Opinion
A100083.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS D. HAWKINS, Defendant and Appellant.
Appellant pleaded no contest to possession for sale of cocaine base. On appeal, he contends the trial court erred in denying his motion to suppress evidence because the search warrant obtained by police was unconstitutionally overbroad and the affidavit supporting the warrant did not establish probable cause to search appellants motel room. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with two counts of possession for sale of cocaine (Health & Saf. Code, § 11351—counts one and three), and one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5—count two). The information alleged that appellant had two prior convictions rendering him ineligible for probation (Pen. Code, § 1203.07, subd. (a)(11)), and had one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On December 21, 2001, appellant filed a motion, pursuant to section 1538.5, to suppress evidence obtained with an allegedly defective search warrant. On January 11, 2002, the trial court denied the motion.
On January 14, 2002, appellant pleaded no contest to count two, possession for sale of cocaine base, in exchange for a four-year prison term. The other two counts were dismissed, and the two prior convictions were stricken for sentencing purposes. As a condition of receiving the four-year sentence, appellant agreed, pursuant to a Cruz waiver, that he would report to the probation department, appear for sentencing, and not commit any new crimes before sentencing.
People v. Cruz, (1988) 44 Cal.3d 1247, 1254, fn. 5.
Appellant failed to report to the probation department, he failed to appear for sentencing, and he was arrested for a new drug offense before sentencing. On, July 12, 2002, the trial court sentenced him to the aggravated term of five years in state prison.
Appellant filed a notice of appeal on September 5, 2002.
FACTUAL BACKGROUND
These facts are taken from the preliminary hearing transcript.
On June 12, 2001, Oakland Police Officer William Bergeron and other officers began conducting surveillance of appellant in north Oakland, after receiving information that appellant was a drug dealer. That day, Bergeron observed appellant drive from his home on 62nd Street to another location, where he got out of his car, walked three blocks, looked around, and returned to his car. Appellant then got into his car and returned to his home.
The next day, June 13, Bergeron observed appellant drive away from his home after 5 p.m., and the surveillance team followed him to the same location he had walked to the day before. After parking his car, appellant walked to the corner of an apartment building, where he picked up a paper bag that was on the ground. He reached inside the bag, appeared to remove an object, and then returned the bag to the same spot before getting into his car and driving away. After leaving the apartment building, appellant picked up a female passenger; they drove to the Broadway Motel and checked into room 109.
Oakland Police Officer Marco Rodriguez checked the contents of the paper bag, which contained what appeared to be powder cocaine. The parties stipulated that the bag contained 171 grams of cocaine, which Oakland Police Officer Eric Richholt, a narcotics expert, opined was held for sale.
On June 29, 2001, a magistrate issued a search warrant, authorizing a search of room 121 and any other room that was registered to appellant at the Broadway Motel at the time the warrant was served.
On July 1, 2001, at approximately 11:30 a.m., Officer Bergeron observed appellant go to the Broadway Motel and enter room 114. When appellant left the motel and returned to his car, officers arrested him and searched him, finding $186, two small bags of marijuana, and a key to room 114. The officers confirmed with motel management that room 114 was registered to appellant, and then searched the room. During the search of room 114, officers found, inter alia, one bag of suspected cocaine powder and 23 pieces of suspected cocaine base. It was stipulated that officers seized 8.24 grams of cocaine and 24.54 grams of cocaine base, both of which Officer Richholt opined were held for sale.
The officers later searched appellants house, where they found approximately $5,200 in appellants bedroom, as well as over $5,000, a pistol, and ammunition in his mothers bedroom.
DISCUSSION
Appellant contends the search warrant was defective because it was overbroad and there was no showing of probable cause to search room 114 of the Broadway Motel.
I. Trial Court Background
In an "Affidavit for Search Warrant," signed on June 29, 2001, Officer Bergeron stated there was probable cause to believe that cocaine and related items would be found at appellants home and in room 121 of the Broadway Motel located at 4140 Broadway in Oakland "and in any other room at the Broadway Motel, 4140 Broadway, Oakland, Ca, that is registered to Carlos Hawkins . . . at the time of this search warrant." That same day, a magistrate issued a search warrant authorizing the police to search room 121 "and any other room at the Broadway Motel, 4140 Broadway, Oakland, Ca, that is registered to Carlos Hawkins . . . at the time of service of this search warrant."
On July 1, 2001, police officers searched room 114 of the Broadway Motel, after finding a key to that room in appellants pocket and after verifying with motel management that the room was registered to appellant. Officers found cocaine and related items in room 114.
The trial court denied appellants subsequent motion to suppress, explaining: "[T]heres no question theyve limited it to a [building], and therefore I think your motion fails for that reason. Certainly in light of what was being done here, it would fail on the good faith exception. They have limited as much as they can. They continue to do so. Youve talked about a second step [i.e., going back to the magistrate with the new room number], but the reality is that this was to them a logical, efficient way. And the judge who signed it Im not going to find an illegality although clearly youve grasped a meaningful issue thats existed since we wrote the Constitution. [¶] Nevertheless, on both those grounds 1538.5 is denied for both those reasons, either of which would be enough."
II. Legal Background
"Both the United States Constitution and the Constitution and statutory law of California require that a search warrant describe with particularity the place to be searched. [Citations.] Whether this requirement is met is a question of law on which an appellate court makes an independent judgment. [Citation.] As a general rule, the requirement is satisfied if `the officer conducting the search "can with reasonable effort ascertain and identify the place intended." [Citations.]" (People v. MacAvoy, (1984) 162 Cal.App.3d 746, 753-754.)
To justify issuance of a warrant, "[t]here must be probable cause to believe that the material sought to be seized will be on the premises to be searched when the warrant is served." (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) 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.) A magistrates probable cause determination is entitled to great deference on appeal. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564, citing Illinois v. Gates, supra, 462 U.S. at p. 236.)
III. Analysis
Appellant argues that the search warrant failed to "describe with particularity the place to be searched" (People v. MacAvoy, supra, 162 Cal.App.3d at pp. 753-754) when it stated that police could search any room at the Broadway Motel "that is registered to Carlos Hawkins . . . at the time of service of this search warrant." We disagree.
In People v. Estrada (1965) 234 Cal.App.2d 136, 148, Division One of this District articulated a rule for testing the specificity of a search warrant directed to premises with multiple occupants: "If the description in the warrant limits the search to a particular part of the premises either by a designation of the area or other physical characteristics of such part or by a designation of its occupants, the business conducted there, or otherwise so that the officer executing the warrant can with reasonable effort identify the place to be searched, the warrant will meet Fourth Amendment requirements in respect to the description of the place to be searched. In our opinion if measured by the same test it will also meet the corresponding California constitutional and statutory requirements."
On the other hand, the Estrada court also explained, "when a warrant directs a search of a multiple occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand." (People v. Estrada, supra, 234 Cal.App.2d at p. 146.)
In the present case, there was reason to believe, based on police surveillance, that appellant was using whichever room he was occupying at the Broadway Motel to conduct a drug operation. (See Illinois v. Gates, supra, 462 U.S. at p. 238.) The affidavit in support of the search warrant provided information that on June 13, 2001, police had seen appellant retrieve something from a paper bag that contained over six ounces of cocaine. Appellant later registered at the Broadway Motel and, on June 14, 2001, was seen coming and going from room 109 several times in a two-hour period. On approximately June 28, 2001, appellant was observed going directly from room 121 at the motel to a prearranged location where he sold cocaine to a confidential informant; his car was observed shortly after the sale in the motels parking lot. Thus, the search warrant was supported by probable cause.
There also was reason to believe that appellant was changing rooms frequently at the motel. On June 13 and 14, he was seen frequently entering and leaving room 109; then on June 28, he was seen leaving room 121 and going to sell drugs to a confidential informant. The search warrant was issued on June 29, and on July 1, when the warrant was served, appellant was found to be registered in room 114 of the motel. At the time the warrant was issued, the magistrate had grounds to believe that appellant might easily have changed rooms yet again between June 29 and service of the warrant a few days later (which in fact turned out to be the case).
In light of the information regarding appellants use of various rooms at the Broadway Motel, it would have been impracticable for the police to return to the magistrate every time appellant changed rooms to try to obtain and serve a new search warrant before appellant changed rooms yet again. (Cf. United States v. Kow (9th Cir. 1995) 58 F.3d 423, 427 [generic classifications in a search warrant are acceptable only when more precise description is not possible].) Moreover, the description in the warrant was enough to pinpoint the particular place to be searched. The search warrant did not, as appellant argues, permit the police to search the entire motel for evidence of appellants drug operation. On the contrary, the search warrant limited the search to the room or rooms at the motel that were registered to appellant when the warrant was served. (See People v. Estrada, supra, 234 Cal.App.2d at p. 146 [particularity "`requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched" (italics in original)].)
The cases appellant cites in support of his argument that the search warrant in this case was defective are inapposite. For example, in People v. MacAvoy, supra, 162 Cal.App.3d 746, 752, police, alerted by postal authorities, arranged a controlled delivery of a package of hashish to the defendant at his multi-unit fraternity house. Police also secured a search warrant for the fraternity house. (Ibid .) A panel of this Division held that the search warrant failed to adequately describe the place to be searched because it authorized a search of the entire fraternity house even though probable cause existed only to search the defendants room. (Id. at p. 753.)
In United States v. Kow, supra, 58 F.3d 425-427, a search warrant authorized the seizure of virtually every document and computer file at a business that was suspected of fraudulent activities. The Ninth Circuit held that in light of the warrants failure to describe with particularity the items to be seized, the warrant was "indistinguishable form the general warrants repeatedly held by this court to be unconstitutional. [Citations.]" (Id. at p. 427; see also Warden v. Hayden (1966) 387 U.S. 294, 313, dis. opn. of Douglas, J. [citing as an early example of a general warrant, practice used by star chamber that empowered "a person `to search in all places, where books were printing, in order to see if the printer had a license; and if upon such search he found any books which he suspected to be libelous against the church or state, he was to seize them, and carry them before the proper magistrate. [Citation.]"].)
Here, unlike in the cases cited by appellant, the search warrant identified both the building to be searched (the Broadway Motel) and the specific person whose room could be searched (appellant). The warrant thus described with sufficient particularity the place to be searched since "`the officer conducting the search "[could] with reasonable effort ascertain and identify the place intended." [Citations.]" (People v. MacAvoy, supra, 162 Cal.App.3d at p. 754; see also People v. Estrada, supra, 234 Cal.App.2d at p. 146.)
Accordingly, we conclude there was probable cause to believe there would be cocaine in any room registered to appellant at the Broadway Motel and the search warrant described with sufficient particularity the place to be searched. (See People v. Estrada, supra, 234 Cal.App.2d at pp. 146, 148.)
DISPOSITION
The judgment is affirmed.
Haerle, J., and Lambden, J. We concur.