People v. Fernandez

• Decision Date: 01 August 1989
• Docket Number: No. B,B
• Citation: 261 Cal.Rptr. 29,212 Cal.App.3d 984
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Cesar FERNANDEZ, Defendant and Respondent. 036700.
• Court: California Court of Appeals Court of Appeals

Page 29

261 Cal.Rptr. 29

212 Cal.App.3d 984

The PEOPLE of the State of California, Plaintiff and Appellant, v. Cesar FERNANDEZ, Defendant and Respondent.

No. B 036700.

Court of Appeal, Second District, Division 2, California.

Aug. 1, 1989.

Ira Reiner, Dist. Atty. of Los Angeles County; Harry B. Sondheim, Head Deputy Dist. Atty., Appellate Division, George G. Size, Deputy Dist. Atty., for plaintiff and appellant.

Jerry Kaplan, Kaplan, Kenegos & Kadin, for defendant and respondent.

ROTH, Presiding Justice.

The People appeal from the trial court's order quashing the search warrant for Cesar Fernandez's apartment, suppressing resulting evidence and dismissing the case against him on the basis of an insufficient warrant. (Pen.Code, § 1538.5.) We reverse.

The order is appealable. (Pen Code, § 1238, subd. (a)(7).)

On review, we apply the same standard which governed the trial court: the magistrate's order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause. (People v. Campa (1984) 36 Cal.3d 870, 878, 206 Cal.Rptr. 114, 686 P.2d 634.) A reviewing court should give great deference to the magistrate's determination of probable cause. (People v. Love (1985) 168 Cal.App.3d 104, 109, 214 Cal.Rptr. 483.) The question is simply whether the magistrate had a substantial basis for concluding that probable cause to search the described premises existed. (Illinois v. Gates (1983) 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527.)

Probable cause to search exists when, based on the totality of circumstances described 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, supra, 462 U.S. at p. 238, 103 S.Ct. at p. 2332.)

The essence of respondent's argument is that the affidavit does not explain the relevance of respondent's apartment, i.e., does not link the apartment with drug trafficking. We disagree.

Glendale Police Officer Ian Grimes supplied the affidavit in support of the search warrant. He stated that he was assigned to the narcotics bureau, and had been trained in investigating drug-related offenses. He had participated in more than 250 surveillances of drug traffickers. Based on his training and experience, he knew that drug traffickers often engage in the following activities: the frequent use of public telephones to avoid wire taps; the use of beepers and cellular telephones to keep in touch with co-conspirators; the use of anti-surveillance driving techniques; the use of postal drop box addresses to register vehicles; and the use of several rental properties in a given area.

A multi-agency investigation of cocaine distribution had focused suspicion on a certain Edward Cardona. Several cars were registered to him at a postal drop box in West Los Angeles. It was believed that Cardona was living at 357 S. Rexford Street, Beverly Hills. Surveillance of the location began on September 16, 1987.

A jeep registered to Cardona was parked in the building's parking lot. That afternoon a man matching Cardona's description and a woman passenger drove the jeep to a bank. The woman entered the bank and engaged in a transaction with about $3,000 in one hundred dollar bills. Meanwhile Cardona drove around the block while talking on a cellular phone. He picked up the woman and drove to a restaurant. He wrote in a notebook while they ate. The woman went to a public telephone and told the party on the other end that she needed "the whole package today." They returned to 357 S. Rexford.

A bit later the two drove to 220 S. Rexford Street. The woman spoke to the occupant of apartment A while Cardona stood back and observed passing traffic. After staying at the apartment about fifteen minutes the couple returned to the jeep and drove away. They drove very swiftly and drove through several traffic lights just as they turned red, as though attempting to evade surveillance.

An hour-and-a-half after they returned to 357 S. Rexford. Cardona walked a half-block to 332 S. Rexford, Apartment 1, where respondent lived. He knocked on the door, but no one answered. He slipped two envelopes under the door, and returned to 357 S. Rexford Street.

Approximately an hour later Cardona drove to a market while talking on a cellular phone. He got out of the car, consulted his pager and went to a public phone. He said: "Your car is at the airport, you leave the ticket in the car." Officer Grimes noted in his affidavit that drug traffickers often use cars parked by one individual and picked up by another to distribute drugs. Cardona returned to 357 S. Rexford.

About forty-five minutes later Cardona walked to respondent's residence, where he met a man who had parked a silver Audi in front of the building. They had a brief conversation while they observed passing traffic.

About fifteen minutes later, Julio Osorio parked a blue Mercury in front of respondent's apartment. Osorio walked to respondent's open door, carrying a briefcase. After conversing with three individuals in the apartment, Osorio left with his briefcase.

Osorio drove to a newsstand. A man got into the car. While Osorio spoke on a cellular phone, he slowly drove around a six-block area for fifteen minutes, almost continuously looking into the rear view mirror. This is a driving pattern typical of drug dealers. Osorio drove back to the newsstand and let out his passenger, who entered a Honda Prelude. This Honda was registered to the same postal drop box as Cardona's jeep.

Surveillance resumed the next day. Osorio met with Gilbert Tabares at 3445 Mentone Avenue in Palms. Officer Grimes later ran a check on Tabares and learned that he had been arrested a number of times for drug-related crimes. After going into one of the condominiums they left the complex together in a white Mercury Lynx. Osorio was carrying a cellular phone and Tabares was carrying a briefcase. Tabares began driving in a circle while Osorio spoke on the phone and examined the contents of the briefcase. They returned to the Palms area, where they met a black South American. The three drove to Tabares' condominium. About five minutes later Osorio drove away in the blue Mercury. Tabares drove the Mercury Lynx onto the Santa Monica Freeway, then suddenly swerved onto the next off ramp. Once back on the streets he made dangerous lane changes and turns, frustrating attempts to follow him.

On September 21 Osorio drove to Tabares' condominium complex. He met Tabares in the Mercury Lynx. Tabares was agitated and yelled at Osorio. Tabares got a black briefcase from his car and opened it for Osorio to inspect. They drove away in their respective cars.

At 3:00 p.m. Osorio drove the Mercury to 1616 So. Wooster in Los Angeles. He entered the house with a black briefcase. He left an hour later and drove to the newsstand, where he met three Latino men who were driving a tan Oldsmobile. They spoke for approximately ten minutes. One of the three men entered Osorio's Mercury and drove it...