Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. BA314888 Anne H. Egerton, Judge
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Duane Brown appeals from the judgment entered after he had pleaded nolo contendere to possession of cocaine base while armed with a loaded firearm. (Health & Saf. Code, § 11370.1, subd. (a).) The trial court sentenced appellant to prison for four years, suspended execution of the sentence, and placed him on probation for three years.
Appellant contends that the trial court erroneously denied his motion to quash a search warrant and suppress the evidence found at his apartment pursuant to that warrant. He argues that the facts alleged in the supporting affidavit were insufficient to establish probable cause for the search. We affirm.
Background
The search warrant was issued on December 11, 2006, based on the affidavit of Deanna Pennix, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives of the United States Department of Justice. It was served two days later. Portions of the search warrant affidavit were sealed to conceal the identity of two informants. Pursuant to appellant's request, we have reviewed the transcripts of two in camera hearings relating to the sealing of the affidavit. The in camera hearings were conducted on October 31, 2007, and January 10, 2008. Nothing said during the in camera hearings detracts from the affidavit's showing of probable cause.
Summary of Unsealed Portions of the Search Warrant Affidavit
This summary is based on an edited version of the affidavit that was included in the record pursuant to appellant's motion to augment filed on April 29, 2009, and granted on May 8, 2009.
On September 27, 2006, informant number one told the affiant that appellant "is allegedly trafficking narcotics at 1358 South Burnside Avenue Apartment 10 and 1348 Burnside Avenue" in Los Angeles. "[M]ultiple times a day," the informant had seen appellant exit the 1358 South Burnside apartment building, walk "to a waiting individual on the street[,] and exchange[] an object for an unknown amount of U.S. currency." According to the informant, appellant worked "with two older men who act as lookouts." The older men "would walk up and down the street all throughout the day in order to detect law enforcement in the neighborhood." "[I]n order to complete narcotic transactions," appellant would sometimes walk from the 1358 South Burnside apartment building to a house at1348 South Burnside Avenue. On October 3, 2006, the informant told the affiant that, on the preceding Saturday, he/she had observed similar activities "with [appellant] meeting an individual out in front and conducting a hand to hand transaction, quickly returning to the inside of his apartment complex." On October 10, 2006, informant number two told the affiant "that he/she [had] seen [appellant] respond to foot and vehicle traffic by coming down from his apartment onto the street where hand to hand narcotic transactions would occur." On October 16, 2006, both informants told the affiant that, during the preceding week end, they had observed appellant engaging in "hand to hand" narcotics transactions in front of his apartment building. In addition, on an unspecified date, both informants said that, during the week of September 18, 2006, they had "observed a silver object resembling a pistol being transferred from [appellant] to another individual in the front window of the apartment complex."
The affiant verified that appellant resided at 1358 South Burnside Avenue, apartment 10. The affiant "discovered that [appellant] is a documented Rollin 40's Crip gang member with numerous arrests and convictions for possession of narcotics and possession of a firearm by a felon." The affiant also discovered that the person who resided at the house at 1348 South Burnside Avenue had "arrests for possession of narcotics for sale and one felony conviction."
On November 1, 2006, the affiant conducted a surveillance of the two locations. The surveillance confirmed that appellant was engaging in the suspicious activities witnessed by the informants. On one occasion the affiant "observed [appellant] leave the front window [of his apartment] and walk outside where he made contact with an individual. Both [appellant] and the individual entered Brown's apartment complex and exited in approximately three minutes." During a one hour period the affiant saw "three individuals either walk up to the complex and whistle up towards the front window or pull up to the apartment in a vehicle and honk the horn. [The] affiant also heard one individual ask if 'Duane' [appellant's first name] was around." Before each of these three persons approached appellant's apartment building, "they continuously looked back and forth in a nervous manner as if attempting to detect any law enforcement presence." In addition, the affiant observed a person drive to 1348 South Burnside Avenue, park the vehicle, enter the house at that address, and exit a few minutes later.
On November 9, 2006, the affiant conducted a second surveillance and observed similar suspicious activities. On November 13, 2006, informant number one told the affiant that he/she had "observed a lot of foot traffic and car traffic occurring at 1348 South Burnside." Persons would "get out of taxicabs and walk up to the door of 1348 South Burnside and quickly reenter the taxicab and drive away." On November 21, 2006, informant number one said that he/she had seen appellant's vehicle parked in the driveway of the house at 1348 South Burnside. The informant had also seen appellant "walk from the rear of 1348 South Burnside numerous times and interact with individuals parked out in front of 1348 South Burnside Avenue...."
The affiant conducted a final surveillance on December 4, 2006. She "observed three individuals enter inside [appellant's] apartment complex and come out in less than two to three minutes." When they exited the complex, two of the individuals were "cupping one of their hands."
Based on the totality of the circumstances, the affiant opined "that narcotics are being sold at 1348 South Burnside Avenue and 1358 South Burside Avenue Apartment #10." The affiant had "participated in numerous undercover operations where [she had] observed transactions of narcotics and firearms." She had "spoken to informants and narcotics officers regarding the manner in which narcotics transactions are commonly carried out... as well as the behavioral patterns of a narcotics seller and purchaser."
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.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
"As to the sufficiency of the affidavits, 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." [Citation.]' [Citation.] 'Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed... and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner.... [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 989.)
Discussion
Appellant contends that the search warrant affidavit is insufficient to establish probable cause because "the information received from the two 'sources of information' as to alleged 'narcotics transactions' was not factual but conclusionary, neither reporting that they had ever observed narcotics actually being sold by appellant, much less that they had purchased drugs from him." Based on Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, appellant argues that the informants' conclusionary allegations, together with their "observations of heavy foot traffic in front of and into appellant's apartment building... and seeing appellant sometimes exiting the building to interact with persons in front... did not establish probable cause."
In Bailey an anonymous citizen told a police officer that the defendant "was dealing rock cocaine" at the defendant's apartment. (Bailey v. Superior Court, supra, 11 Cal.App.4th at p. 1110.) "The citizen informed the officer that 'he/she' had seen heavy foot traffic in and out of the apartment." (Ibid.) A second citizen informant told the affiant that he/she had observed similar heavy foot traffic at appellant's apartment. The persons who entered the apartment would stay inside for approximately two to three minutes and then leave. The second informant said that he/she believed "narcotics are being sold at the apartment because of watching television shows and being told by friends that this is how narcotics are purchased." (Ibid.) The affiant "declared that people entering apartment complexes who stay for only a few minutes are often purchasing narcotics...." The affiant's "investigation merely confirmed that [the defendant] lived at the address in question." (Id., at p. 1112.)
In Bailey this court concluded that the facts set forth in the affidavit were insufficient to establish probable cause for a search of the defendant's apartment. We reasoned: "The only activity witnessed by either informant was 'heavy foot traffic.' But, without corroboration or the consideration of some relevant factor, heavy foot traffic may just as likely reflect that the suspect is engaged in innocent activity, such as selling soap or cosmetics. In such instances, it is the policeman's lot... to smother his feeling that a suspect is occupied in crime, and to do his duty of gathering further evidence before applying for a search warrant. [¶] Independent police work here did not corroborate any suspicious activity...." (Bailey v. Superior Court, supra, 11 Cal.App.4th at p. 1113.) "The officers could have conducted surveillance to confirm the suspected activities," but they did not do so. (Id., at p. 1114.)
Appellant's reliance on Bailey is misplaced. Here the informants did not just observe heavy foot traffic. They observed hand-to-hand transactions with appellant "exchang[ing] an object for an unknown amount of U.S. currency." They also observed men appearing to act as lookouts for law enforcement. In addition, they saw appellant pass what appeared to be a revolver through the front window of his apartment complex.
Unlike the affiant in Bailey, the affiant here did not just confirm that appellant lived at the apartment in question. She conducted the surveillance that the affiant in Bailey had omitted. Her surveillance confirmed the suspicious activity witnessed by the two informants.
The affiant also ran a criminal records check on appellant and discovered that he was a "gang member with numerous arrests and convictions for possession of narcotics and possession of a firearm by a felon." She also discovered that the person residing at the house at 1348 South Burnside Avenue had "arrests for possession of narcotics for sale and one felony conviction." "[A] suspect's narcotic arrest record always has been considered relevant to the magistrate's determination of probable cause. [Citations.]" (People v. Aho (1985) 166 Cal.App.3d 984, 992.)
Appellant contends that the information about his criminal history was "intentionally misleading because no dates were alleged and the record indicates that the two drug convictions occurred in 1990..., some 16 years before the search warrant affidavit was executed...." Nothing in the record, including the transcripts of the in camera hearings, indicates that the omission of the dates of the two drug convictions was "intentionally misleading." The important point was that appellant had previously been involved in criminal drug activity. This factor made it less likely that appellant's present activities were for an innocent purpose.
The instant case is similar to People v. Kershaw (1983) 147 Cal.App.3d 750. In Kershaw an anonymous informant told the police that the defendant was selling cocaine. The informant claimed that his/her relative was "regularly purchasing cocaine from the defendant." (Id., at p. 753) The police conducted a surveillance and observed "an unusual amount of traffic to and from defendant's home." (Ibid.) "Further investigation... disclosed defendant had been arrested in the previous year for possession of cocaine for sale and there was an outstanding arrest warrant for defendant on that same charge." (Ibid.) The Kershaw court held that probable cause for the issuance of a search warrant was established by the information from the anonymous informant combined with the corroborating police surveillance, the defendant's narcotics arrest record, and the affiant's opinion that narcotics were being dealt from the defendant's residence. The court noted that "[f]requent brief visits to a residence by numerous persons is an indication of narcotic traffic. [Citations.]" (Id., at pp. 759.) The court considered the affiant's opinion to be a legitimate factor in determining probable cause because the affiant, like Special Agent Pennix in the instant case, was experienced in narcotics investigations: " 'It is fundamental that an officer's observations can give rise to probable cause [for a search]... if that officer had sufficient training and experience from which to draw the conclusions necessary to create a reasonable belief in the presence of contraband.' [Citations.]" (Id., at p. 760.)
Appellant contends that the information in the affidavit was "too stale to establish probable cause" because the search warrant was issued on December 11, 2006, "more than two months after the [initial] report from [informant number one] on September 27, 2006." "Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information 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. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale. [Citation.]" (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)
Here the circumstances would justify a person of ordinary prudence to conclude that appellant's drug trafficking continued through the issuance of the search warrant on December 11, 2006. The report from informant number one on September 27, 2006, was only the first indication of suspicious activity. Subsequent reports from both informants, together with the affiant's corroborating surveillance, "support[] the inference that the [drug trafficking] activity [was] ongoing [citation]." (People v. Hulland, supra, 110 Cal.App.4th at p. 1655.) Moreover, the activities observed by the affiant during her surveillance on December 4, 2006, indicated that drug trafficking was occurring on that date, only a week before the search warrant was issued. Accordingly, the information in the affidavit was not stale. (See People v. Medina (1985) 165 Cal.App.3d 11, 20-21.)
Conclusion
"We conclude that a review of the totality of the circumstances presented by the [search warrant affidavit] leads to this conclusion: a fair probability existed that evidence of an ongoing drug sales operation would be found at [appellant's apartment]. Our conclusion is strengthened when we apply the rule that doubtful or marginal cases are to be resolved with a preference for upholding a search under a warrant. [Citation.]" (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1719.)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.