P. v. Cardiel

Filed 11/30/05 P. v. Cardiel CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO GANDARA CARDIEL, Defendant and Appellant.

F047637 (Super. Ct. No. BF108368A) O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Charles P. McNutt, Judge.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Locker, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

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Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Alejandro Cardiel, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378). The court imposed the 16-month lower term.

On appeal, appellant contends the court erred in denying his suppression motion. We will affirm.

FACTUAL BACKGROUND

On November 3, 2004, police in Bakersfield obtained and executed a search warrant authorizing search of appellant’s person, “the residence at 239 Irene Street” in Bakersfield (Irene Street residence) and two motor vehicles. The warrant was based on an affidavit executed on November 2, 2004, by City of Bakersfield Police Detective A. Ronquillo.

In his affidavit, Detective Ronquillo stated that within 10 days prior to its execution, he was contacted by a “confidential and reliable informant” (CRI), who told the detective the following.^[1] “[H]e/she^[[2]] was capable of purchasing methamphetamine,” and had in the past purchased methamphetamine, from a Hispanic male known to the CRI as “Al” who “resid[ed] at an unknown address, possibly in the Bakersfield area.” Al “drives two vehicles he uses to deliver methamphetamine: a newer, white, SUV type vehicle, and an older, brown over black Jeep CJ5.” The CRI provided a physical description of Al.

Detective Ronquillo provided Al with “city funds” for a controlled buy, and thereafter the CRI placed a telephone call and “ma[de] arrangements for the delivery and purchase of methamphetamine at a prearranged location.” Detective Ronquillo “remained in the area to assist in surveillance” and observed a subject who matched the general description provided by the CRI “arrive at the prearranged location in a newer, white, SUV type vehicle, and meet with the CRI.” During this meeting, the CRI obtained from the subject a substance which was later tested and determined to contain methamphetamine.

After the controlled buy, Detective Ronquillo and “surveillance units” followed the subject whom the detective suspected was Al. The subject “parked his vehicle in front of the residence” at 1018 Jefferson Street (“Jefferson Street residence”) and entered the residence. “A brown cloth-top over black, Jeep, CJ5” (Jeep) was parked in front of the Jefferson Street residence.

California Department of Motor Vehicle (DMV) records revealed the following. The white vehicle the subject was seen driving, a 2002 Chevrolet Trail Blazer (Chevrolet), was registered to Juanita O. Gonzalez or Alejandro G. Cardiel “at 609 Decatur Street, Bakersfield.” The Jeep was registered to Alejandro Cardiel or Jose Cardiel at the same address. Alejandro Cardiel listed his most recent address as 7000 Ming Avenue, Apartment C, in Bakersfield.

The CRI identified a photograph of Alejandro Cardiel, obtained from the DMV, as that of the man he knew as Al from whom he purchased methamphetamine at the police-arranged transaction.

Within the 10 days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Chevrolet and the Jeep, and during that time observed appellant “driving the Chevrolet . . . between the Jefferson Street residence and the residence at 239 Irene Street in Bakersfield.”

Within the five days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Jefferson Street residence, and observed the following. The residence “appeared at that time to be vacant with a ‘For Rent’ sign on the front gate.” The detectives “also found [the Chevrolet and the Jeep] parked at the residence at 239 Irene Street, during the late evening and early morning hours,” and they “observ[ed] [appellant] freely entering and exiting the residence, leading [Detective Ronquillo] to believe ALEJANDRO CARDIEL had moved to this residence.” “[O]n at least two occasions,” the detectives saw appellant “leave the residence at 239 Irene Street, enter the [Jeep] and drive away from the residence” and engage in activities known to Detective Ronquillo to be “consistent with narcotic sales,” viz., driving to various residences, entering, remaining a short time and leaving, making contact with persons in “open, public places, contacting these subjects for a short period of time, and then terminating his contact with them.”

Detective Ronquillo stated: “Based on the facts contained in this Statement of Probable Cause and my training and experience, I believe the previously described evidence is indicative of methamphetamine trafficking and currency derived from methamphetamine sales will be found in the locations . . . to be searched. [¶] It is also my belief that a search of the premises . . . will locate the previously described items and will identify those parties in control of the premises . . . in which illegal controlled substances may be found.”

Detective Ronquillo has been a police officer in Bakersfield for the past 27 years. The affidavit detailed his training and experience relating to detecting drug trafficking.

DISCUSSION

Appellant contends the affidavit submitted in support of the search warrant failed to establish probable cause to search the Irene Street residence, and therefore the court erred in denying the suppression motion.

“It is a basic principle of the Fourth Amendment that for a search warrant to issue there must be probable cause.” (U.S. v. Laughton (6th Cir. 2005) 409 F.3d 744, 747.) “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) 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.)

“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556, fn. omitted.) Thus, “[t]he affidavit must establish a nexus between the criminal activities and the place to be searched.” (People v. Garcia (2003) 111 Cal.App.4th 715, 721.) “ ‘[A]n affidavit . . . must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place. [Citations.] A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘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.” (Ibid.) “ ‘A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances.’ ” (Id. at p. 720.)

“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.” (People v. Kraft (2000) 23 Cal.4th 978, 1040. “ ‘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.’ ” (People v. Garcia, supra, 111 Cal.App.4th at p. 720.)

As indicated above, Detective Ronquillo stated in his affidavit that he believed “currency derived from methamphetamine sales [would] be found” in the Irene Street residence. Appellant agues this is a “bare, conclusory statement,” unsupported by any statement of the reasons for, or facts underlying, such belief. He argues that the affidavit did not “establish[ ] that he actually spent the night there or that he was living at that location.” And even if it was “established” appellant lived at the Irene Street residence, he argues, the affidavit does not establish a sufficient nexus between the residence and criminal activity. In support of this claim he notes that after the controlled buy, appellant went to the Jefferson Street residence, not the Irene Street residence. These contentions are without merit.

We first examine the showing that appellant lived at the Irene Street residence. The affidavit indicates the following. Although initially police observed appellant’s vehicles parked outside the Jefferson Street residence and appellant entering that residence, subsequently the Jefferson Street residence appeared to be empty, and a “For Rent” sign was posted. However, even before that residence appeared to be empty, police observed appellant driving “between” that location and the Irene Street residence, and thereafter police observed the following: appellant’s vehicles were parked at the Irene Street residence late in the evening and early in the morning; appellant “freely entered and exited” that location; and on at least two occasions appellant drove from that location to other locations where he engaged in activities Detective Ronquillo recognized as being consistent with drug trafficking.

Notwithstanding that appellant apparently provided DMV addresses on Decatur Street and Ming Avenue but not Irene Street, the presence of appellant’s vehicles at the Irene Street residence, and in particular the fact that vehicles were there late in the evening and early in the morning, considered in combination with the observations of appellant “freely” entering and leaving the residence on multiple occasions, support the inference appellant was living at the Irene Street residence.

We next turn to the question of whether the affidavit contained a sufficient showing of a nexus between the Irene Street residence and criminal activity. There is no serious dispute the affidavit is sufficient to establish probable cause that appellant was engaged in criminal activity, specifically, drug dealing: he was observed selling to the CRI a substance that was later determined to contain methamphetamine, and he later drove from the Irene Street residence to parts of Bakersfield where he engaged in activity known to Detective Ronquillo to be consistent with drug dealing.

We recognize, as appellant points out, that “it cannot follow in all cases, simply from the existence of probable cause to believe a suspect guilty, that there is also probable cause to search his residence.” (U.S. v. Lucarz (9th Cir. 1970) 430 F.2d 1051, 1054.) However, “[t]he nexus between the objects to be seized and the premises searched need not, and often will not, rest on direct observation, but rather ‘can be inferred from the type of crime, the nature of items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime] . . . .’ ” (U.S v. Reddrick (7th Cir. 1996) 90 F.3d 1276, 1281, emphasis added.) Thus, it has been “ ‘recognized that, in issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept, based on the nature of the evidence and the type of offense[]’ [citation], and that ‘in the case of drug dealers evidence is likely to be found where the dealers live[]’ [citation].” (Ibid.; accord, U.S. v McClellan (7th Cir. 1999) 165 F.3d 535, 546; U.S. v. Feliz (1999) 182 F.3d 82, 87-88.) As the court asked rhetorically in U.S. v. Feliz, supra, 182 F.3d at p. 88, “If [the defendant, a drug dealer] did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his apartment, where else would he keep them?” Thus, in the instant case, the magistrate was entitled to infer that, as Detective Ronquillo asserted, there was probable cause that appellant kept the proceeds of his illegal drug sales in the Irene Street residence.

“Although individual facts within the affidavit might also be consistent with lawful activities, it is the totality of the circumstances that must be considered. The fact that there may be more than one reasonable inference to be drawn does not defeat the issuing magistrate’s finding of probable cause.” (People v. Stanley, supra, 72 Cal.App.4th at p. 1555.) Here, when we interpret the affidavit in the proper “practical, common-sense” fashion, evaluate it in light of the totality of the circumstances and accord proper deference to both the experienced officer/affiant and the trial court, we conclude the magistrate did not err in determining that the affidavit established probable cause that evidence of a crime would be found in the premises searched. (Illinois v. Gates, supra, 462 U.S. at p. 238.)

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1] The remainder of the “Factual Background” section is taken from the affidavit executed by Detective Ronquillo.

^[2] For the sake of brevity, we will use the masculine pronoun in referring to the CRI.