Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03182
ROBIE, J.
After pleading no contest to both counts, defendant Jamahl Hoskins was convicted of possession of methamphetamine for sale and possession of a firearm by a felon. On appeal, he challenges the trial court’s denial of his motion to suppress evidence. He contends the trial court erred because the affidavit in support of the search warrant did not give the officers probable cause to search the Elk Grove residence where the officers found a firearm. We disagree and affirm.
Defendant also contends the good faith exception to the exclusionary rule as set forth in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677] is inapplicable. We do not reach this issue because we conclude the affidavit in support of the search warrant gave the officers probable cause to search the Elk Grove residence.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2006, Sacramento County Sheriff’s Detective Marcus Gregory submitted an affidavit in support of a search warrant for defendant’s person, vehicle, and homes in Rancho Cordova and Elk Grove. Since the sufficiency of the affidavit is central to the determination of this case, we will summarize its essential contents below.
Detective Gregory, part of the Sacramento Area Intelligence Narcotics Task (SAINT) Force, had received extensive training in narcotics investigation since being sworn as a peace officer in 1995. The SAINT Force commenced a criminal investigation of defendant for drug trafficking. Defendant’s arrest history included, among other things, possession of narcotics for sale, possession of narcotics, and possession of a controlled substance for sale.
Since 2001, defendant’s registered address had been on Maxine Way in Rancho Cordova. He drove a black Cadillac. His previous address was listed as Blue Star Court in Rancho Cordova as of 1998. That address also listed Tiffany Marsh as a resident during that time.
During surveillance of defendant’s Maxine Way home, officers observed Marsh’s car on several occasions. Marsh’s car was parked in the driveway of the home on April 6, 2006, around 4:30 p.m. Around 6:00 p.m. that day, defendant arrived at the home in his Cadillac. Ten minutes later, Marsh left the house with two children and drove to a newly built Elk Grove home on Lotus Pond Way, where the utilities had been recently registered in Marsh’s name. Not long after, defendant came out of the Rancho Cordova house and pulled a blue van parked on the street into his driveway; the van was registered to Marsh. Defendant then left the house in his Cadillac and officers followed. The officers witnessed defendant do “a quick hand to hand transaction” in front of a house consistent with being a narcotics transaction.
On April 12, 2006, defendant arrived at his Maxine Way home about 8:50 p.m. and a van arrived just before 9:00 p.m. The van’s driver entered the home and then left, not staying more than a couple of minutes. Officers pulled the van over for a traffic code violation and conducted a search after they smelled a strong odor of marijuana coming from the van. A search of the van and the van’s driver located $2,000 in cash and a stolen, concealed, and loaded handgun. Among others, the driver had prior arrests for possessing a controlled substance for sale and transporting, selling, or furnishing a controlled substance. This information led the narcotics investigators to conclude the van’s driver “most likely had dropped off a quantity of narcotics” with defendant at the Maxine Way home. Detective Gregory also submitted a confidential attachment from an informant, the content of which is not apparent from the affidavit.
Later that night, around 10:30 p.m., officers saw defendant standing next to his Cadillac in the garage of the Lotus Pond Way home. The next morning, around 11:45 a.m., officers saw defendant leave the Lotus Pond Way garage in his Cadillac. Detective Gregory concluded that Marsh and defendant lived together and were in the process of moving to the Lotus Pond Way home. Based on this information, a magistrate issued a warrant to search defendant’s person, his vehicle, and the homes on Maxine Way and Lotus Pond Way.
A large amount of methamphetamine was found in the Maxine Way home while a search of the Lotus Pond Way home uncovered $15,000 cash in the nightstand next to the bed and, in the master bedroom safe, a .45-caliber handgun and papers bearing defendant’s name.
A November 2006 information charged defendant and Marsh with possession of methamphetamine for sale and charged defendant with possession of a firearm by a felon. Defendant moved to suppress the evidence seized from the Lotus Pond Way home because “[t]he facts in the affidavit never created a nexus between the Lotus Pond residence and the probability of evidence of drug possession or sales [being] found on the premises.” The trial court succinctly denied defendant’s motion, finding there was such a nexus. A jury trial commenced in June 2007, but defendant changed his plea to no contest shortly thereafter. He was sentenced to seven years in prison.
Marsh successfully moved for acquittal.
DISCUSSION
I
Standard Of Review
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
II
The Search Warrant Was Supported By Probable Cause Because The Information In The Affidavit Created A Fair Probability Defendant Was Moving To The Home On Lotus Pond Way
Defendant contends the affidavit did not give the officers probable cause to search the Lotus Pond Way home because “[t]he affidavit in support of the warrant only states that [defendant] was sighted there on two occasions -- April 12, 2006, at approximately 10:30 p.m. when [a detective] saw the garage door open and [defendant] was standing in the garage where [his] Cadillac was parked. And, on April 13, 2006, at approximately 11:45 a.m. when [a detective] saw [defendant] back [his] Cadillac out of the garage.” We disagree with defendant’s characterization of the affidavit and conclude the search of the Lotus Pond Way home was supported by probable cause.
“When an appellate court reviews the validity of a search warrant, ‘the magistrate’s determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[].’ [Citation.] ‘The magistrate’s determination of probable cause is entitled to deferential review.’ [Citation.] [¶] ‘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.” [Citation.] . . . .’
“[¶] . . . [¶]
“The affidavit must establish a nexus between the criminal activities and the place to be searched. [Citation.] ‘The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination.’ [Citation.] However, an affidavit based on mere suspicion or belief, or stating a conclusion with no supporting facts, is wholly insufficient. [Citation.] [¶] A sufficient nexus is established for the search of a residence when a target sells controlled substances from the residence. [Citation.] This is so whether or not the target is the owner or occupier of the residence. [Citations.] The right of access to the residence leads to a reasonable inference that the seller of controlled substances will store the controlled substances at the residence.” (People v. Garcia (2003) 111 Cal.App.4th 715, 720-721.)
Citing to Alexander v. Superior Court (1973) 9 Cal.3d 387 and People v. Hernandez (1994) 30 Cal.App.4th 919, defendant argues that there was not probable cause to search the Lotus Pond Way residence because “frequent visits from a known drug dealer fail to provide a connection between such visits and criminal activity” and “probable cause does not exist to search a residence merely because cars or individuals known to be linked to drug dealing are observed at the residence.” We conclude that this case is readily distinguishable from Alexander and Hernandez since,as we explain below, defendant ignores the facts in the affidavit which gave the issuing magistrate a substantial basis to conclude defendant and Marsh lived together and were in the process of moving to the Lotus Pond Way home.
Alexander involved the search of an apartment to which a drug dealer made frequent visits; the affidavit did not provide substantial evidence the dealer was moving to the apartment or was in a relationship with the person who lived in the apartment. (People v. Alexander, supra, 9 Cal.3d at p. 389.) In Alexander, a magistrate issued a search warrant to search a woman’s apartment based on an affidavit that identified Freedman as a known drug dealer, provided information which supported the conclusion he visited the woman’s apartment almost every day, “staying from fifteen minutes to two hours,” and stated that an informant had said the woman now living in the apartment had previously “sat” on his stash of narcotics at a different residence. (Ibid.) The court concluded the affidavit did not support probable cause to search the woman’s apartment, finding the affidavit rested “primarily on a conclusionary and stale tip from an unreliable informant,” while the remainder of the affidavit “reveal[ed] only that Freedman, who for these purposes is conceded to be a narcotics dealer, visited defendant in her apartment quite regularly. Mere association with Freedman without some reliable showing of recent criminal activity, however, fails to establish a sufficient basis to subject defendant to the invasion which a search entails.” (Id. at pp. 394-395.)
Hernandez involved the search of a house where officers observed a known drug dealer park a car behind the house and had seen cars the dealer had driven parked behind the house; the affidavit did not provide substantial evidence the dealer lived at the house, had a right to access the residence, or even that he knew anyone who did. (People v. Hernandez, supra, 30 Cal.App.4th at pp. 921-922.) The court concluded the affidavit in support of the search warrant did not give probable cause to search the house since the affidavit “was silent on whether [the dealer] ever even entered the [house] or any other of the structures on the property. . . . [¶] The presence of the vehicles raised suspicions, but failed to establish a nexus between the criminal activities and the residence. [Citations.] No information was presented that [the dealer] owned the vehicles, lived at the [house], received mail or phone calls at the residence or was seen carrying packages to and from it. Based on the totality of the circumstances, there was no substantial basis for concluding that probable cause existed for the residential search.” (Id. at pp. 923-924.)
Here, Detective Gregory’s affidavit provided substantial evidence defendant and Marsh lived together and were moving to the Lotus Pond Way home. The affidavit supported the inference defendant and Marsh had lived together before by showing they previously had the same registered address at Blue Star Court. Marsh’s presence at defendant’s Maxine Way home and defendant’s moving the van registered to Marsh into his driveway supported the inference they were in an ongoing relationship. Defendant’s Cadillac parked in the garage at Lotus Pond Way and his presence in the garage supported the inference he had a right to access the home. Based on this substantial evidence, the magistrate could rely on Detective Gregory’s opinion defendant and Marsh lived together and were moving into the Lotus Pond Way home. (See People v. Garcia, supra, 111 Cal.App.4th at pp. 720-721.) Finally, defendant does not dispute there was probable cause to believe he was engaged in the distribution and sale of methamphetamine. Defendant’s right of access to the home was the nexus between the alleged criminal activity and the Lotus Pond Way home. Was there probable cause to search the Lotus Pond Way home? With the trial court’s brevity, “[t]here was.”
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J. MORRISON, J.