People v. Garcia

• Decision Date: 26 August 2003
• Docket Number: No. B159701.,B159701.
• Citation: 111 Cal.App.4th 715,3 Cal.Rptr.3d 895
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victoria GARCIA, Defendant and Appellant.

3 Cal.Rptr.3d 895

111 Cal.App.4th 715

The PEOPLE, Plaintiff and Respondent, v. Victoria GARCIA, Defendant and Appellant.

No. B159701.

Court of Appeal, Second District, Division 5.

August 26, 2003.

Rehearing Denied September 16, 2003.

Review Denied November 25, 2003.

Peter A. Vance, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

GRIGNON, J.

The police obtained a search warrant for a business establishment that was open to the public, based on sales from the establishment of methamphetamine by an individual who was neither an owner nor an employee of the business establishment. We conclude the search warrant was facially invalid. When a search warrant for a business establishment open to the public is based on the sale of controlled substances by a target who is neither an owner nor employee of the establishment, the affidavit submitted in support of the warrant must establish probable cause to believe controlled substances will be found at the business establishment. The sale of controlled substances alone is insufficient, because there is no probable cause to believe the controlled substances are stored in the business establishment rather than on the person or in the possession of the target. We conclude further, however, that the police relied in good faith on the search warrant. We affirm.

PROCEDURAL BACKGROUND

Defendant and appellant Victoria Garcia was charged with possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) and possession of a smoking device in violation of Health and Safety Code section 11364. She moved to suppress the evidence of the methamphetamine and the smoking device on the sole ground of the facial invalidity of the search warrant, asserting the affidavit was based on stale information and failed to establish probable cause to believe controlled substances would be found at the place to be searched. The court reviewed the affidavit and denied the motion. Defendant entered a plea of no contest to the charges. Defendant received a probationary sentence under the terms and conditions of Proposition 36. Defendant appeals.

FACTS¹

The affiant is a detective in the Los Angeles County Sheriffs Department and a controlled substance expert. On or after January 23, 2002, the affiant was contacted by a confidential reliable informant. The informant told the affiant that Paula Conner was selling methamphetamine from a La Puente bar and a West Valinda residence. The informant told the affiant "that he/she has routinely purchased methamphetamine from both of the locations on numerous occasions in the past and that he/she would be willing to purchase methamphetamine from the business or the residence." The affiant supervised a controlled buy of methamphetamine by the informant from Conner at the West Valinda residence.

During the course of the investigation, the affiant "conducted a surveillance" of the La Puente bar. "During this surveillance, [the affiant] saw [Conner] inside of the [bar], speaking to patrons of the bar." Conner had suffered two prior convictions for possession of a controlled substance for sale. The last conviction had occurred in 1998 and Conner had been sentenced to state prison for more than four years.

In the affiant's opinion, Conner "has access to the described business and residence and is using them as instruments to assist her in the distribution of methamphetamine to prospective customers.... [¶][I]t is common for persons who traffic[ ] in narcotics to employ techniques and practices to avoid detection by law enforcement. Among these techniques are the use of multiple locations. This method allows suspects to minimize risk of discovery in case the customer either is an informant or being surveilled by law enforcement. Additionally, ... it is common for persons who traffic[ ] in narcotics to utilize bars/taverns as places to sell controlled substances." In the affiant's expert opinion, "a quantity of methamphetamine is maintained at the business ... and the residence.... Additionally ... from this quantity, portions are sold on a regular basis.... [W]hen this search warrant is served, quantities of methamphetamine for sale will be seized and records of these transactions will be recovered."

The search warrant was issued on January 31, 2002.

DISCUSSION

The search warrant was executed on the bar on February 7, 2002. Defendant was working as a bartender. The police officers found methamphetamine and a glass pipe in defendant's possession. Defendant's motion to suppress was a facial challenge to the validity of the search warrant for the bar. The hearing on the suppression motion consisted of a review of the affidavit and argument by the attorneys. There was no evidentiary hearing. Thus, the record does not reflect the basis for the search of defendant's person.

On appeal, defendant contends the affidavit submitted in support of the search warrant failed to establish probable cause to search the bar. We agree, but conclude the police acted in good faith in relying on the search warrant.²

Probable Cause

When an appellate court reviews the validity of a search warrant, "the magistrate's determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[]." (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278, 51 Cal.Rptr.2d 294.) "The magistrate's determination of probable cause is entitled to deferential review." (People v. Kraft (2000) 23 Cal.4th 978, 1041, 99 Cal.Rptr.2d 1, 5 P.3d 68.)

"In determining whether an affidavit is supported by probable cause, the magistrate must make a `practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.] The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances. [Citation.]" (Fenwick & West v. Superior Court, supra, 43 Cal.App.4th at p. 1278, 51 Cal.Rptr.2d 294.)

"Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched." (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554, 86 Cal.Rptr.2d 89.) "Probable cause must attach to each place to be searched. [Citations.] Thus, an affidavit for a search warrant must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place. [Citations.] A statement that the affiant `"has cause to suspect and does believe"' that the evidence is located at the targeted premises is insufficient." (Fenwick & West v. Superior Court, supra, 43 Cal. App.4th at pp. 1278-1279, 51 Cal.Rptr.2d 294.)

The affidavit must establish a nexus between the criminal activities and the place to be searched. (People v. Hernandez (1994) 30 Cal.App.4th 919, 924, 35 Cal.Rptr.2d 916.) "The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination." (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232, 52 Cal.Rptr.2d 366.) However, an affidavit based on mere suspicion or belief, or stating a conclusion with no supporting facts, is wholly insufficient. (Illinois v. Gates (1983) 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527.)

A sufficient nexus is established for the search of a residence when a target sells controlled substances from the residence. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1206, 275 Cal.Rptr. 729, 800 P.2d 1159.) This is so whether or not the target is the owner or occupier of the residence. (People v. Fernandez (1989) 212 Cal.App.3d 984, 989, 261 Cal.Rptr. 29; People v. Hernandez (1974) 43 Cal.App.3d 581, 585, 118 Cal.Rptr. 53; cf. People v. Tuadles (1992) 7 Cal.App.4th 1777, 1785, 9 Cal.Rptr.2d 780.) The right of access to the residence leads to a reasonable inference that the seller of controlled substances will store the controlled substances at the residence. The same rule applies to a business if the target is an owner or employee of the business. (Ybarra v. Illinois, supra, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238.) The right of access to the business leads to a reasonable inference that the seller of controlled substances will store the controlled substances at the business. A nexus is also established between a business open to the public and a nonemployee or nonowner target if there is reason to believe the target is storing controlled substances on the premises. (Chavez-Quintanilla v. United States (D.C.2002) 788 A.2d 564, 568 [street dealer of cocaine, who was not an owner or employee of a convenience store, went inside a convenience store in order to obtain the cocaine sold to informant].)

The question presented in this case concerns the sale of controlled substances from a business establishment open to the public by a target with no apparent connection, other than as a patron, to the business establishment. The target was not an owner or employee of the business establishment appeared to have had no other connection to the business establishment, and may have been only a regular patron. There are no facts suggesting that the target stored controlled substances at the business establishment. The parties have presented no authority on this precise issue and it appears to be one of first impression in California. Indeed, we have been unable to...