People v. Derello
| Decision Date | 08 June 1989 |
| Docket Number | No. E004572,E004572 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Donald J. DERELLO and David Wayne Taylor, Defendants and Appellants. |
After an unsuccessful motion to suppress evidence (Pen.Code, § 1538.5) defendants Donald J. Derello and David Wayne Taylor proceeded to jury trial on the joined charges of transporting cocaine, in violation of Health and Safety Code section 11352. There were further allegations that each of these defendants was ineligible for probation (Pen.Code, § 1203.073, subds. (b)(6), (b)(7).) The jury found each defendant guilty of the charged offense. Probation applications were denied and each defendant was sentenced to prison for the aggravated term of five years. Each was ordered to pay a restitution fine of $5,000. Derello and Taylor appeal.
Detectives Kaiser and Greenwell of the Los Angeles Police Department were assigned to the Ontario International Airport as part of the Narcotics Task Force to investigate narcotic trafficking. Each had extensive narcotic investigative experience. Kaiser had fifteen years and Greenwell had eight years. These detectives observed Taylor and Derello standing in front of the Avis rental car counter in conversation with the clerk. They were casually dressed. Derello wore gold colored "very expensive type ... jewelry." Both appeared "nervous." Taylor was looking about as if scanning the area, possibly looking for people who were looking at him. He walked away from Derello, then returned.
Detective Kaiser concluded, from their casual dress, they did not appear to be businessmen. Derello was carrying a maroon colored vinyl type suitcase. Taylor was carrying a brown, hard-sided battered suitcase. The detectives heard Derello telling the Avis clerk he had just arrived from Phoenix on Southwest Airlines. He asked to rent a Cadillac or Lincoln Continental. The Avis clerk had no such car. He directed Derello to the Hertz counter. Derello talked briefly with Taylor and then went to the Hertz counter. There Derello filled out rental papers using the name Donald Derello. Both men then proceeded to the area where the rental car was parked.
Detective Kaiser talked with the Hertz clerk, requested to be notified when the two persons returned the rental car. Detective Greenwell checked Southwest Airline's passenger list. He could not find Derello's name as a passenger from Phoenix.
The next day (March 12, 1987) around 3:15 Avis notified the detectives Derello was returning the car. They watched him. Derello paid cash for the rental car. Derello was carrying the hard brown suitcase. Taylor was carrying with him the maroon soft suitcase. Taylor had a new beige carry-on piece of luggage. Taylor stood with Derello for a moment, then walked toward the terminal for America West Airline, where he got in the ticketing line. Detective Kaiser followed.
Derello in the meantime left the Hertz counter and walked to the telephones in the main lobby of the airport. He put the brown suitcase down on the floor and walked to the telephones a few feet away and there placed a call. After the call he went to the America West counter and talked with Taylor who still waited in line. Derello obtained two baggage identification tags from the America West counter. He filled out the tags with the name " ." He walked back to Taylor, put one tag on the maroon bag and one tag on the beige bag.
Taylor finally reached the counter. There he bought two one way tickets to Phoenix, giving the passenger names of Doug Williams and Tony Williams. He paid cash for the tickets and surrendered the tagged luggage to the America West agent. The bags were then placed on a conveyor belt behind the ticket counter and moved to the rear of the ticketing area. Detective Kaiser followed the luggage.
After buying the tickets Derello and Taylor spoke briefly then separated. Taylor walked through the screening area to the boarding area and Derello returned to the telephone area where he retrieved the brown suitcase he had been carrying. He carried the suitcase through the x-ray screening door without incident.
At this point Detectives Hadley and Greenwell approached, greeted Taylor, showed their badges to him. They stated they were police officers. They told Taylor he was not under arrest and was free to leave, they were conducting an investigation. They asked Taylor if he would mind talking to them? Taylor replied, Hadley responded, "Narcotics." Taylor responded, "Sure what is it you want to know?" Taylor was asked for identification. He said he had none. He however handed his airline tickets to Detective Hadley, stating he was flying to Phoenix with his brother. He said his name was Doug Williams and his brother's name was Tony Williams. He gave an address in Phoenix as 2202 West Wayland. Hadley read the names on the tickets and looked at the two baggage tags attached to the folder. He asked Taylor if he had any baggage. Taylor said he had checked the baggage and showed the two tags on the folder. The detectives then asked Taylor for permission to search his baggage. Taylor responded, (Emphasis added.) Officer Britt was told Taylor had given permission to search. He alerted Detective Kaiser, who was still following the suitcases. With knowledge of the consent given, Kaiser searched the bags. Inside the maroon case he found two plastic baggies each containing a white substance--cocaine. The baggies were wrapped inside a pair of men's jogging pants.
In the meantime Detectives Greenwell and Hadley continued to talk with Taylor. Taylor said he was looking for his brother. The detectives indicated they would also like to talk to the brother. They asked if he would mind walking back to the waiting area of the terminal. Taylor said, "Sure." When they walked inside the terminal, the detectives saw Derello standing alone by the pay phones. The detectives pointed to Derello and asked if that was his brother. Taylor stated, "No." They asked Taylor if he knew the person they were pointing to. Again Taylor said, "No."
Detective Hadley next approached Derello and identified himself as a police officer. He said he was conducting an investigation. He told Derello he was not under arrest and asked to speak to him. Derello replied, "Sure." Detective Hadley pointed to Taylor and asked if Derello knew him. Derello said, "No." Hadley asked permission to search the brown suitcase carried by Derello and Derello consented. No contraband was found in the suitcase.
At this point Detective Kaiser approached and told his fellow officers he had found the cocaine in the checked baggage. Taylor and Derello were then arrested.
At trial Derello testified in his own defense. He admitted he was the owner of the suitcase containing the cocaine, but swore the cocaine was not his; he did not know it was in the suitcase. Derello testified he was going to visit his girlfriend, Kim, in San Bernardino. He and Taylor switched suitcases because Taylor needed a larger suitcase and Derello no longer needed the large maroon suitcase. Derello asked Taylor if he wanted identification tags placed on the suitcase. Taylor told him to put the name "Williams" on the tags. Taylor explained the reason to Derello the reservations were under the name of Williams. Derello said while he was back at the telephones placing another call the officer approached him and told him to get off the phone. The officer showed his badge and said something about a narcotics investigation. Derello testified in response to the officers' question, did he know Taylor? he had said, "Yes."
Taylor contends the trial court should have granted his 1538.5 motion to suppress because (1) there was no cause for the detention and (2) the consent to search was ambiguous and limited in scope.
Derello makes this further contention: the trial court erred in allowing testimony of the detectives to the effect he, Derello, met the criteria of a "drug trafficker" profile.
Both defendants assert the imposition of a $5,000 restitution fine was excessive under the circumstances of this case.
Derello contends that the trial court erred in admitting the detective witnesses' testimony regarding the "drug trafficker profile" over his objections pursuant to Evidence Code sections 210, 350, 352 and 1101. In his motion in limine, counsel argued that there was no reason to admit this evidence because it was irrelevant to the issues before the jury, which were the elements of the crime of transportation of cocaine--the unlawful transportation of the cocaine with knowledge of its nature as a controlled substance. The prosecution argued that it was necessary in order to explain to the jury why the police became suspicious of the duo and that this information was relevant to the case.
After the court opined that the facts surrounding the detention had some relevance to the case, Derello's counsel argued that whatever relevance there might be was outweighed by the prejudicial effect of the profile on the jury and that the evidence of the profile was also character evidence barred by the Evidence Code. Counsel then offered to stipulate that he would not argue to the jury that the surveillance was in any way improper, and offered to affirmatively state to the jury that the stop by the officers was...
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