Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06CF1838, Gary S. Paer, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis, Randall D. Einhorn and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant was convicted of possessing for sale various drugs that were found at his home during a search pursuant to warrant. He contends reversal is required because the search warrant materials were not timely filed with the court, and the police failed to read him his Miranda rights before questioning him at the scene. (See Miranda v. Arizona (1966) 384 U.S. 436.) Finding no basis to disturb the judgment, we affirm.
FACTS
In June 2006, appellant was living in a Santa Ana house with relatives, including his nephew Aurelio Saldivar. Saldivar was a homicide suspect, and on June 8, the police staked out the house, hoping to find him there. What they saw instead was a parade of foot and vehicle traffic that was consistent with drug activity. Two days later, on June 10, the police obtained a warrant to search the house for evidence of drug sales.
On June 12, the police conducted further surveillance at the house. Again, they observed a high volume of traffic there. People would pull up to the house, go inside for a few minutes and then leave. At about 7:30 p.m., Saldivar arrived. He was arrested outside the residence and found to be in possession of 8.9 grams of marijuana.
A few hours later, just after midnight on the 13th, the police executed the search warrant. Appellant was home at the time, as was his mother and sister. The police discovered a digital scale and “pay/owe” sheets in the kitchen, and in the sister’s room, they found syringes and small amounts of heroin, cocaine and methamphetamine. A search of appellant’s bedroom turned up three baggies of marijuana, a methamphetamine pipe, a digital scale and $433 in cash. Outside his window, there was another bag of marijuana and .63 grams of heroin.
Following the search, Detective Mike Monjarez contacted appellant in the living room for questioning. Appellant was sitting on a sofa, in the presence of other family members. He was not handcuffed or physically restrained in any manner, and Monjarez told him he was not under arrest. Other officers were milling about in the area, but Monjarez was the only person who questioned appellant. He first asked appellant about the people he had seen coming to the house, and appellant said they were just his friends. Then he asked appellant about the drugs that were found in and near his room, and appellant said he knew nothing about them. When Monjarez asked him about work, appellant said he dabbled in the car auction business but was otherwise unemployed. At that point, Monjarez ended the interview.
After the trial court denied appellant’s motion to suppress the contraband found at his house, a jury found him guilty of possessing heroin and marijuana for sale. The court then sentenced him to three years of formal probation.
I
Appellant contends the search warrant materials were not filed with the court in a timely manner, and therefore the court should have granted his motion to suppress the fruits of the search. We disagree.
As noted above, the warrant issued on June 10, 2006, and was executed three days later on the June 13. The record further shows that the return to the warrant was signed by the magistrate on June 30, 2006. That same day, at the prosecution’s behest, the magistrate ordered the warrant materials, including the affidavit, warrant and return, to be sealed. Those documents were then filed with the clerk of court.
On January 29, 2007, the court granted appellant’s motion to unseal the warrant materials. Appellant then filed a motion to quash the warrant. He argued that because the police retained the warrant materials from the time the warrant was issued on June 10 until the time it was filed with the court on June 30, the police were “completely unrestrained . . . to change and/or alter the probable cause statement to better accurately reflect what they discovered after the fact, instead of what they presented to the magistrate before the fact to get the search warrant signed in the first place.” While not alleging that any such alteration actually occurred, appellant claimed that “[n]o confidence in the authenticity of the warrant documents exists for any adequate review [to ensure] that the documents comprising the affidavit are the same documents the issuing magistrate actually reviewed.” Appellant argued the failure to maintain an adequate record for review violated his due process rights and compelled suppression of the evidence discovered during the search.
At the motion hearing, the prosecutor stated “as far as I know from the records, when the court unsealed the warrant, everything was there. It was all original, the return was there, the affidavit was there, the warrant was there.” The prosecutor argued the magistrate’s failure to ensure the warrant documents were filed at the time of the warrant’s issuance was immaterial under the circumstances presented.
The trial judge agreed. He said “the best practice . . . would be for the [original warrant materials] not to leave the courthouse. But under the facts and circumstances of this case, I don’t view it as fatal.” Characterizing the officers’ retention of the warrant materials as a “procedural” issue, the judge determined it did not justify a dismissal of the charges. He therefore denied appellant’s motion to suppress.
Relying on the recurring and ongoing case of People v. Galland, appellant contends the court erred in denying his motion. In that case, the trial judge failed to review a sealed portion of a search warrant affidavit in ruling on Galland’s motion to quash. On appeal, this court found that failure to be a clear abuse of discretion and remanded the matter with orders for the judge to review the sealed information. (People v. Galland (2004) 116 Cal.App.4th 489, 492-496 (Galland I).)
There was a problem, however. At the time the judge granted the prosecution’s sealing motion, it ordered the sealed portion of the warrant to be secured in the police property room. (Galland I, supra, 116 Cal.App.4th at p. 491.) But that portion of the warrant was destroyed before the judge had the chance to review it pursuant to the remand order. (People v. Galland, review granted Apr. 18, 2007, S149890 (Galland II).) To complicate matters, new information in the affidavit surfaced when the judge conducted its review. (Ibid.) Nevertheless, the court denied Galland’s motion to quash the warrant. (Ibid.)
We mention Galland II only for the purpose of explaining the subsequent history of Galland I. Galland II, of course, has no precedential value in light of the Supreme Court’s decision to review it.
Again, Galland appealed, and again, this court took issue with the trial judge’s handling of the case: “From the issuance of the search warrant to its review and authentification [sic] of documents purportedly supporting the issuance of the warrant, the trial court failed to preserve a record adequate for appellate review. We have no confidence in the authenticity of the warrant affidavit included in the appellate record, or that the documents comprising the affidavit are the same documents the issuing magistrate actually reviewed. The trial court’s failure to maintain a record adequate for appellate review violated state and federal Constitutional provisions, state statutory provisions governing search warrants, and state statutory provisions governing the retention and destruction of court documents. . . . [T]he court’s failure to perform this basic obligation deprived Galland of due process of law,” mandating a reversal of the judgment. (Galland II, supra, at p. ___.)
There are two reasons why this holding is not controlling in the present case. First and foremost, the Supreme Court has granted review of Galland II, and therefore that decision has no precedential value. (See Cal. Rules of Ct., rules 8.1105(e)(1), 8.1115(a).) Second, unlike that case, there is no indication here that any information pertaining to the warrant process was destroyed or misplaced. Appellant speculates the police may have altered the warrant affidavit before they returned it to the court, but there is no evidence to suggest that occurred.
In People v. Martinez (2005) 132 Cal.App.4th 233, we faulted the trial judge for returning sealed documents to the police after reviewing them in connection with the defendant’s motion to quash. (Id. at pp. 239-240.) However, this miscue did not affect the defendant’s rights because the authenticity of those documents was not in question. (Id. at pp. 239-242.) In other words, the integrity of the process was not presumed to be tainted just because the police had physical control over some of the information pertaining to the warrant. As in Martinez, we have no reason to question the authenticity of the warrant materials in this case. The fact they were in police hands for 20 days after the warrant was issued does not, by itself, entitle appellant to relief.
In arguing otherwise, appellant relies on Penal Code section 1541, which states, “The magistrate must annex the affidavit, or affidavits, the search warrant and return, and the inventory, and if he has not power to inquire into the offense in respect to which the warrant was issued, he must at once file such warrant and return and such affidavit, or affidavits, and inventory with the clerk of the court having power to so inquire.” Appellant asserts this provision required the magistrate in this case to file all of the warrant materials at the time it issued the warrant. However, the provision’s reference to the return and inventory indicates it is a mandate for magistrates to file the warrant materials after the warrant is executed and returned to the court. And that is just what the magistrate did here; there was no violation of Penal Code section 1541.
Granted, the officers were tardy with respect to returning the warrant materials in the first place. (See Pen. Code, § 1534, subd. (a) [“A search warrant shall be executed and returned within 10 days after date of issuance.”]; Pen. Code, § 1537 [“The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken”].) However, “[w]ith the passage of Proposition 8, we are not free to exclude evidence merely because it was obtained in violation of some state statute or state constitutional provision.” (People v. McKay (2002) 27 Cal.4th 601, 608.) Suppression is mandated only when the statutory violation results in a violation of the Fourth Amendment. (People v. Head (1994) 30 Cal.App.4th 954, 958.) And “[n]o California case has yet held that a late or otherwise faulty return [of a warrant] violates the Fourth Amendment.” (Ibid.)
This case will not be the first. Appellant argues the delay in returning and filing the search warrant materials violated his Fourth Amendment and due process rights because it denied him the opportunity for meaningful review of the magistrate’s decision to issue the warrant in the first place. However, that is rank speculation. As we’ve stated, there is no evidence the officers tampered with the warrant materials while they were in their possession, and we are not prepared to hold the mere possibility of tampering is sufficient to invoke a remedy as severe as the exclusionary rule. No doubt the warrant process would be best served if, at the time of issuance, the magistrate retains the original search warrant and supporting affidavit. (See Pen. Code, § 1528, subd. (b) [authorizing the police to use a “duplicate original warrant” when executing a search warrant].) But in this case, we do not believe the magistrate’s failure to do so amounted to a violation of the Fourth Amendment or due process. Accordingly, the trial court properly denied appellant’s motion to suppress.
II
Appellant also contends his statements to Detective Monjarez were inadmissible because Monjarez did not read him his Miranda rights before questioning. Again, we disagree.
“Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Whether a suspect is in custody is resolved by asking whether the circumstances “created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Factors bearing on the custody issue include 1) whether the suspect was formally arrested before questioning; 2) the length of his detention; 3) where it occurred; 4) the ratio of officers to suspects; and 5) the demeanor of the officers. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404 .)
Appellant was not under arrest when Monjarez interviewed him, and Monjarez made that clear to appellant before the questioning began. While other officers were in the area, Monjarez was the only one focusing on appellant, who was in the confines of his own living room, surrounded by relatives. Monjarez did not inform appellant he could end the interview at any time, but he never told him he was a suspect, either. He asked appellant but a few questions, and there is no evidence his manner was aggressive or accusatory. He did ask appellant about the drugs that were found in and around his room, but when appellant denied knowing about them, he basically left it at that, ending the interview moments later. From all appearances, Monjarez conducted the interview in a professional, straightforward manner.
Monjarez did testify that, in his mind, appellant was not free to leave the house during the interview. However, “[t]he test for custody does not depend on the subjective view of the interrogating officer[.]” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) Because appellant never actually tried to leave the scene, there was no need for Monjarez to restrict his movement in any fashion. Therefore, Monjarez’s subjective intentions were irrelevant. (People v. Peevy (1998) 17 Cal.4th 1184, 1199.)
Moreover, even if appellant was not free to leave during the interview, that would not compel the conclusion he was in custody for Miranda purposes. Whether a suspect is free to leave during a police encounter is of central importance in deciding whether he has been seized under the Fourth Amendment. (See People v. Brendlin (2006) 38 Cal.4th 1107, 1115.) However, “[w]hether an individual has been . . . seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues. [Citation.]” (People v. Pilster, supra, 138 Cal.App.4th at p. 1405; see also People v. Brendlin, supra, 38 Cal.4th at p. 1117.) Indeed, it is entirely possible for a suspect to be seized for Fourth Amendment purposes, on the one hand, while remaining free of custody for Miranda purposes, on the other. (See, e.g., United States v. Swanson (6th Cir. 2003) 341 F.3d 524, 529.) Miranda, as we’ve noted, does not require suppression of a suspect’s statements unless his detention was so restrictive as to be tantamount to a formal arrest.
For the reasons explained above, we conclude appellant’s situation did not rise to that level. Accordingly, Miranda was not implicated and his statements were properly admitted into evidence. No error has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.