People v. Bautista

• Decision Date: 27 January 2004
• Docket Number: No. H024442.,No. H026395.,H024442.,H026395.
• Citation: 8 Cal.Rptr.3d 862,115 Cal.App.4th 229
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dave BAUTISTA et al., Defendants and Appellants. In re Dave Bautista, on Habeas Corpus.

8 Cal.Rptr.3d 862

115 Cal.App.4th 229

The PEOPLE, Plaintiff and Respondent, v. Dave BAUTISTA et al., Defendants and Appellants.

In re Dave Bautista, on Habeas Corpus.

No. H024442.

No. H026395.

Court of Appeal, Sixth District.

January 27, 2004.

As Modified February 17, 2004.

Review Denied April 14, 2004.

Sixth District Appellate Program, In association with Meredith Fahn, for Defendant/Appellant/Petitioner: Dave Bautista.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Catherine A. McBrien, Deputy Attorney General.

By appointment of the court of appeal Rex Williams, for Defendant/Appellant: Michael Bautista.

PREMO, J.

Brothers and co-defendants Dave and Michael Bautista (Dave and Michael)¹ appeal their conviction of possession of marijuana for sale based upon their guilty pleas after their motion to quash a search warrant and suppress evidence was denied by the trial court. On appeal, both contend that the court erred in finding that a Drug Enforcement Administration (DEA) officer did not impermissibly use military personnel to obtain the evidence supporting the search warrant in violation of the Posse Comitatus Act (PCA). (18 U.S.C. § 1385.) In a petition for a writ of habeas corpus which we have ordered considered together with the appeal, Dave asserts that his trial counsel rendered ineffective assistance of counsel because he did not advise Dave that he would be subject to mandatory deportation and exclusion from the United States for conviction of the charge to which he pled.

FACTS

On July 6, 2000, DEA agent Joseph Muenchow and other agents made a third trip to a public storage facility at 1395 Mabury Road in San Jose on an investigation unrelated to this case that began in November 1999. Because the two sheriff's narcotics detection dog and handler teams that Muenchow normally used were unavailable that day, Muenchow had contacted agent Stan Baroff at the DEA office at San Francisco airport who arranged for the assistance of United States Army Sergeant James Harris, and Harris's narcotics detection dog, Rocko. Army narcotics detection canine teams were given previous assignments for the DEA, and "dog handlers and their dogs rotate in and out to assist DEA task force...." Muenchow did not check for the availability of a dog team with the California Highway Patrol (CHP) whose narcotics detection dog teams he had also used in the past or with other local narcotics task forces.

Muenchow was aware of the PCA and knew that use of the military by civilian law enforcement was not allowed. The PCA provides "[w]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." (18 U.S.C. § 1385.)² In 1981, Congress amended the PCA to allow for certain military assistance in fighting the war on drugs (10 U.S.C. §§ 371-378), but the statutory exceptions were intended to be narrowly limited, so as "not [to] include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law." (10 U.S.C. § 375.)³ Muenchow relied on his supervisor when he accepted the assistance of Harris and Rocko.

Harris and Rocko met the agents at the storage facility. On their way to the area Muenchow was interested in, they "just happened to stroll" past defendants' locker, B-46. Rocko had been let off his leash, and he went directly to the vicinity of B-46 and sat down. This was the signal Rocko and Harris used for a positive "alert" for narcotics. It was not clear whether Rocko was alerting to B-46 or B-47, so Harris walked him away and then twice let him return to the area. At that point, it became clear to Harris that Rocko was alerting to locker B-46.

Harris and Rocko were certified by the Military Working Dog team on December 17, 1999. In the affidavit in support of the search warrant, Muenchow stated that Rocko was certified as a patrol dog in narcotics detection at a 93 percent accuracy rate. Under military rules, a dog loses certification if the detection rate falls below 90 percent for three or more consecutive months, if the dog is separated from the handler, or fails to train for 30 or more consecutive days, or if a new trainer/handler is assigned. Rocko and Harris were currently certified and currently were in compliance with all military requirements. Rocko was certified to detect cocaine, heroin, methamphetamine, and marijuana in all its forms. Because of the extent of Rocko's training, it was not possible to determine what type of controlled substance caused him to "alert." Muenchow stated Rocko may have alerted on any individual controlled substance or any combination for which he is trained.

Using a federal administrative subpoena which may be authorized by the acting supervising agent at the DEA office, Muenchow obtained the rental agreement which identified Michael as the renter and Dave as someone who had access to the locker. Muenchow ran a record check on defendants and learned that Dave had had two arrests in Fresno and Coalinga in 1994 for using a false compartment in violation of Health and Safety Code section 11366.8. No disposition was listed for the Fresno case and the Coalinga case was dismissed. However, marijuana and "$4,000 was seized" in that case.

Muenchow obtained the search warrant the same day, and then returned to the storage facility and searched locker B-46. He seized approximately 100 pounds of marijuana.

The next day, Muenchow went to defendants' home, searched their house, found a small bag of marijuana in Michael's bedroom, and arrested them. Dave admitted that he and Michael shared the storage locker.

Defendants were charged and pled guilty to a violation of Health and Safety Code section 11359, possession for sale of marijuana. Their earlier motions to quash the search warrant and suppress the evidence had been denied and the plea bargain promised them prison terms of 16 months. They received the agreed-upon sentences. These appeals ensued.

ISSUE ON APPEAL

Defendants assert their motions to quash and suppress should have been granted because the evidence supporting issuance of the search warrant was obtained through the impermissible use of military personnel in civilian law enforcement in violation of the PCA. Dave argues this violated his Fourth Amendment rights.

STANDARD OF REVIEW

"`"In ruling on [a motion to suppress evidence], the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] `The [trial] court's resolution of each of these inquires is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review."'" (People v. Ayala (2000) 24 Cal.4th 243, 279, 99 Cal.Rptr.2d 532, 6 P.3d 193.)

DISCUSSION

Defendants complain that Harris's and Rocko's "alert" constituted direct involvement of the military in a civilian law enforcement procedure. In denying the motion to quash and suppress at preliminary hearing, the magistrate said, "this dog, I believe, gave them a tip. I think that was indirect military involvement.... I don't think this indirect assistance to civilian authorities without subjecting civilians to the exercise of military power that is regulatory, proscriptive or compulsory in nature, was what occurred.... I believe this was indirect assistance to a civilian authority."

When the motion was brought de novo in superior court, the judge denied the motion stating, "I don't see where Sergeant Harris' involvement resulted in some kind of regulatory compulsive military power or exercise. It certainly didn't amount to a direct or active involvement in execution of laws. He was there to report. He wasn't there to enforce, and it does not seem that he pervaded the activity of the civilian authorities, i.e., the Department of Justice fellow who was part of the investigation. He was there as sort of an assistant or an ancillary tool to help rather than to direct."

Defendants had a protectable privacy interest in the storage locker that they rented. However, they did not have a protectable privacy interest in the air space around the locker or the air that emanated from the locker. (People v. Mayberry (1982) 31 Cal.3d 335, 341, 182 Cal.Rptr. 617, 644 P.2d 810.) Agent Muenchow and Sergeant Harris were rightfully in the public space of a public storage facility on an investigation unrelated to defendants. It is unknown if this investigation was related to airport security, the purpose for which Sergeant Harris and Rocko were assigned to San Francisco airport. While Muenchow and Harris were where they had a right to be, they observed Rocko unexpectedly "alert" on a storage locker. "[E]xposure of respondent's luggage, which was located in a public place, to a trained canine-did not constitute a `search' within the meaning of the Fourth Amendment." (United States v. Place (1983) 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110.) Our Supreme Court has also found a dog sniff not to be a search requiring any level of objective justification under...