P. v. Neal

Filed 4/18/07 P. v. Neal CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R. S. Detjen, Judge.

Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Gomes, A.P.J., Dawson, J., and Kane, J.

Appellant, Bonnie Lee Neal, pled no contest to possession for sale of methamphetamine (Health & Saf. Code, 11378) and admitted a prior conviction enhancement (Health & Saf. Code, 11370.2, subd. (c)). On March 30, 2006, the court sentenced Neal to an aggregate term of five years: the middle term of two years on her possession conviction and a three-year prior conviction enhancement. On August 10, 2006, the court recalled the sentence, suspended criminal proceedings, and committed Neal to the California Rehabilitation Center. On appeal, Neal contends the court erred when it denied her motion to suppress. We will affirm.

FACTS

On July 6, 2004, Chowchilla Police Officer Jeff Moosoolian prepared a search warrant authorizing a search of in Chowchilla, California, where Dons Fix It Shop (the shop) was located, and of Neal and her sister, Barbara McGhee. Neal and McGhee lived in an apartment attached to the back of the shop.

According to Moosoolians affidavit in support of the warrant, during the month of June 2004, he was contacted by a confidential citizen informant (CCI) who wished to provide information regarding foot traffic to and from the shop. The CCI, whom the officer knew as a citizen, identified himself to the officer but wished to be anonymous. The affidavit further stated that the CCI was offering the information fortuitously, openly, through motives of good citizenship, he was not a paid informant, was not asking for consideration, and was providing the information to better his community. The CCI told Officer Moosoolian that during the first part of each month he observes a large amount of short term, foot traffic going to and from the rear of the business. People would arrive on foot, on bicycle or in a vehicle, go inside the business, and leave a few minutes later. Most of the traffic occurred late at night after business hours and into the early morning. On June 5 or 6, 2004, the CCI saw a man arrive at the rear of the business, go in the rear side door, come outside three minutes later holding a bag with a white substance inside, and ride away. The CCI knew an unknown, heavy set woman with red-blonde hair lived in the rear portion of the business.

During the month of June 2004, the officer was contacted by a confidential informant (CI #1) who wanted to provide information on illegal sales of methamphetamine at the shop in exchange for consideration on criminal charges. Although no promises were made, CI #1 told the officer that Bonnie and her sister lived at the shop, he personally had seen Bonnie in possession of one to two ounces of methamphetamine, CI #1 personally purchased a quantity of methamphetamine from her approximately three weeks before talking with the officer, and Bonnie usually keeps the methamphetamine on her person.

During June 2004, the affiant officer was contacted by a second confidential informant (CI #2) who also wished to provide information regarding methamphetamine sales at the shop in exchange for consideration on criminal charges. Although no promises were made, CI #2 told the officer two sisters he identified as Bonnie and Barbara were involved in illegal sales of methamphetamine from the shop and he personally purchased a quantity of methamphetamine approximately three days prior to speaking with the officer. CI #2 further told Moosoolian the sisters are employed in the aluminum can exchange part of the business and sell methamphetamine at the shop during business hours and into the evening. According to CI #2, the sisters got their methamphetamine from a Hispanic man from Merced and kept a constant supply on their persons or in their living quarters.

On June 25, 2004, the affiant officer conducted a criminal check on Neal and McGhee and found both of them had prior drug convictions. Neals prior convictions included a conviction for possession for sale of methamphetamine.

On July 1, 2004, Moosoolian was contacted by a third confidential informant (CI #3) who wanted to provide information regarding sales of methamphetamine from the shop in exchange for consideration in a criminal case. Although no promises were made, CI #3 told the officer that Neal lives in the back of the building and was involved in the sales of methamphetamine. Within the past 10 days CI #3 drove a friend to the shop to purchase methamphetamine during business hours. The friend went into the business and returned with an amount of methamphetamine. The friend stated he bought the methamphetamine from Bonnie.

On July 15, 2004, Moosoolian and other officers executed the warrant at the shop and detained Neal and McGhee. A search of Neal uncovered six small zip lock baggies containing equal amounts of methamphetamine. The officers also found 29 grams of methamphetamine in a trash can near where Neal was standing in the public area of the business. In Neals apartment, the police found baggies similar to the ones found on Neal and a digital scale with methamphetamine residue.

On October 24, 2004, Neal filed a motion to suppress in the trial court.

On December 10, 2004, after hearing argument from counsel, the court denied the motion.

DISCUSSION

Neal contends the warrant at issue was not supported by probable cause because the police officers did not corroborate the information provided by the informants. We will reject this contention.

We review the trial courts denial of [a] motion to suppress by deferring to factual findings by the trial court that are supported by substantial evidence. We independently review questions of law. [Citation.] (People v. Stanley (1999) 72 Cal.App.4th 1547, 1551.)

Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched. [Citation.] The totality of the circumstances set out in the affidavit should be considered and must convince the magistrate that there is a fair probability that the evidence sought will be located at the scene of the search. [Citation.] On appeal, we accord the magistrates determination great deference, inquiring only whether there was a substantial basis to conclude that the warrant would uncover evidence of crime. [Citation.] (People v. Stanley, supra, 72 Cal.App.4th at p. 1554.)

[A]s a general proposition . . . private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. This does not, of course, dispense with the requirement that the informant-whether citizen or otherwise-furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and the named suspect was the perpetrator; and the rule also presupposes that the police be aware of the identity of the person providing the information and of his status as a true citizen informant. [Citation.] In short, probable cause will not be provided by conclusionary information or anonymous informants, but neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities. (People v. Ramey (1976) 16 Cal.3d 263, 269, italics added.)

[Further,] [i]nformation from an untested informant may be sufficient to constitute probable cause for a search if it is corroborated by facts pertaining to the defendants alleged criminal activity. [Citations.] Such corroboration does not require a first-hand observation of the defendant selling cocaine. . . . [F]or corroboration to be adequate it must pertain to defendants alleged criminal activity. [Citation.] This requirement is met if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. (People v. Kershaw (1983) 147 Cal.App.3d 750, 758-759.)

Here, Officer Moosoolian stated in his affidavit that he knew the CCI to be a citizen, the citizen informant identified himself to the officer, the informant was not paid, and he was providing the information through motives of good citizenship and to better his community. This information was sufficient to justify the magistrate concluding the CCI was a citizen informant. (Cf. People v. Stanley, supra, 72 Cal.App.4th at p. 1551.) Further, the citizen informant provided Officer Moosoolian with factual, first-hand information, i.e., that during the first part of each month, he observes a large amount of foot traffic going to and from the rear of the shop, that most of the traffic occurred late at night and into the early morning, and that the people would stay only a few minutes. Further, on June 5 or 6, 2004, the citizen informant saw a man enter the business through a rear, side door and leave a few minutes later with a plastic baggie containing a white substance. Moreover, even though a citizen informants statements do not require corroboration in order to provide probable cause (People v. Ramey, supra, 16 Cal.3d 263, 269), here, the citizen informants statements were corroborated by three confidential informants, one who saw Neal in possession of one or two ounces of methamphetamine, another who purchased a quantity of methamphetamine at the shop in June, and a third who took a friend to purchase methamphetamine at the shop in the latter part of June 2004. The citizen informants statements also were corroborated by the criminal records of Neal and McGhee who each had prior drug related convictions including Neals conviction for possession for sale of methamphetamine. (People v. Aho (1985) 166 Cal.App.3d 984, 992 [a suspects narcotic arrest and conviction record is relevant to the determination of probable cause].) Accordingly, we conclude that the citizen informants statement provided probable cause for the issuance of the search warrant.

Further, we find unavailing Neals reliance on Higgason v. Superior Court (1985) 170 Cal.App.3d 929 (Higgason), Bailey v. Superior Court (1992) 11 Cal.App.4th 1107 (Bailey), and People v. Gotfried (2003) 107 Cal.App.4th 254 (Gotfried). In Bailey, a citizen informant and an anonymous informant reported heavy traffic to and from the defendants apartment and stated they believed the defendant was selling drugs. Thereafter, police investigation merely confirmed the defendant lived at the apartment. In finding the informants statements and police investigation did not establish probable cause for the issuance of a search warrant, the Bailey court found there was no corroboration of any suspicious activity. (Bailey, supra, 11 Cal.App.4th at p. 1113.)

Bailey is easily distinguishable because unlike the statements of the citizen and non citizen informants in Bailey, here the informants statements involved first-hand, factual knowledge of criminal activity, i.e., the sales of methamphetamine, that directly implicated Neal.

In Higgason, three anonymous phone callers reported the defendant was selling drugs from his house: one who claimed to have first-hand knowledge of illegal activities, one who claimed to have seen marijuana and cocaine at the defendants house, and one who claimed her boyfriend bought drugs from the defendant. The police investigation disclosed only that the defendant resided at the house in question. (Higgason, supra, 170 Cal.App.3d at pp. 934-935.) In finding the affidavit in support of the search warrant failed to establish probable cause, the Higgason court found that three anonymous informants were insufficient to corroborate each other and that the police investigation was also insufficient to corroborate their statements. (Id. at pp. 939-940.)

In Gotfried an anonymous informant told the police the defendant had been growing marijuana at his residence and diverting electricity for three years, the informant had seen the marijuana growing, the defendant sold the marijuana for $2,800 a pound, and he had two vehicles which the informant described. The officers confirmed the defendant lived at the indicated residence and drove one of the vehicles described by the informant and obtained a warrant to use a thermal imaging device. Further, after detecting heat coming from the rear side of the mobilehome, they obtained a warrant to search the home. In finding that the warrant affidavit failed to establish probable cause for the search of the defendants residence, the Gotfried court found the officer relied on the uncorroborated tip of an anonymous informant. (Gotfried, supra, 107 Cal.App.4th at p. 264.)

Gotfried and Higgason are easily distinguishable because here none of the informants were anonymous, the citizen informants statement did not require corroboration and involved first-hand, factual knowledge of drug activity at the shop, and the other informants statements also involved first-hand, factual knowledge of drug sales at the shop and were mutually corroborative as well as being corroborated by the statements of the citizen informant. Thus, we conclude that the court did not err when it denied Neals motion to suppress.

DISPOSITION

The judgment is affirmed.

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