People v. Gallegos

• Decision Date: 28 February 2002
• Docket Number: No. B147414.,B147414.
• Citation: 96 Cal.App.4th 612,117 Cal.Rptr.2d 375
• Parties: The PEOPLE, Plaintiff and Appellant, v. Lonnie Hagan GALLEGOS et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

117 Cal.Rptr.2d 375

96 Cal.App.4th 612

The PEOPLE, Plaintiff and Appellant, v. Lonnie Hagan GALLEGOS et al., Defendants and Respondents.

No. B147414.

Court of Appeal, Second District, Division 3.

February 28, 2002.

Steve Cooley, District Attorney, Brent Riggs and William Woods, Deputy District Attorneys, for Plaintiff and Appellant.

Law Offices of Charles T. Mathews and Charles T. Mathews, Pasadena, Raymond G. Ballister, Jr. and Jeffrey A. Rager, for Defendant and Respondent Lonnie Hagan Gallegos.

Bruce A. Hoffman, Alternate Public Defender, and Felicia Kahn Grant, Deputy Alternate Public Defender, for Defendant and Respondent Jerry Manuel Ramirez.

ALDRICH, J.

Pursuant to Penal Code section 1238, subdivision (a)(7),¹ the People appeal the superior court's suppression of evidence seized during a search of the home of defendants and respondents Lonnie Hagan Gallegos and his stepson, Jerry Manuel Ramirez. The People contend the trial court erred by "fail[ing] to properly apply the well-established rule that when officers executing a valid search warrant discover weapons and contraband in plain view they may seize those items, even if not denominated in the warrant." We agree with the People and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Undercover investigation of the Mongols motorcycle gang and issuance of search warrant.

In a two-and-one-half year undercover investigation, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF) investigated the Mongols motorcycle gang's suspected criminal activities, including alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961 et seq.). ATF Special Agent John Ciccone prepared a 167 page affidavit in support of warrants authorizing searches of numerous residences and two businesses believed to be associated with the Mongols.

That affidavit stated the following. The Mongols was an outlaw motorcycle gang, whose primary purpose was the proliferation and maintenance of the gang through criminal activity. Members of the gang had violated RICO and other federal statutes by engaging in criminal activities including murder, extortion, sale and possession for sale of controlled substances, interstate transportation and possession of stolen motorcycles, changing or obliterating the vehicle identification numbers of stolen motorcycles and/or motorcycle parts, using firearms in connection with violent crimes, and possession of firearms and ammunition by convicted felons. The gang was highly organized and the organization's Secretary Treasurers kept records of meetings and finances.² Gallegos was Secretary Treasurer of the El Sereno Mongols chapter.

The affidavit noted that the warrants to be issued would seek different items from different search locations. It explained that, "in many instances the individuals whose residences are being searched under this portion of the affidavit are not directly implicated in any crime" but that their residences would be searched because they were the custodians of records for Mongols chapters.³

Based upon the information in the affidavit, on May 11, 2000 the United States District Court for the Central District of California issued a warrant to search Gallegos's property. The warrant authorized the search of Gallegos's premises for evidence of racketeering activities and authorized the seizure of various documents related to the Mongols organization.⁴

2. The search.

On May 19, 2000, Gallegos's home was searched pursuant to the warrant, revealing Mongols documents, as well as marijuana, numerous guns and ammunition, and other items. Testimony by officers at the defendants' motion to suppress the items was as follows.

Various law enforcement officers executed the warrant at approximately 6:50 a.m.⁵ Using a public address system, officers ordered Gallegos, his wife, respondent Ramirez (Gallegos's stepson), and another stepson out of the residence. They were handcuffed and detained, initially on the front lawn and then on the living room couch. Los Angeles County Sheriffs Detective Tui Wright and other officers completed a quick protective sweep of the premises; no other persons were found inside. Wright spoke to Gallegos, told him officers were there to execute a search warrant, and, "for safety reasons," asked if there were any firearms inside the house. Gallegos informed Wright that a rifle, a shotgun, an assault weapon, and ammunition were located under his bed, and that other weapons were located in the garage. Subsequently, officers searched the one-story three-bedroom residence, as well as the detached garage, a truck located in the residence's driveway, and a motor home parked on the property.

a. Search of Gallegos's bedroom.

Detective Wright and his partner Robert Knudson searched Gallegos's bedroom (the master bedroom). Under the bed, Knudson found a Beretta shotgun, a Glenfield semiautomatic .22 rifle, and a Norinco 84-S assault weapon with five extra magazines. Wright was present when Knudson retrieved the weapons and knew that assault weapons, such as the Norinco 84-S, were illegal. All three weapons were placed in a central location in the interest of officer safety.⁶

Wright and Knudson both searched the master bedroom closet. Knudson discovered five large green cans filled with ammunition.

One thousand, four hundred dollars in cash was recovered from the pocket of a pair of Gallegos's pants that were in the bedroom. A checkbook was found in a bedroom dresser.

The weapons were recovered from under the bed within the first 30 minutes officers were at the residence. The other items were recovered within approximately the next two hours in a more detailed search. The master bedroom was not searched completely at one time; instead, the officers searched portions of the room and later returned to complete the search of other portions of the room.

b. Search of Ramirez's bedroom.

After searching Gallegos's bedroom, Wright and an ATF agent moved to respondent Ramirez's bedroom, which was messy and cluttered. A set of brass knuckles was in plain view on a table or stand next to the doorway. Wright recognized that the brass knuckles were illegal.

Wright observed a plastic Tupperwaretype box, approximately 18 inches long by 10 inches wide, on the floor of the room. The top of the box was opaque plastic; the sides were translucent. Looking through the sides, Wright could see some items, but could not discern whether they were papers, as he "really couldn't see through" the box. Wright opened the box and discovered nine plastic bags of marijuana.

On the floor in plain sight was a small scale, approximately two feet away from the Tupperware box. Wright found the scale significant in that it was close to marijuana which appeared to be packaged for sale.

On the floor in the middle of the room, in plain view, was a green duffle bag, approximately three by three by two feet. Wright unzipped the bag and opened the top flap. He immediately saw an oxygen tank engraved "State of California, Department of Recreation." The engraving and at least a portion of the serial number were in view as soon as Wright opened the top flap of the bag, without the necessity for Wright to move or handle the tank. The next day, after the tank had been seized in the search, Wright used the serial number to conclusively determine that the tank was stolen; however, he had "decided it was stolen prior to making any calls" because of the engraving. Wright explained that he "suspected it might have been" stolen, but did not "form a complete opinion."

c. Search of the truck.

Sergeant Gloria Gressman searched a truck found in the driveway of the Gallegos residence. In the truck bed, she discovered a small white Sentry safe, approximately six inches high and one foot wide. Knudson opened the safe. It contained a loaded .44 Special Charter Arms revolver.

d. Search of the garage.

Gressman, Knudson, and Deputy Sheriff Steven Blagg searched the detached garage. The garage contained several display cases, which were cluttered with many items. It also contained a filing cabinet and a workbench strewn with tools, papers, and magazines.

Also in the garage, Gressman found another white Sentry safe, like the one found in the truck. Inside the safe officers found a Mongols motorcycle jacket with Mongol patches located on the breast and back;⁷ a loaded .357 Magnum blue steel revolver; approximately a pound of marijuana, packaged in three separate bags; and a number of documents, including receipts related to the Mongols gang.

In plain sight in the center of the garage, resting on a glass display case, Knudson found a wooden box, approximately 14 by 12 by 5 inches, containing a revolver. Knudson found this box approximately one hour after officers' arrival at the house.

In a workbench drawer, Blagg discovered a Mossberg 12 gauge shotgun and shotgun shells; checkbooks; photographs; miscellaneous paperwork; and two electronic gram scales. Blagg found a triple beam scale on a garage shelf, and a bulletproof vest on the floor.

e. Search of the motor home.

At approximately 11:00 a.m. or 12:00 noon, Wright and Knudson searched a motor home parked on the premises. The motor home was the last location searched.

Prior to searching the motor home, Wright spoke to Gallegos and advised him of his Miranda⁸ rights. Gallegos told Wright that he was on probation for narcotics violations and was prohibited from owning firearms.

The officers then searched a hinged storage space located beneath a bed in the motor home. Inside they found another document safe similar to the safes found in the garage and truck bed, but larger than the others. The safe contained an Intratec .9 millimeter assault weapon with five or six magazines; a Smith and Wesson .9 millimeter pistol with magazines in a small zippered case; a Jennings .22 semiautomatic pistol with a holster; ammunition; military and firearms manuals, including some...