Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. MA030987 Carol Koppel, Judge
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Donald D. Hemme.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Leslie D. Reader.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellants Donald D. Hemme and Leslie D. Reader appeal from the denial of their suppression motions. Appellants were each charged with one count of felony possession for sale of a controlled substance within the meaning of Health and Safety Code, section 11378. (Count one.)
Appellants each pleaded not guilty, and filed motions to suppress evidence seized from their motor home pursuant to a warrant. Appellant Reader also filed a motion to quash the warrant. (Pen. Code, § 1538.5.) The motions were denied. Appellants subsequently withdrew their pleas and entered guilty pleas to a second count of felony possession of controlled substance (Health & Saf. Code, § 11377, subd. (a)) that was added to the information by amendment. Count one was dismissed. The trial court suspended imposition of sentence and placed each appellant on formal probation for three years.
Appellants contend that the search of their motor home exceeded the permissible scope of the warrant and that the warrant itself was overbroad. They also contend that the trial court erred because it did not hear testimonial evidence at the suppression hearing. We conclude the suppression motions and motion to quash were properly denied, and we affirm.
BACKGROUND
On February 3, 2005, at 10:00 a.m., Sheriff's Detective Robert Wagner and members of a narcotics team searched for methamphetamine and related materials at 42705 6th Street in Lancaster, pursuant to a warrant. The warrant authorized a search of a single story residence at that address, including "outbuildings of any kind thereon" and "any vehicles parked on the premises . . . provided that said vehicles can be specifically connected to an occupant or permanent resident of the location to be searched prior to searching said vehicles." At the preliminary hearing, Detective Wagner described the address as a five-acre parcel with a house at the front of the property, a motor home behind the main house, a travel trailer behind the motor home, another travel trailer, numerous storage containers and a large workshop.
The warrant was supported by the affidavit of Detective Wagner. The affidavit included information from a reliable confidential informant that Ronald Hemme (appellant Donald Hemme's twin brother) was selling methamphetamine from his residence at 42705 6th Street. The informant had engaged in a controlled purchase of methamphetamine from Ronald at that address. The affidavit did not indicate whether the sale occurred in the single story residence or elsewhere on the property. Detective Wagner stated, "We watched the C.R.I. walk up to the side of the location where he/she disappeared from our sight. [¶] The C.R.I. stayed at the location for approximately ten minutes and left." The affidavit requested permission to search the premises and any outbuildings or vehicles. In the affidavit, Wagner stated that persons involved in narcotics activity frequently hide narcotics in vehicles to which they have access.
Prior to the search, deputies detained Ronald Hemme as he was leaving the premises. When asked who lived at the property, Ronald replied that appellants lived in the motor home behind the house, and that another man lived in the fifth wheel behind the shed.
During the search of the property, Leslie Reader answered the door of the motor home. She said that she and Donald Hemme were staying in the motor home. She said there was methamphetamine in a cupboard inside, and that it belonged to her. Deputies entered the motor home. Wagner found a plate with methamphetamine residue in the cupboard. He also found a red tube on the motor home's dashboard, containing 10.5 grams of methamphetamine and "pay and owe" notations. Reader said the red tube was not hers.
Appellant Donald Hemme was not present during the search. There was mail in the motor home that belonged to both Reader and Donald Hemme. Two digital scales were found in a nearby shed. Photographs of the motor home were taken.
At the hearing on the motions to suppress, the trial court considered the police report and photographs of the motor home. No oral testimony was presented. The court denied the motions to suppress, finding that the motor home was a vehicle that came within the scope of the warrant and within the vehicle exception to the warrant requirement. Based on the police report and photographs of the motor home the trial court found that "a motor home is certainly able to be moved at will," and "this is a motor home. It can be hooked up and driven down the street where they might be selling drugs again."
DISCUSSION
Standard of Review
We defer to the trial court's express and implied factual findings if they are supported by substantial evidence. We exercise our independent judgment in determining the legality of the search based on the facts so found. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
The Search Warrant Authorized Search of the Motor Home
The search warrant authorized a search of any vehicle on the premises, provided that it could first be connected to an occupant or permanent resident "of the location." There is substantial evidence to support the trial court's finding that the motor home was a vehicle, and to support the court's implied finding that it was connected to an occupant of the location. "As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable." (People v. Woods, supra, 21 Cal.4th 668, 673.) The court found the motor home was a readily moveable vehicle. Photographs of the motor home supported that finding. The photographs depicted inflated tires, no permanent fixtures, and an electrical hook up by extension cord. Defense counsel conceded the motor home was not resting on bricks or blocks. One photograph depicts a jack, but the court impliedly found that could be readily removed. Prior to the search, the deputies had information connecting the motor home to an occupant of the location. The confidential informant stated that Ronald Hemme had an identical twin brother named Donald. Before the search Ronald Hemme told officers that his "brother Donny . . . and his wife Leslie . . . live in the motor home behind the house . . . ." Thus, search of the motor home, a vehicle at the location connected to an occupant, was authorized by the warrant.
The Warrant Adequately Described the Place to be Searched and Was Not Overbroad
Appellants argue that the warrant's description of vehicles to be searched was overbroad because it included vehicles to which Ronald might not have access, that the affidavit did not provide probable cause to believe there was criminal activity associated with the vehicles, and that the terms "occupant," "permanent resident," and "access" should have been defined. We disagree.
The Fourth Amendment requires a warrant to sufficiently describe the place to be searched so that the officer executing the warrant may, with reasonable effort, ascertain and identify the place intended. (Steele v. United States (1925) 267 U.S. 498, 503.) "Complete precision in describing the place to be searched is not required." (People v. Amador (2000) 24 Cal.4th 387, 392.) In our case, the warrant sufficiently described the vehicles to be searched, and the deputies were readily able to ascertain the motor homes' connection to occupants of the location prior to the search. The warrant did not restrict the search to only those vehicles to which Ronald might have access. Probable cause supported the search of all vehicles at the location. In his affidavit, Detective Wagner described an ongoing narcotics enterprise at the address and explained the customary use of vehicles and outbuildings to hide narcotics.
Appellants contend that the deputies should have obtained a separate warrant once they learned the motor home was appellants' residence. "[T]he requirement of the Fourth Amendment that a particular 'place' be described in the warrant when applicable to dwellings means a single living unit, that is to say the residence of one person or family . . . ." (People v. Estrada (1965) 234 Cal.App.2d 136, 146.) A warrant directing a search of a multiple occupancy apartment building, without a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, is void. (Ibid.)
In People v. Sheehan (1972) 28 Cal.App.3d 21, search of a defendant's tent for marijuana pursuant to a warrant was illegal, where the warrant described a 315-acre ranch to be searched “together with all structures, tents, lean-tos, and campsites contained within." (Id. at p. 24.) The affidavit made no allegations concerning defendant or his tent. The affiant reported marijuana growing on the ranch, smoking of marijuana by two of 300 participants at a campfire, and the presence of marijuana in one of six other habitations that had been entered previously. In our case, only four persons resided on the five acre property, three of whom were family members, including appellants. The affidavit provided probable cause to believe that a methamphetamine sale operation was being conducted at the address, and that methamphetamine and related materials would be found in any outbuilding or vehicle to which the permanent residents or occupants had access. Substantial evidence supported the trial court's implied finding that the motor home was a vehicle to which occupants of the property had access.
Evidentiary Hearing
Appellants contend that the court erred by denying the motions without first hearing live testimony, citing People v. Johnson (2006) 38 Cal.4th 717, 725. In Johnson, the prosecution could not meet its burden at a suppression hearing to justify a warrantless search and seizure by presenting an affidavit of the investigating officer in lieu of the officer's live testimony. In our case, the prosecution did not have the burden of justifying a warrantless search. Pursuant to Evidence Code section 664, a search warrant is presumed to have been lawfully issued and executed. If a defendant moves to quash a search warrant, the burden rests upon the defendant. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101.) "[T]he burden of establishing the invalidity of a search warrant is upon the defendant." (People v. Wilson (1967) 256 Cal.App.2d 411, 417.)
Penal Code section 1538.5, subdivision (c)(1) provides that "[w]henever a search or seizure motion is made in the superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion." Section 1539, subdivision (a) provides, "If a special hearing is held in a felony case pursuant to Section 1538.5 . . ., the judge or magistrate shall proceed to take testimony in relation thereto . . . ." At the hearing in our case, appellants did not offer live witnesses. In the written notices of their motions to suppress, appellants stated that the motions would be based on argument, authorities, "such . . . evidence as may be presented" and ". . . evidence taken at the hearing . . . ." However, at the hearing, no live witness was identified and no testimony was offered. After the court announced its tentative, counsel for Donald Hemme argued, "I don't know how the court can, without taking any testimony, rule on the facts of the case underlying the motion." In response, the court referred to a Sheriff's Department Incident Report. The court did not expressly refuse to hear live testimony, and counsel did not follow up with any offer of additional evidence, other than photographs which the court did consider. The burden of establishing invalidity of the warrant or improper execution was on the appellants. (Evid. Code, § 664; People v. Wilson, supra, 256 Cal.App.2d at p. 417.)
The Motor Home Also Came Within the Vehicle Exception to the Warrant Requirement
Even if the search had not been conducted pursuant to warrant, substantial evidence would have supported the trial court's determination that the motor home was readily mobile, and thus came within the vehicle exception to the warrant requirement. "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." (Pennsylvania v. Labron (1996) 518 U.S. 938, 940.) In our case, a preponderance of the evidence showed that the motor home was readily mobile, and probable cause existed when, before the search, Leslie Reader admitted that there was methamphetamine inside the motor home.
Appellants point out that the trial court found that the motor home was being used as residence, in addition to being a readily mobile vehicle. "[A]pplication of the vehicle exception has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation." (People v. Carney (1985) 471 U.S. 386, 394.) "[T]o fail to apply the exception to vehicles such as a motor home ignores the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity." (Id. at pp. 393-394.)
In Carney, the vehicle exception to the warrant requirement applied to a motor home that possessed many attributes of a home, but was readily mobile, licensed to operate, and "so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle." (People v. Carney, supra, 471 U.S.at p. 393.) In dicta, the Court provided factors to consider when a motor home is used as a residence. "We need not pass on the application of the vehicle exception to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road." (Id. 394, fn. 3.) In our case, the trial court considered each of these factors and substantial evidence supported its conclusion that the motor home was a vehicle for purposes of the exception. Application of the vehicle exception to this motor home in the circumstances is supported by the exigencies created by the vehicle's ready mobility, and the decreased expectation of privacy that derives from regulation of vehicles that are capable of use on public highways.
For all of the foregoing reasons, the judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.