People v. Madrid, H008973

• Decision Date: 10 July 1992
• Docket Number: No. H008973,H008973
• Citation: 7 Cal.App.4th 1888,9 Cal.Rptr.2d 798
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Alicia F. MADRID, Defendant and Respondent.

Page 798

9 Cal.Rptr.2d 798

7 Cal.App.4th 1888

The PEOPLE, Plaintiff and Appellant, v. Alicia F. MADRID, Defendant and Respondent.

No. H008973.

Court of Appeal, Sixth District, California.

July 10, 1992.

Review Denied Oct. 16, 1992.

Lori Klein, Santa Cruz, by appointment of the Sixth District Appellate Program, for defendant and respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., for plaintiff and appellant.

STONE (WM. A.), ^* Associate Justice.

Following her waiver of preliminary hearing, defendant Alicia F. Madrid was accused by information of one count of possession for sale of cocaine (Health & Saf.Code, § 11351) and one count of possession of cocaine (Health & Saf.Code, § 11350). The superior court entered an order of dismissal after granting defendant's motion to suppress evidence pursuant to Penal Code section 1538.5. The People appeal from the dismissal on the ground that defendant lacked standing to challenge the legality of an automobile search which, in turn, supplied probable cause for issuance of a warrant authorizing the search of her home. (Pen.Code, §§ 1238, subds. (a)(7), (c), 1385, subd. (a).) For reasons set forth below, we reverse.

Facts

On May 5, 1991, Monterey County Deputy Sheriff Jim Miller saw a Ford Bronco parked at the dead end of a rural road. There were four men seated in the car, one of whom was later identified as defendant's husband, Manuel Mendoza. As Deputy Miller drove toward the vehicle he could not detect any mechanical problems nor could he detect any unlawful activity. When the deputy stopped his patrol car behind the Bronco, he saw the right front passenger turn around. Upon seeing the deputy, this individual said something to the driver who immediately began making "some kind of movements." The deputy was unable to discern what the driver was doing. The deputy exited his vehicle, approached the Bronco, and opened the driver's door. After he did so, he saw an open container of beer on the front floorboard. Deputy Miller ordered the occupants to leave the vehicle and step back to his patrol car. He then searched the passenger compartment for additional open containers. During the course of his search, the officer discovered "drugs" on the back floorboard.

Deputy Miller initially testified that he approached the car because he did not know "what they [were] doing out there. They could be up to a number of things." The officer admitted, however, that when testifying about this incident at the preliminary hearing of a companion case, he testified that he had checked the car out of "curiosity."

In an affidavit submitted in support of a search warrant for defendant's residence, the affiant stated that Deputy Miller noticed the occupants making suspicious movements as he approached the vehicle. It appeared to the officer that the "subjects were attempting to conceal something in the rear [floorboard] area of the vehicle. [p] Deputy Miller contacted [the driver] and found an open container of beer near [his] feet. Deputy Miller also noticed other cans of beer inside the vehicle and asked all four subjects to exit the vehicle so that he ... could retrieve the other cans of beer. After the four subjects got out of the vehicle, and as Deputy Miller was retrieving some cans of beer from the rear seat area ..., Deputy Miller noticed a white powdery substance thrown on the [floorboard] area along with a plastic baggy. This was the same area where Deputy Miller noticed [three occupants] acting suspicious[ly], as if they were hiding something in this area. Deputy Miller examined the white powder which was on the [floorboard] further, and recognized the powder to be cocaine.... [p] Deputy Miller formed the opinion that the cocaine and plastic baggy found in the vehicle were consistent with the storage and transportation of cocaine and therefore placed all four subjects under arrest...."

According to the affidavit, the four occupants of the vehicle were searched, as was the car itself. Over $1800 in cash was found on the four men and a subsequent search of the Bronco resulted in the seizure of one-quarter pound of cocaine, discovered in the center console of the car.

The affiant concluded that the cocaine was possessed for sale based on the quantity of the cocaine seized, the currency found in possession of the occupants, the absence of ingesting paraphernalia, and the fact that none of the suspects was found to be under the influence of cocaine.

Based on the information contained in the search warrant affidavit, the magistrate issued a search warrant for the residence of Manuel Mendoza. Upon execution of the warrant, police apparently seized the evidence (cocaine and paraphernalia) which served as the basis for the present charges. It appears that defendant shared the searched residence with her husband, Manuel Mendoza. ¹

Procedural History

Although there was some mention of Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, defendant's argument for suppression in the trial court appears to be premised solely upon the "fruit of the poisonous tree" doctrine pronounced in Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. ² Defendant essentially argued that she had standing to challenge the legality of the search warrant on the ground that information establishing probable cause for the warrant was tainted because it was obtained as a result of the unlawful search of the Ford Bronco. Since material facts establishing the illegality of the initial search were omitted from the affidavit, the warrant was tainted and invalid. ³

The People responded by arguing (1) defendant had failed to establish that the affiant deliberately omitted or misstated material facts; ⁴ and (2) defendant had no standing to assert the illegality of the antecedent search as a ground for contesting the sufficiency of probable cause supporting the warrant.

The trial court issued a written decision granting defendant's motion to suppress evidence. The court made factual findings regarding the initial search and ruled that the search was unconstitutional. The court further found that the antecedent search, along with additional facts supplied by the affidavit (i.e., the subsequent search of the car) had served as the basis of probable cause for issuance of the search warrant. Noting that the "details of Deputy Miller's opening the car door in order to make his observations" were omitted from the search warrant affidavit, the court found that the magistrate was thereby "deprived of the necessary facts to conclude, as this court has, that the search was unlawful."

On the question of defendant's standing, the court reasoned that had the omitted and material facts been included in the affidavit, any reasonable magistrate would have concluded that the search of the car was unlawful and thus would have refused to authorize issuance of the warrant. Any attempt by the officer to obtain authorization of the warrant on the ground that the "[objects] of the search warrant lack[ed] standing to object to the obviously illegal search" would have been soundly rejected by the magistrate: "The point is, once the magistrate concludes the search is illegal, that is for all practical purposes, the end of the matter."

Relying on this court's decision in People v. Brown (1989) 210 Cal.App.3d 849, 260 Cal.Rptr. 293, the trial court concluded that "since the search warrants in question are based entirely on the illegal search, probable cause no longer exists for issu[uance] of the warrants."

Discussion

The People argue, as they did below, that defendant lacks standing to contest the search of the Ford Bronco and thus is equally barred from challenging information in the search warrant affidavit procured as a result of that search, even if the initial search was unlawful.

Defendant, on the other hand, asserts she has standing to challenge the search warrant affidavit because: (1) the warrant contained a material omission; (2) the magistrate would not have issued the warrant if the affidavit had contained a complete account of the illegal vehicle search; and (3) defendant has standing to challenge the search of the Bronco (a) as a member of an alleged conspiracy to possess and sell cocaine, or (b) by virtue of her marriage to Mendoza. I. Standing

Since the adoption, by voter initiative, of article 1, section 28, subdivision (d) of the California Constitution, otherwise known as Proposition 8, the courts of this state may exclude evidence seized pursuant to an unlawful search or seizure "only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment." (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744.) In making this determination, we are bound by decisions of the United States Supreme Court (id. at p. 882, 210 Cal.Rptr. 631, 694 P.2d 744) and, of course, by California Supreme Court cases interpreting those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) Although decisions of lower federal courts are not binding precedent, they are persuasive authority. (People v. Neer (1986) 177 Cal.App.3d 991, 999, 223 Cal.Rptr. 555.)

Prior to the adoption of section 28(d), the California Supreme Court recognized an independent basis for exclusion under article I, section 13 of our state constitution (In re Lance W., supra, 37 Cal.3d at p. 879, 210 Cal.Rptr. 631, 694 P.2d 744) and thus accorded "standing to object to the introduction of evidence seized in violation of the rights of a third person...." (Ibid.) However, our vicarious exclusionary rule did not survive the passage of Proposition 8 as a basis for exclusion of evidence. (Ibid.) Accordingly, we must look to federal...