People v. Lucatero

• Decision Date: 15 September 2008
• Docket Number: No. F053221.,F053221.
• Citation: 166 Cal.App.4th 1110,83 Cal. Rptr. 3d 364
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LUCATERO, Defendant and Appellant.

166 Cal.App.4th 1110

83 Cal. Rptr. 3d 364

THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LUCATERO, Defendant and Appellant.

No. F053221.

Court of Appeals of California, Fifth District.

September 15, 2008.

As modified October 8, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, Acting P. J.

A police officer, acting on information given to him by an untested informant, posed as a prospective home buyer in order to go with a real estate agent inside a home that was listed for sale. While inside, the officer was able to corroborate details given to him by the informant and, armed with this information, later to obtain a warrant enabling him to search the home for drugs. He did not tell the real estate agent his real reason for wanting to see the home. Based on the totality of the circumstances, we conclude there is no violation of the Fourth Amendment and affirm the judgment.

PROCEDURAL AND FACTUAL HISTORIES

On August 18, 2006, Porterville police officers arrested a man who was found to be in possession of over one ounce of methamphetamine. The man agreed to provide information to the police as a confidential informant. He told the officers that he obtained the drugs at a home located on Larson Street. The informant described the house as pinkish in color, with a detached garage on the west side of the lot. There was a green Nissan Altima in the garage. The informant said he saw two large white plastic bags in the trunk containing about four pounds of methamphetamine. The house was vacant, but the informant said there was an unknown Hispanic male sleeping in the garage in a sleeping bag located on a wooden shelf.

Detective Michael Benas, acting on the information given by the informant, went to Larson Street and found the house. He observed a "`for sale'" sign on the property. He called the listed realtor and "acted interested in the house." The realtor agreed to meet Benas there and show him the house. Inside, Benas confirmed the presence of the green Altima and the sleeping bag on a wooden shelf.

Armed with this information, the detective sought and obtained a search warrant. Appellant Alberto Lucatero and another man were present when the residence was searched. The officers found drugs hidden in the attic and in the Altima in a compartment where the passenger airbag was supposed to be located. They also found methamphetamine in a black duffelbag just inside the back door. The bag contained an identification card belonging to Lucatero. Lucatero had one gram of methamphetamine on his person. The owner of the house said he was in the process of selling the house and that Lucatero was staying there to protect against break-ins.

Lucatero was charged with possession of methamphetamine for sale and use of a false compartment with the intent to conceal a controlled substance. The information alleged that Lucatero had served a prior prison term, had been convicted of a prior strike offense, and had possessed at the time of his arrest more than 28.5 grams of methamphetamine for sale.

The warrant and supporting affidavit were sealed to protect the identity of the confidential informant. Lucatero filed a motion to traverse and quash the search warrant and to unseal the warrant and affidavit pursuant to People v. Hobbs (1994) 7 Cal.4th 948 [30 Cal.Rptr.2d 651, 873 P.2d 1246]. The motion alleged generally that the warrant lacked probable cause and the evidence discovered was the tainted product of a search conducted under the authority of an invalid warrant. The trial court conducted an in camera review and concluded that there was sufficient probable cause to support the warrant, but ordered that the affidavit supporting the warrant be released to Lucatero. The ruling on the motion was stayed for one week to allow the prosecutor to decide whether to release the information to Lucatero or dismiss the charges. The prosecutor decided to go forward and the court ordered the warrant and its affidavit unsealed. A copy was provided to Lucatero.

On April 26, 2007, Lucatero entered a plea of no contest to the offenses as charged and admitted the allegations of the information. Pursuant to the indicated sentence, Lucatero was sentenced to a total term of five years eight months in state prison.

DISCUSSION

I. Motion to suppress

On appeal from the denial of a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence and exercise our independent judgment in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729]; see also Ornelas v. United States (1996) 517 U.S. 690, 699 [134 L.Ed.2d 911, 116 S.Ct. 1657].)

(1) To be constitutional, the entry of a residence by police absent emergency circumstances must be under the authority of a search warrant, based on a valid consent or be incident to a lawful arrest. (People v. Mesaris (1970) 14 Cal.App.3d 71, 74 .) In this case, law enforcement entered the house twice. The first entry occurred when Detective Benas entered with the realtor hoping to confirm the information given to him by the untested confidential informant. (2) The information obtained from an untested confidential information must be independently corroborated. (People v. Clark (1992) 3 Cal.4th 41, 141 [10 Cal.Rptr.2d 554, 833 P.2d 561]; People v. Johnson (1990) 220 Cal.App.3d 742, 749 , disapproved on other grounds in People v. Camarella (1991) 54 Cal.3d 592, 606, fn. 6 [286 Cal.Rptr. 780, 818 P.2d 63] [corroboration sufficient if police investigation uncovered probative indications of criminal activity along lines suggested by informant; even seemingly innocent activity can provide sufficient corroboration if informant casts activity in suspicious light].) The second entry occurred when Benas entered on the authority of the search warrant, issued in part based on information obtained in the first entry.

(3) Lucatero contends that the first entry was unlawful because it was based on a ruse. Since there is no independent source of corroborating information to support the information given by the untested informant and no independent information to support probable cause, the validity of the warrant, and therefore the second entry, rests entirely on the legality of the first entry. A search warrant obtained upon information acquired by an illegal search is invalid, unless the prosecution can show that no information gained from the illegal entry affected the magistrate's decision to grant the warrant. In other words, the probable cause supporting the warrant's issuance must be from an independent source, not a product of the unlawful activity. (See People v. Weiss (1999) 20 Cal.4th 1073, 1080-1082 [86 Cal.Rptr.2d 337, 978 P.2d 1257]; People v. Chapman (1984) 36 Cal.3d 98, 113 [201 Cal.Rptr. 628, 679 P.2d 62].) We must therefore start our analysis with the first entry.

Lucatero claims People v. De Caro (1981) 123 Cal.App.3d 454 (De Caro), which involves similar facts, controls. In De Caro, law enforcement arranged to have an insurance investigator, posing as a potential buyer, enter a house to look for items previously reported stolen. The investigator saw the items that had been allegedly stolen in the house, and this information was included in the application for a search warrant. One of the contentions on appeal from the subsequent conviction was that the search warrant and its evidentiary harvest should have been suppressed because the investigator, like Detective Benas, used the ruse of being a potential home buyer to gain entry. The prosecution countered that the entry was consensual because the homeowner had authorized public entry into the house by listing the house for sale. The court rejected this argument, however, concluding that, by listing the house for sale, the homeowner's invitation to enter the house was only for a limited and specific purpose, that of permitting the real estate agent to bring in bona fide potential purchasers. The court reasoned that the homeowners retained a legitimate expectation that their home would not be entered by an agent of the police, absent compulsion by the legal process. (Id. at p. 466.) Since the investigator was not a bona fide potential buyer, the court concluded the search was by ruse and therefore unlawful.

The Attorney General concedes that De Caro governs this case, but argues that the second entry is valid under the good faith exception to the exclusionary rule established in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], because a reasonable officer could not have determined that the first entry was illegal and that Detective Benas did not hide any of the facts from the magistrate issuing the warrant.¹

(4) We reject the concession that De Caro controls and disagree with its observations concerning the legality of the entry. An observation unnecessary to the decision of a court does not constitute binding precedent. (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].) The De Caro court decided the case by determining there was independent evidence to support the search warrant regardless of whether the insurance investigator's ruse was lawful. (De Caro, supra, 123 Cal.App.3d at p. 465; see also People v. Weiss, supra, 20 Cal.4th at p. 1082 [reviewing court must uphold warrant if, after excising all tainted information, remaining information in warrant application establishes probable cause].) Given that the warrant was supported by...