouch. Narcotics
detective Jovanna Derrough opined based on her training and experience that
DelReal possessed the methamphetamine for sale purposes.
After Rubio
and Nunez discovered the narcotics, Power searched the BMW's interior to find
any driver's license documentation. He
found a DMV-issued paper license with DelReal's name on it. At that point, Powers decided not to impound
the BMW and instead parked it.
Derrough
and a team of others executed a search warrant at DelReal's home the same
day. In the master bedroom, the team
found men's clothing, DelReal's identification, dominion and control documents
in DelReal's name, and pay and owe sheets with one entry about "Nick's
info." They also found a short-barreled
shotgun and a loaded handgun in a green, nylon bag. In addition, they found 430 grams of
methamphetamine and pills, including two Oxycodone pills, in a black pouch in a
wall safe. Derrough opined the 430 grams
of methamphetamine was possessed for sale purposes.
DISCUSSION
I
Motions to
Suppress
Before
trial, DelReal brought two motions to
suppress the evidence against him:
an initial motion under section 1538.5, subdivision (a), and a renewed
motion under section 1538.5 subdivision (i).
search of his vehicle was unlawful and tainted the subsequent search of his
home. The trial court denied both
motions. He contends we must reverse his
convictions because the denial of his motions was erroneous.
"In
ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether
the law as applied has been violated.
[Citation.] We review the court's
resolution of the factual inquiry under the deferential substantial-evidence
standard. [Citation.] The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to
independent review." (
891, overruled on another ground by People
v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
A
Automobile Exception
"[S]earches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions." (
347, 357; see also People v. Schmitz
(2012) 55 Cal.4th 909, 916 [warrantless search is constitutionally unreasonable
unless conducted pursuant to an exception to the warrant requirement].) One such exception is the automobile
exception. (Carroll v. United States (1925) 267 U.S. 132, 149;
798, 809.) Under this exception, a
police officer who has probable cause to believe a lawfully stopped vehicle
contains evidence of criminal activity may search any area of the vehicle, or
any container in the vehicle, where the evidence may be located. (Arizona
v. Gant (2009) 556 U.S. 332, 347; California
v. Acevedo (1991) 500 U.S. 565, 570, 579-580; United States v. Ross, supra,
at p. 825; People v. Chavers (1983)
33 Cal.3d 462, 466.) "[C]ontainers
attached to a vehicle, whether a motorcycle or a car, are considered 'in' the
vehicle for purposes of the Fourth Amendment." (People
v. Needham (2000) 79 Cal.App.4th 260, 267.)
Probable
cause exists when "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.)
Determining the existence of probable cause requires a practical,
commonsense judgment based on the totality of the circumstances, including the
veracity, reliability and basis of knowledge of an informant. (Id.
at pp. 238-239.) Assessing an
informant's veracity, reliability, and basis of knowledge does not involve the
application of a rigid formula. A strong
showing in one area may compensate for a deficiency in another. (Id. at
p. 233.)
According
to Rubio, the informant in this case was a citizen informant. Absent some information casting doubt on
their information, citizen informants are considered reliable. (People
v. Ramey (1976) 16 Cal.3d 263, 268-269.)
Rubio did not rely on this presumption, however, for probable cause to
search DelReal's vehicle. Instead, Rubio
independently verified the informant's information, including DelReal's name,
address, vehicle, and use of a magnetic pouch placed in his vehicle's wheel well. The only information from the informant Rubio
did not and could not verify in advance was the contents of the magnetic
pouch. Verification of these details
indicated the informant's other information about DelReal's narcotics
involvement was also true. (
As DelReal
points out, much of the information Rubio verified consisted of
"pedestrian facts." "For
corroboration to be adequate, it must pertain to the alleged criminal activity;
accuracy of information regarding the suspect generally is insufficient. [Citation.]
Courts take a dim view of the significance of 'pedestrian facts' such as
a suspect's physical description, his residence and his vehicles. [Citation.]
However, the corroboration is
sufficient if police investigation has uncovered probative indications of
criminal activity along the lines suggested by the informant. [Citation.] Even observations of seemingly
innocent activity provide sufficient corroboration if the anonymous tip casts
the activity in a suspicious light.
[Citations.]" [Citation.]'
" (People v. French (2011) 201 Cal.App.4th 1307, 1319-1320, italics
added.) Rubio's verification of
DelReal's use of a magnetic pouch in his vehicle's wheel well was a probative
indication DelReal was, in fact, involved in narcotics trafficking. Accordingly, we conclude the informant's
information coupled with Rubio's firsthand observations provided probable cause
for Rubio to search the vehicle's wheel well and the magnetic pouch.
B
Inventory Search
Exception
Another
well-defined exception to the warrant requirement is an inventory search. (Colorado
v. Bertine (1987) 479 U.S. 367, 371; Torres,
supra, 188 Cal.App.4th at
p. 787.) Under this exception, an
inventory search of a lawfully impounded vehicle and of containers found in the
vehicle is constitutionally reasonable as long as the search is conducted
according to standard criteria or established routine and is based on something
other than suspicion of evidence of criminal
activity. (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376;
v. Wells (1990) 495 U.S. 1, 3-5.)
The search "must not be a ruse for a general rummaging in order to
discover incriminating evidence." (
In
determining whether an inventory search was constitutionally valid, California
courts " 'focus on the purpose of the impound rather than the purpose of
the inventory.' [Citation.] '[A]n inventory search conducted pursuant to
an unreasonable impound is itself unreasonable.' " (Torres,
impounding of the vehicle searched did not serve a community caretaking
function and instead was a pretext for conducting an investigatory search
without probable cause. (
Giving
deference to the trial court's factual findings as we must, we conclude there
is substantial evidence in the record to support a finding Power's decision to
impound DelReal's vehicle was not merely a ruse for conducting an improper
investigatory search. Although Power
knew detectives suspected DelReal was transporting narcotics before he stopped
DelReal's car, the record shows Power decided to impound DelReal's vehicle
before detectives reached the scene. The
record also shows Power made the decision only after DelReal was unable to
produce a valid driver's license and a computer check indicated his license had
expired.
In
addition, the impound was authorized under Vehicle Code section 14602.6,
subdivision (a)(1). (
Such impounds serve a community caretaking function as their primary
purpose is to protect the lives and property of other people from the harm
caused by unlicensed drivers. (
(2010) 186 Cal.App.4th 198, 206.)
The record
further shows the San Diego Police Department has standardized procedures
requiring inventory searches of any part of a vehicle that could contain
anything dangerous or illegal prior to the vehicle's impound. Moreover, based on his training and
experience, Rubio had an established, general practice of searching wheel wells
as part of the inventory searches he conducts.
Searches of wheel wells are not expressly prohibited by the department's
standardized procedures and fall within their broad scope. Accordingly, we conclude DelReal has not
established the inventory search of his vehicle was
is distinguishable. Unlike here, the
officer in that case admitted he decided to impound the vehicle to facilitate
an inventory search to look for whatever narcotics-related evidence might be in
the vehicle. (Id. at p. 781.)
C
Search Incident
to Arrest Exception
Given our
conclusion officers had probable cause to search DelReal's vehicle and the
magnetic pouch, and our alternative conclusion that officers conducted a lawful
inventory search of the vehicle and pouch, we need not address DelReal's
contention that the officers did not lawfully search the vehicle and pouch
incident to his arrest. We also need not
address his contention his trial defense counsel provided ineffective
assistance by failing to cite recent
States Supreme Court authority in support of his position on this issue.
II
Review of Search
Warrant Affidavit
Before
trial, at DelReal's request and with the People's agreement, the trial court
inspected the warrant for the search of DelReal's home to determine whether the
affidavit supporting it was properly sealed and whether the affidavit contained
information indicating the confidential informant was a material witness whose
nondisclosure would deprive DelReal of a fair trial. After conducting an in camera review of the
warrant, the trial court found the search warrant was properly sealed and it
contained no information that had to be disclosed for DelReal to obtain a fair
trial.
DelReal's
request for the trial court's review was prompted in part by his suspicion the
informant was not an anonymous citizen, but a known person with a then pending
criminal case whose name appeared on a credit card found in a safe in DelReal's
home along with drugs. The trial court's
review did not assuage his suspicions and he requests we independently review
the sealed materials "to determine whether there was in fact any information
that should have been disclosed to [DelReal] or his counsel that would
establish the informant's personal knowledge of [DelReal's] activities or
whether law enforcement officers may have mislead [sic] the court as to their claim that the informant was a 'citizen
informant.' "
The People
concede DelReal is entitled to have us independently review the sealed
materials under People v. Hobbs
(1994) 7 Cal.4th 948. However, the
People argue we must limit our review to the "issue of whether the
informant is a material witness as to guilt or innocence such that
nondisclosure of the informant's identity would deprive [DelReal] of a fair
trial." We agree with DelReal that
the People's argument is largely semantic and, in any event, the scope of our
review on appeal is necessarily framed by the scope of review below.
Therefore,
like the trial court, we reviewed the search warrant to determine whether the
affidavit supporting it was properly sealed and whether the affidavit contained
information that should have been disclosed to DelReal. Also like the trial court, we conclude the
affidavit was properly sealed and contained no information that had to be
disclosed for DelReal to obtain a fair trial.
DISPOSITION
The judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
HALLER, J.
IRION, J.
name="_ftn1" title="">[1] Further statutory references are also to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] Effective January 1, 2012, former section 12020, subdivision
(a)(1), was repealed and reenacted without substantive change as section
33215. (Stats. 2010, ch. 711, § 4
[repealed]; Stats. 2010, ch. 711, § 6 [reenacted].)
