People v. Tuadles

• Decision Date: 09 July 1992
• Docket Number: No. B043992,B043992
• Citation: 7 Cal.App.4th 1777,9 Cal.Rptr.2d 780
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wilfredo Batoon TUADLES and Jude Jesus Mercado, Defendants and Appellants.

Page 780

9 Cal.Rptr.2d 780

7 Cal.App.4th 1777

The PEOPLE, Plaintiff and Respondent, v. Wilfredo Batoon TUADLES and Jude Jesus Mercado, Defendants and Appellants.

No. B043992.

Court of Appeal, Second District, Division 7, California.

July 9, 1992.

Review Denied Oct. 16, 1992.

[7 Cal.App.4th 1779] Stuart B. Esner, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant Jude Jesus Mercado.

Jolene Larimore, Santa Barbara, under appointment by the Court of Appeal, for defendant and appellant Wilfredo Batoon Tuadles.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., David F. Glassman, Deputy Atty. Gen., and Donald E. DeNicola, Supervising

Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Convicted by jury of possession of marijuana for sale (Health & Saf.Code, § 11359), appellant Mercado challenges the sufficiency of a search warrant affidavit and appellant Tuadles claims the trial court should have instructed, sua sponte, on "innocent possession." We find no error and affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In December 1988 a narcotics officer obtained a search warrant for three residences: Tuadles' apartment, a vacant apartment in the same building beneath the Tuadles' apartment, and appellant Mercado's residence. Pursuant to the warrant marijuana, $5,700 in cash, and narcotic paraphernalia were recovered. Tuadles and Mercado were jointly charged with possession of marijuana for sale. In superior court Mercado moved to suppress marijuana found at his home. ¹ The motion was denied. A jury convicted both appellants.

DISCUSSION

I.

Except for the narrow instructional issue raised by Tuadles, which we separately consider, the events of the trial are irrelevant to this appeal.

Dispositive of Mercado's appeal is a pretrial event, the issuance of a search warrant. If the magistrate correctly found probable cause for its issuance then Mercado's conviction must be affirmed.

A. The Search Warrant Affidavit ²

The magistrate issued a warrant to search appellant's residence (18813 Sabrina Ave., Cerritos, California) based upon the 10-page affidavit of Officer Roberts. We summarize that affidavit.

Officer Roberts had been a Long Beach police officer for seven years and was assigned to that department's drug investigation section. His drug trafficking training and experience consisted of the following: attendance at the Long Beach Police Academy and Department of Justice Narcotics Officers' School where he studied the recognition, packaging, sales, and possession for sale of drugs; 200 hours of additional advanced narcotic trafficking training; specialized training by the Department of Justice in the recognition of clandestine PCP and methamphetamine laboratories; work as an undercover officer, purchasing narcotics and becoming familiar with its sale and packaging for sale; hours spent with narcotic traffickers and users discussing the safest way to package, conceal, use, and sell narcotics; work with other narcotic experts with whom he discussed narcotic packaging and transfer methods used by traffickers in the Southern California area; teaching the recognition of marijuana in its cultivation and processing stages; testifying as an expert witness regarding the possession, possession for sale and sale of controlled substances; serving dozens of search warrants; and, for the past 10 months exclusively "investigating narcotic traffickers on a national level including smugglers, financiers, and top level distributors."

On November 14, 1988, Officer Roberts received information from a Drug Enforcement Administration [DEA] special agent in North Carolina that a rattan end table shipped from the Philippines had been delivered, apparently by mistake, to Greensboro North Carolina. There, a local police officer intercepted the table and discovered that it contained approximately 12 pounds of marijuana. The table should have been shipped and delivered to Fred Tuadles, 63 East 69th Way, # B, Long Beach, California, 90805. The shipping instructions, in addition to containing the name and address of the intended deliveree, also contained a telephone number: 213-924-2754. A person who identified himself as Fred Tuadles had "made telephone calls [to Greensboro] concerning the whereabouts of the table" and gave 213-924-2754 "for call backs regarding the table."

The DEA agent told Officer Roberts he would ship the table to him so Officer Roberts could arrange "a controlled delivery" to Fred Tuadles.

Officer Roberts ran a computer check and confirmed that a Wilfredo Batoon Tuadles had a California driver's license with a 63 East 69th Avenue, Long Beach address and that utilities at that address were in his name.

Officer Roberts contacted the General Telephone Company concerning telephone number 213-924-2754 and learned it was an unpublished number. He then obtained a search warrant ³ for subscriber information and was informed the number returned "to an address of 18813 Sabrina Avenue, Cerritos, California, 90701" and the subscriber was Jude Mercado.

On November 15, 1988, Officer Roberts went to the Tuadles apartment house and saw a Mazda pickup in the driveway. He made a record check of its license number. It was registered to Wilfredo B. Tuadles or Pepito S. Llido, 11214 Linares Street, San Diego, California.

During the week of November 28--December 2, 1988, Officer Roberts received the rattan end table. In it was a vehicle inter-tube containing approximately 12 pounds of marijuana. He photographed, specially sprayed, and reboxed the table and contents.

On December 5, 1988, another Officer posing as a United Parcel Service delivery driver attempted to deliver the table. As he approached apartment B an unidentified man, who appeared to reside in apartment B, told him that Fred Tuadles no longer lived there, that he had moved to apartment A, directly below. He also stated that Tuadles owned a factory in San Diego and returned from work at about 6:30 p.m. The "UPS" officer told the man he would return tomorrow, December 6, and attempt delivery.

On December 6, 1988, Officer Roberts again checked the utility records for 63 East 69th Way. They showed Wilfredo Tuadles as the account holder and apartment A as vacant.

The affidavit also stated that according to Officer Roberts' training and experience, large scale drug traffickers maintain records of their transactions including pay and owe records, customer lists with addresses and phone numbers, and similar identifying information concerning confederates. Further, that "it is common for these large scale organizations to use various locations to serve different functions." One location may be used to store lesser quantities of narcotics and/or money, another to meet customers, a third to "stash" narcotics. Such separate locations also serve to avoid detection by law enforcement and theft by other narcotic traffickers or users.

Finally, the affidavit contained Officer Roberts' opinion that "[b]ased on the ... facts ... in this affidavit [he] believe[d] that the residence at 63 East 69th Way, Apartment # B, Long Beach, California and at 18813 Sabrina Avenue, Cerritos, California are being used to store contraband, money, paraphernalia, and drug records."

B. Legal definition of probable cause

As we stated in People v. Terrones (1989) 212 Cal.App.3d 139, 146, 260 Cal.Rptr. 355: "The standard by which a magistrate must determine whether an affidavit is sufficient to establish probable cause ... is explained in Illinois v. Gates (1983) 462 U.S. 213, 238-239, 103 S.Ct. 2317 2332, 76 L.Ed.2d 527: 'The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " (Emphasis added.)

Probable cause "is a fluid concept-turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." (Illinois v. Gates (1983) 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527.) It is less than proof beyond a reasonable doubt (id. at p. 235, 103 S.Ct. at p. 2330); less than a preponderance of the evidence (ibid.); and less than a prima facie showing (ibid.).

Probable cause is a "particularized suspicion" (Texas v. Brown (1983) 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502); it is "facts that would lead a man of ordinary caution ... to entertain a strong suspicion that the object of the search is in the particular place to be searched" (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564, 128 Cal.Rptr. 641, 547 P.2d 417; emphasis added.); "probable cause requires only a ... substantial chance." (Illinois v. Gates, supra, 462 U.S. at p. 243, fn. 13, 103 S.Ct. at p. 2335, fn. 13.)

C. Probable Cause: role of magistrate

"The essential protection of the warrant requirement of the Fourth Amendment" relies upon "a neutral and detached magistrate." (Illinois v. Gates, supra, 462 U.S. at p. 240, 103 S.Ct. at p. 2333.) The magistrate acts as a trier of fact in appraising and weighing the affidavit. (People v. Stout (1967) 66 Cal.2d 184, 193, 57 Cal.Rptr. 152, 424 P.2d 704.) He may reject an affidavit as not credible or not sufficient. He may also "before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce...." (Pen.Code, § 1526.)

"A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " (Illinois v. Gates, supra, 462 U.S. at p. 236, 103 S.Ct. at p. 2331.)

D. Standard of review

In reviewing the issuance of a search warrant "[a]ll we are ... asked to decide is whether the [magistrate] acted...