People v. Pressey

• Decision Date: 16 October 2002
• Docket Number: No. A097336.,A097336.
• Citation: 126 Cal.Rptr.2d 162,102 Cal.App.4th 1178
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sandy L. PRESSEY, Defendant and Appellant.

126 Cal.Rptr.2d 162

102 Cal.App.4th 1178

The PEOPLE, Plaintiff and Respondent, v. Sandy L. PRESSEY, Defendant and Appellant.

No. A097336.

Court of Appeal, First District, Division 4.

October 16, 2002.

Richard C. Neuhoff, San Francisco, Barbara A. Zuras, First District Appellate Project, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, for Respondent.

KAY, P.J.

Appellant Sandy L. Pressey pled no contest to possession of methamphetamine for sale (Health & Saf.Code, § 11378) and misdemeanor driving under the influence of drugs (Veh.Code, § 23152, subd. (a)), and was placed on probation. He contends that the court erred in denying his motion to suppress evidence. The principal issue is whether probable cause to believe that a person uses illegal drugs automatically provides probable cause for a warrant to search the person's home for those drugs. We hold that it does not.

I. RECORD

Appellant's motion sought to quash a warrant that was issued to search his residence; the motion was based entirely on the warrant and the supporting affidavit of Napa Police Officer Brian Campagna. Campagna stated that he and Sergeant Donaldson were riding in an unmarked police vehicle around 4:30 p.m. on April 11, 2001, when they noticed appellant driving erratically and requested a marked police car to pull him over. Officer Rosin responded and stopped appellant. When Rosin and Campagna approached the car, they detected a strong odor of marijuana. Rosin determined that appellant was driving under the influence of marijuana and a central nervous system stimulant, and placed him under arrest. Rosin searched appellant and found 1.5 grams of methamphetamine in a glass vial inside in a fanny pack appellant wore around his waist. Rosin found a marijuana cigarette in an ashtray in the car. Appellant told Rosin that he lived at an address on Villa Lane in Napa, which was listed as his residence in Department of Motor Vehicles records.

Two hours after the arrest, Campagna obtained a warrant to search appellant's residence for methamphetamine, marijuana,' and property associated with their use. Campagna indicated in his affidavit that he had been a police officer for five years, and had worked the last two and half years as an undercover narcotics agent. He described his drug enforcement training and experience, and stated: "It has been my experience and the experience of other experienced narcotics investigators with whom I have spoken that persons involved in the use and transportation of methamphetamine and marijuana will normally have most if not all of [various enumerated] items of evidence [associated with use, storage, and transportation of methamphetamine and marijuana] within their temporary or permanent residences, businesses, vehicles, storage areas, storage containers or on their persons.... [¶] It has been my training and experience that users of controlled substances and narcotics will keep additional quantities of controlled substances and narcotics at their residence in addition to what they carry on their person's [sic ] while away from their residence. Controlled substance and narcotic users will keep quantities of controlled substances and narcotics at their residence so they always have a source to satisfy their addiction or habit."

The warrant was executed a few minutes after it was issued; the police found 10.3 grams of methamphetamine and 20.2 grams of marijuana packaged in small plastic baggies, measuring scales, $1,335 in cash, and various items of drug paraphernalia at appellant's residence.

The motion to suppress was heard and denied by the judge who had issued the warrant. Appellant maintained that the warrant affidavit did not establish probable cause, and that the warrant was not sought in good faith. The court found that probable cause was demonstrated, and did not reach the good faith issue.

II. DISCUSSION

A. Probable Cause

Appellant renews his argument that the search warrant was issued without probable cause. The question is "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 [the] place [to be searched]." ((IIlinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527; People v. Camarella (1991) 54 Cal.3d 592, 601, 286 Cal.Rptr. 780, 818 P.2d 63.) The magistrate's determination of probable cause is entitled to deferential review, but there must have been a "substantial basis" for the finding that the property sought was "`probably present'" on the premises. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041, 99 Cal.Rptr.2d 1, 5 P.3d 68.)

The finding of probable cause in this case was based on two circumstances: (1) appellant's arrest, during a traffic stop, for simple possession of controlled substances, as opposed to possession for sale; and (2) the opinion of an experienced officer that drug users with controlled substances on their person or in their car are likely to have more of those substances where they live. We agree with appellant that these two circumstances did not establish probable cause to search his residence, and that the court's finding to the contrary cannot be sustained.

The issue presented is evidently one of first impression in California. Pertinent considerations were identified in People v. Gonzalez (1990) 51 Cal.3d 1179, 1206, 275 Cal.Rptr. 729, 800 P.2d 1159: "Mere evidence of a suspect's guilt provides no cause to search his residence. [Citation.] However, `[a] number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items.'" (See ibid, [tip that suspect was selling drugs at his residence and controlled buy in backyard "permitted a logical inference that narcotics were probably being kept on the premises"].) This Court and others have observed that the magistrate may "`legitimately consider'" the opinions of experienced narcotics officers in deciding whether there is probable cause to search a suspect's home for illegal drugs. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1555, 86 Cal.Rptr.2d 89; People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232, 52 Cal. Rptr.2d 366; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784, 9 Cal.Rptr.2d 780.) It has also been noted that the circumstances of an arrest "can, without more, support a magistrate's probable cause finding that the culprit's home is a logical place to search for specific contraband." (People v. Koch (1989) 209 Cal.App.3d 770, 779, 257 Cal.Rptr. 483, disapproved on another point in People v. Weiss (1999) 20 Cal.4th 1073, 1083, 86 Cal.Rptr.2d 337, 978 P.2d 1257; see also People v. Johnson (1971) 21 Cal.App.3d 235, 245, 98 Cal.Rptr. 393.)

Cases throughout the country have considered whether an officer's opinion, or a logical inference, is sufficient to provide probable cause to search a residence for drugs where there is evidence that the occupant is a drug dealer, but no direct evidence of illegal activity connected with the home. (See generally State v. Thein (1999) 138 Wash.2d 133, 977 P.2d 582, 587 588; 2 LaFave, Search and Seizure (3d ed.1996) § 3.7(d), pp. 377-381.) There is a split of authority on the point. Some cases hold that an opinion or logical inference is not enough, and that there must be some additional facts concerning the residence, "such as that the seller went to his home prior to the sale, or that the sale occurred near the home, which would support the inference that the supply is probably located there. But in more recent times many courts have been disinclined to require such facts in the particular case to support that inference. Rather, it is commonly held that this gap can be filled merely on the basis of the affiant-officer's experience that drug dealers ordinarily keep their supply, records and monetary profits at home." (2 LaFave, supra, § 3.7(d), pp 378-379, fns. omitted; see also State v. Thein, supra, at pp. 587-588 [noting split of authority, but venturing that "[m]ost" courts "require that a nexus [to the home] ... be established by specific facts; an officer's general conclusions are not enough"].)

The drug dealer issue has arisen in the California Courts of Appeal, as well as the federal circuits and other states. The California cases include: People v. Cleland (1990) 225 Cal.App.3d 388, 392-393, 275 Cal.Rptr. 126 (seizure of baggies of marijuana apparently packaged for sale from defendant's person, plus officer's opinion that additional contraband would likely be found at defendant's residence justified warrant for search of residence); People v. Koch, supra, 209 Cal.App.3d at pp. 778-781, 257 Cal.Rptr. 483 (evidence of drug dealing found during traffic stop, plus officer's opinion "that because defendant was a trafficker in illegal drugs his residence was a likely depository for more contraband or evidence" provided probable cause for search of home, but exigent circumstances for warrantless entry were lacking); People v. Aho (1985) 166 Cal.App.3d 984, 991-993, 212 Cal.Rptr. 686 (evidence that defendant was selling drugs, his prior drug arrests and convictions, and officer's opinion that "persons dealing in controlled substances and stolen property will frequently secrete contraband in closed or locked containers and other closed or locked hiding places within their residence" created probable cause for search of residence); and People v. Johnson, supra, 21 Cal.App.3d at pp. 242-246, 98 Cal. Rptr. 393 (defendant was arrested on premises of large scale drug operation, and officer opined that dealers keep additional drugs at or near their residence for immediate sale; "if additional evidence other than the ......