People v. Brophy

• Decision Date: 23 April 1992
• Docket Number: No. A052370,A052370
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack Dean BROPHY, Defendant and Appellant.

Page 367

7 Cal.Rptr.2d 367

5 Cal.App.4th 932

The PEOPLE, Plaintiff and Respondent, v. Jack Dean BROPHY, Defendant and Appellant.

No. A052370.

Court of Appeal, First District, Division 4, California.

April 23, 1992.

Christine Dubois, Santa Rosa, for defendant and appellant.

Daniel E. Lungren, Atty. Gen. of the State of Cal., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney and Mark S. Howell, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

POCHE, Acting Presiding Justice.

Defendant, Jack Brophy, appeals from a judgment of conviction entered upon his plea of nolo contendere ¹ to a single count of possessing methamphetamine for sale. (Health & Saf.Code, § 11378.) Defendant contends that the trial court erred by denying his motion to suppress evidence obtained under six search warrants.

According to the affidavit submitted in support of the initial warrant Detective Geaslin, a deputy sheriff for Sonoma County talked by telephone with a postal inspector in Omaha, Nebraska at about 9:30 on the morning of June 21, 1989. The postal inspector told Detective Geaslin that earlier that day "he had intercepted a package at the Air Mail Facility" and "that he 'profiled' the package as possibly containing narcotics." The postal inspector "opened the package and found that it contained four one ounce baggies and four one gram baggies containing ... cocaine." The return address given on the package was Jack's Video Repair and Service, 2175 Gambels Way, Santa Rosa.

Having made the discovery of the illegal drugs, the postal inspector had arranged for a search warrant of the Omaha home. Somewhat later in the morning Detective Geaslin talked with the Omaha police officer who had served the warrant. According to that officer in addition to finding drug paraphernalia in the Omaha home he had found an express mail receipt for an item sent to the Santa Rosa address and a piece of paper with the name Jack Brophy and the Gambels Way address. A little later the Omaha policeman relayed the additional information that a second package sent to a different Omaha address from Jack's Video and Slides in Santa Rosa had been intercepted but not opened. On this affidavit a search warrant was issued which Detective Geaslin served that afternoon on the Gambels Way address.

When Detective Geaslin went to Gambels Way he learned that Mr. Brophy did not live there, but did receive mail there and was expected to arrive shortly. When Brophy arrived he was told by the detective that he was under arrest for mailing cocaine to Omaha, to which Brophy replied that it wasn't cocaine, it was crank (methamphetamine). In response to questioning Mr. Brophy admitted to having more drugs, guns and money stashed in storage units. Search warrants were eventually issued for five of those units, and a search of them produced more controlled substances.

On March 20, 1990, defendant moved to quash the search warrants and to suppress the evidence obtained under them. Defendant also sought to subpoena from the U.S. Postal Service: 1) its "standard procedure ... for drug-profile of packages mailed ... by next day delivery" and 2) "[a]ny records or files pertaining to JACK DEAN BROPHY ... in the above-entitled matter." The court refused to issue a subpoena as to the first item, but did direct the postal service to provide "[c]opies of any records or files pertaining to the U.S. Postal Service investigation of the above-named Defendant, including all materials relative to said Defendant derived from the U.S. Postal Service investigation conducted in Omaha, Nebraska." On May 4, defendant's motion for dismissal premised upon the postal service's failure to provide all the requested documents was denied. After repeated continuances the motion to suppress was heard and denied on July 27, 1990.

Discussion

When the trial court rules on a motion to suppress it makes three determinations: 1) it determines the facts, 2) selects the applicable rule of law, and 3) applies the latter to the former to determine whether or not the rule was violated. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.) On appeal the first inquiry is subjected to review for substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.) As to the second we apply our independent review applicable to a pure question of law. (Ibid.) As to the third, the reasonableness of the challenged conduct, this court again applies an independent judgment standard of review. (Ibid.)

The People attempt to defend the ruling arguing as initial matter that defendant has failed to show either that he had an expectation of privacy in the package he sent to Omaha or that its search was unlawful. First-class mail packages moving wholly within the United States may not be opened and searched without a warrant. (Ex parte Jackson (1877) 96 U.S. 727, 732-733, 24 L.Ed. 877; Lustiger v. United States (9th Cir.1967) 386 F.2d 132, 139.) The People speculate that this package might have been delivered before it was searched and thus defendant no longer had an expectation of privacy in its contents. If that were the case defendant could not raise a Fourth Amendment claim. (United States v. Salvucci (1980) 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-2553, 65 L.Ed.2d 619.) This hypothesis is totally unsupported by the record, but more importantly it demonstrates the unfair position in which defendant was placed. Because the postal authorities refused to respond to the court's discovery order defendant could not establish with particularity the circumstances of the initial search.

The law on evidentiary burdens is well settled. The defendant bears the burden of showing that the officers acted unlawfully in conducting a warrantless search. (People v. Williams, supra, 45 Cal.3d at p. 1300, 248 Cal.Rptr. 834, 756 P.2d 221; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.) When the defendant has shown a warrantless entry, the burden shifts to the prosecution to prove that the entry was nevertheless reasonable. (People v. Williams, supra, 45 Cal.3d at...