People v. Tuadles

7 Cal. App. 4th 1777, 9 Cal. Rptr. 2d 780, 92 Daily Journal DAR 9650, 92 Cal. Daily Op. Serv. 6149, 1992 Cal. App. LEXIS 878

• Court: California Court of Appeal
• Decided: July 9, 1992
• Docket: B043992
• Status: Published

Opinions

Opinion

WOODS (Fred), J.

Convicted by jury of possession of marijuana for sale (Health & Saf. Code, § 11359), appellant Jude Jusus Mercado challenges the sufficiency of a search warrant affidavit and appellant Wilfredo Batoon 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’s apartment, a vacant apartment in the same building beneath Tuadles’s apartment, and appellant Mercado’s residence. Pursuant to the warrant marijuana, $5,700 in cash, and narcotics 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 affidavit²

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 phencyclidine (POP) 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 warrant³ 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 inner 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 (UPS) 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 driver/” 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 “[bjased 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 [76 L.Ed.2d 527, , 103 S.Ct. 2317]: ‘The task of the issuing magistrate is simply to make a practical, commonsense 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.’ ” (Italics 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 [76 L.Ed.2d 527, 544, 103 S.Ct. 2317].) It is less than proof beyond a reasonable doubt (id. at p. 235 [76 L.Ed.2d at p. 546]); 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 [75 L.Ed.2d 502, 513-514, 103 S.Ct. 1535]; 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], italics added); “probable cause requires only a . . . substantial chance.” (Illinois v. Gates, supra, 462 U.S. at p. 243, fn. 13 [76 L.Ed.2d at p. 552].)

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 [76 L.Ed.2d at p. 549].) 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, subd. (a).)

“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 [76 L.Ed.2d at p. 547].)

D. Standard of review

In reviewing the issuance of a search warrant “[a]U we are . . . asked to decide is whether the [magistrate] acted properly, not whether [the police officer] did.” (Jones v. United States (1960) 362 U.S. 257, 271-272 [4 , 80 S.Ct. 725, 78 A.L.R.2d 233], overruled on other grounds in United States v. Salvucci (1980) 448 U.S. 83, 84 [65 L.Ed.2d 619, 623, 100 S.Ct. 2547].) Our determination is not based upon a de novo review. (Illinois v. Gates, supra, 462 U.S. at p. 236 [76 L.Ed.2d at pp. 546-547]; People v. Terrones, supra, 212 Cal.App.3d 139, 149.)

Our task, as a reviewing court, is to determine whether “the magistrate had a ‘substantial basis for . . . concluding]’ that a search warrant would uncover evidence of wrongdoing.” (Illinois v. Gates, supra, 462 U.S. at p. 236 [76 L.Ed.2d at p. 547].) “ ‘[A]ll conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged to uphold the findings of the [magistrate] if possible.’ ” (People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 715-716 [100 Cal.Rptr. 319, 493 P.2d 1183] (dis. opn. of Tobriner, J.).) Moreover, doubtful or marginal cases should be resolved in favor of upholding the warrant. (United States v. Ventresca (1965) 380 U.S. 102 [13 L.Ed.2d 684, 85 S.Ct. 741]; People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 207 [178 Cal.Rptr. 334, 636 P.2d 23].)

E. Did the magistrate have a “substantial basis” for issuing the search warrant?

In assessing the affidavit’s facts it is possible to imagine “[s]ome innocent explanation .... But ‘[t]he possibility of an innocent explanation does not deprive the [magistrate] of the capacity to entertain a reasonable suspicion . . . (People v. Kershaw (1983) 147 Cal.App.3d 750, 759-760 [195 Cal.Rptr. 311].)

“Reasonable suspicion” may be based not only upon the circumstances and conduct recited in the affidavit but also upon the affiant’s interpretation of and opinion about those circumstances and conduct. “ ‘Circumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience in the devious and cunning devices used by narcotics offenders to conceal their crimes.’ ” (People v. Johnson (1971) 21 Cal.App.3d 235, 244 [98 Cal.Rptr. 393].) Officer Roberts, the affiant, had extensive narcotic trafficking training and experience and “the magistrate could legitimately consider [his opinions] in determining probable cause for the search.” (People v. Kershaw, supra, 147 Cal.App.3d 750, 760; see also People v. Aho (1985) 166 Cal.App.3d 984 [212 Cal.Rptr. 686]; People v. Johnson, supra, 21 Cal.App.3d 235, 243; United States v. Cortez (1981) 449 U.S. 411, 418 [66 L.Ed.2d 621, 629, 101 S.Ct. 690] [“. . . a trained officer draws inferences and makes deductions . . . that might well elude an untrained person.”].)

We conclude there is a “substantial basis” for the magistrate’s finding of probable cause⁴ to issue the instant search warrant. Among the circumstances constituting this “substantial basis” are the following: the manner of shipment, the amount of marijuana, and the shipping distance indicate large-scale, sophisticated narcotics trafficking; use of Mercado’s residence telephone number as a “call back” indicates that location was Tuadles’s “second home” or a trusted confederate lived there; large scale traffickers commonly use two, three or more residences for their activities; on December 5, 1988, an unidentified person who appeared to reside at 63 East 69th Way, apartment B (the original delivery address) told an officer posing as a UPS deliveryman that Tuadles no longer lived there but had moved to apartment A; apartment A was vacant; by December 5, 1988, Tuadles and/or his confederates could reasonably expect UPS to “call back” Mercado’s telephone number for delivery instructions; it was the opinion of an experienced, well-trained narcotics officer-expert that narcotics, money, records, and paraphernalia were present in Mercado’s residence. (Cf. People v. Spears (1991) 228 Cal.App.3d 1 [278 Cal.Rptr 506]; United States v. Malin (7th Cir. 1990) 908 F.2d 163; People v. Johnson, supra, 21 Cal.App.3d 235; People v. Garnett (1970) 6 Cal.App.3d 280 [85 Cal.Rptr. 769]; People v. Lundy (1969) 2 Cal.App.3d 939 [82 Cal.Rptr. 815]; People v. Stout, supra, 66 Cal.2d 184.)

II.

To possess an unlawful drug solely for the purpose of disposal is not criminal. (People v. Mijares (1971) 6 Cal.3d 415 [99 Cal.Rptr. 139, 491 P.2d 1115].) Appellant Tuadles contends the trial court, sua sponte, should have so instructed the jury. He is mistaken. There was no evidence of such purpose. Tuadles testified he was going to drop the marijuana off to someone, not that he was going to dispose of it.

Disposition

The judgments are affirmed.

Lillie, P. J., concurred.

1 Mercado’s “Motion to Quash/Traverse Search Warrant” moved the court only to “suppress evidence to wit: Marijuana, found at the Defendant’s home . . . .” The motion failed to cite Penal Code section 1538.5, the exclusive remedy prior to conviction to test the reasonableness of a search (Pen. Code, § 1538.5, subd. (m)) and did not specify the suppression of either the $5,700 in cash or his inculpatory statements. (See Cal. Judges Benchbook, Search and Seizure (1991) § 1.67, p. 51.)

2 Mercado did not claim in the superior court, and does not claim on appeal, that the affidavit contains any false or reckless statements or material omissions.

3 The validity of this search warrant is not contested on appeal.

4 Accordingly, we have no occasion to consider the Leon “good faith” exception to the exclusionary rule. (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405]; see People v. Camarella (1991) 54 Cal.3d 592 [286 Cal.Rptr. 780, 818 P.2d 63].)