People v. Ianniello

• Court: California Court of Appeals
• Writing for the Court: MURRAY
• Decision Date: 30 October 2013
• Docket Number: C068421
• Citation: People v. Ianniello, C068421 (Cal. App. Oct 30, 2013)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL IANNIELLO et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL IANNIELLO et al., Defendants and Appellants.

C068421

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)

Filed: October 30, 2013

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF100987)

Defendants Michael Ianniello and Carolyn Grimes pleaded guilty to possession of pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383.5, subd. (b)(1)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and were placed on probation. They appeal the denial of a motion to suppress evidence (Pen. Code, § 1538.5)¹ and denial of Proposition 36 probation for nonviolent drug possession offenses (§ 1210.1). Defendants contend (1) the affidavit insupport of a search warrant lacked probable cause, and (2) they were entitled to Proposition 36 probation because their crime was a nonviolent drug possession offense.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 2010, around 10:50 a.m., law enforcement officers executed a search warrant at defendants' home to search for evidence of a methamphetamine lab.² Upon entering, the officers noticed a strong chemical smell and saw items associated with a methamphetamine lab. They obtained a second search warrant and seized items including a book entitled The Whole Drug Manufacturer's Catalog, which contained information on how to manufacture methamphetamine; a substance later identified as methamphetamine; a portable electric burner; a bottle of hydrogen peroxide; a can of acetone; a bottle of drain opener; and "some" boxes of pseudoephedrine tablets. Ephedrine can be extracted from pseudoephedrine tablets and used to make methamphetamine. Detectives also saw several plastic soda bottles, containing unknown liquids, including one that contained a bilayered liquid solution commonly associated with manufacturing methamphetamine, and several glass jars that also contained unknown liquids.

On October 29, 2010, the prosecutor filed an information charging defendants with manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383.5, subd. (b)(1)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

Defendants moved to suppress all evidence (§ 1538.5) on the grounds that the search warrant was not supported by probable cause, the execution of the warrant wasunreasonable, and the indefinite seizure of the residence was unconstitutional. Defendants also moved to set aside the manufacturing count for lack of evidence. (§ 995.)

The suppression motion attacked the deputy sheriff's affidavit of probable cause that was used to secure the April 2, 2010 search warrant. The affiant, Sheriff's Detective Robert Brokenbrough, described his extensive training and experience as a sheriff's deputy and detective since 1991, credentials which are not challenged by defendants. The affiant's statement of probable cause included the following:

Approximately two years before the April 1, 2010 affidavit, Brokenbrough was assigned to the Yuba/Sutter Narcotics Enforcement Team (NET-5) and received information from a "Confidential Informant" (CI), who "stated there was a possible methamphetamine lab at [defendants' residence and] that he/she knew that 'Michael' and 'Carolyn Grimes' lived at the residence. [¶] CI said he/she was willing to show [Brokenbrough] where Michael and Carolyn lived. CI provided [Brokenbrough] with the directions and pointed to [the address]. CI said he/she did not know the apartment number or letter, but said the apartment was the first apartment near the front of the apartment complex.³ [¶] CI said that he/she had been inside the apartment and he/she had seen 'a lot' of pills and blister packs on the counter. CI said that he/she was aware that Michael and Carolyn have other people pick up pseudoephedrine pills and Michael and Carolyn use these pills to manufacture methamphetamine. CI was unable to provide [Brokenbrough] with any further information. NET-5 agents conducted surveillance at the residence; however, no additional leads were obtained. [¶] Soon after giving [Brokenbrough] the above information, CI was deactivated and no longer used as an informant, and this case remained inactive."

Brokenbrough's affidavit further stated that a records check confirmed defendants lived at the residence. Neither was on probation nor had any outstanding warrants. Law enforcement officers had had two prior contacts with Carolyn Grimes, the last being in 2000. In April 1999, Grimes was convicted of Health and Safety Code section 11377, subdivision (a), and sentenced to three years' probation and one day in jail. In November 2000, she was again convicted of Health and Safety Code section 11377, subdivision (a). She was sentenced to three years' probation and a fine. Ianniello did not have any drug convictions.

On December 21, 2009, Brokenbrough and another agent went to "different pharmacies" in the Yuba-Sutter area and obtained their Pseudoephedrine (PSE) Schedule V Transaction Logs for a one-month period from November 21 through December 21, 2009. The logs showed Grimes had produced her driver's license and provided her signature and purchased eight boxes of PSE pills between November 26 and December 17, 2009, as follows:

November 26 - one package containing forty-eight 60-mg. pills, 2.88 grams,

December 2 - two packages containing forty-eight 30-mg. pills, 2.88 grams,

December 4 - one package containing forty-eight 60-mg. pills, 2.88 grams,

December 4 - one package containing forty-eight 60-mg. pills, 2.88 grams,⁴

December 16 - two packages containing forty-eight 30-mg. pills, 2.88 grams, and

December 17 - one package containing forty-eight 60-mg. pills, 2.88 grams.

On March 29, 2010, Brokenbrough went to one Wal-Mart and two Walgreens pharmacies in Yuba City and obtained their PSE logs for the period from February 1, 2010 through March 28, 2010. Other pharmacies were not checked. The logs showedGrimes provided her driver's license and signature and bought seven boxes of PSE pills as follows:

February 9 - one package containing forty-eight 60-mg. pills, 2.88 grams,

February 9 - two packages containing forty-eight30-mg. pills, 2.88 grams,

February 10 - two packages containing forty-eight 30-mg. pills, 2.88 grams, and

March 28 - two packages containing (count unknown) 30-mg. pills, 2.88 grams.

Brokenbrough further attested: "On 03-30-10, I spoke with the pharmacist at CVS Pharmacy in Yuba City. I provided the pharmacist with the name of the [PSE] packages, dates and the amounts purchased by Carolyn Grimes. The pharmacist told me that the normal dosage for a 30[-mg. PSE] pill is four pills within a 24[-]hour time period and the normal dosage for a 60[- mg. PSE] pill is two pills within a 24-hour time period. The pharmacist said that a person who suffers extreme allergies would use two or possibly three boxes of [PSE] pills in a one[-]month time frame."⁵

Brokenbrough reviewed the U.S. Department of Justice Drug Enforcement Administration Office of Diversion Control Combat Meth Act of 2005, which states, "Your customer cannot buy more than 9 grams in a 30-day period of [PSE]." (Boldface and underlining in affidavit.)

Brokenbrough also attested he reviewed this case with Special Agent Mitchell Fox of the California Department of Justice, Bureau of Narcotic Enforcement. Brokenbrough set forth Fox's expertise in the investigation of methamphetamine manufacturing.Defendant does not challenge Fox's expertise. Fox opined "that Carolyn Grimes was buying [PSE] pills in excess and she was likely using the pills to manufacture methamphetamine."

In their suppression motion, defendants argued, (1) the informant's allegations were entitled to no weight since there was no information the informant was "anything other than a garden variety criminal" whose allegations were not verified, (2) the information was stale, (3) Grimes's recent purchases of cold medication did not provide probable cause, and (4) law enforcement's sealing of the residence for five months was excessive. On the first point, defendants argued: "The defense believes that the informant was/were criminals and that is how law enforcement contacted the informant. The informant could not have been as conversant with methamphetamine as the affiant describes unless he/she frequented the criminal underworld. This information including the prior criminal record should have been provided to the magistrate. The reason for the informant's deactivation should have been set forth in the affidavit. If the defense is correct, the informant is playing both sides of the street. Unless the informant has provided information that has been verified since his/her/their last arrest they are merely criminal informants, not confidential reliable informants. Moreover, the information was stale when it was set forth in the affidavit two years later."

At the hearing on February 18, 2011, the judge began by noting he was the magistrate who had issued the warrant.

After hearing oral argument, the trial court denied the suppression motion, stating the informant's information "was by itself stale and only was important at least to the officer requesting the warrant and to the magistrate, I presume to give some context to the more recent information about the purchase of the [PSE pills]. So the reason why the informant was no longer an informant is really not important because that information by itself does not independently establish probable cause." The court said that, in issuing the warrant, it had considered the...