P. v. Castro

Filed 4/20/07 P. v. Castro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Michael Ian Garey and Martha Allerton for Defendant and Appellant Victor Hugo Castro.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant Felipe Cisneros.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Following the denial of their motions to suppress (Pen. Code,  1538.5), appellants Victor Hugo Castro and Felipe Cisneros pled guilty to various drug charges. They contend their motions were improperly denied, and Cisneros contends the trial court erred by hearing Castros motion in his absence. We reject these contentions and affirm the judgment.

* * *

This case stems from a narcotics investigation headed by Orange County Sheriffs Deputy Joseph William Balicki in October 2005. Sometime between the 1st and 18th of that month, Balicki gave a confidential informant money to buy drugs from Castro. The informant met with Castro in Castros car for about a minute and bought methamphetamine from him.

Then, on October 19, Balicki was surveilling an apartment complex at 1221 East Beechwood Street in Santa Ana when Castro drove up in a blue Volkswagen. Castro parked in the alley, activated his flashers and walked into the complex. A short time later, he was seen exiting apartment number 79. He returned to his car and drove to the parking lot of a nearby Target store. There, he was soon approached by an unidentified man who entered his vehicle. After a few minutes, the man got out and Castro drove away. Balicki suspected Castro sold narcotics to the man, although he did not see them exchange anything.

The next morning, Balicki saw Castro drive up to the Beechwood complex in a Honda Accord. As he did the day before, Castro parked in the alley, set his flashers and entered the complex. About 10 minutes later, he returned to the Accord and drove around the corner to a gas station. Appellant Cisneros was waiting there in a car with his wife and child. When Castro pulled into the parking lot, Cisneros walked over to him and entered his front passenger seat. At that point, Balicki and three other deputies converged on appellants.

Each of the deputies was driving an unmarked vehicle. First, they positioned their vehicles so as to hem in the Accord. Then they exited their vehicles and ran toward appellants with their guns drawn. They ordered appellants to turn off the engine, keep their hands up and stay put, which they did. Next, the deputies opened appellants doors and directed and assisted them out of their car. Castro was holding a bundle of cash, and Cisneros threw a baggie of methamphetamine under the car. Once they were fully outside the car, appellants were handcuffed and told they were under arrest.

Balicki interviewed appellants at the scene. Castro said his name was Carlos Francisco Villarreal and produced a drivers license in that name. When that information did not check out, he said his name was Jorge Mireles. Asked about the methamphetamine he threw under the car, Cisneros said he did not get it from Castro. However, Castro said he was in the process of selling it to Cisneros when the police arrived. He said he had just picked it up from apartment 79, where he had been getting drugs for the past couple of weeks. Explaining his modus operandi, Castro said he would get methamphetamine from a guy named Francisco in apartment 79, sell it, and then give the money to Francisco, who let him keep $20 for his efforts.

While still at the gas station, Balicki assembled a team of deputies to go to apartment 79. He told them to knock on the door and attempt to obtain consent to enter the apartment, and if that didnt work, to gain entrance and freeze the location. Balicki felt this action was justified based on what he knew about Castro and because apartment 79 is in close proximity to the gas station where appellants were arrested. Although the gas station is not visible from apartment 79, and Balicki did not have any specific information about lookouts in this case, he was aware drug dealers often use lookouts to help them detect police activity. After the deputies headed over to apartment 79, Balicki took appellants to the police station and began swearing out a search warrant for the apartment.

Upon arriving at the apartment, the deputies knocked on the door, but no one answered. They then tried to track down the manager to get the key, but she could not be found. After that, they noticed the rear sliding door to the apartment was ajar. The deputies relayed this information to Balicki, and he ordered them to forcibly enter the apartment, which they did through the front door. This was at 11:50 a.m., about 50 minutes after appellants were arrested.

During a quick walk-thru of the apartment, the deputies noticed methamphetamine and cocaine in plain view on the bathroom counter. They informed Balicki about this, and he included this information in his warrant application. He also instructed the deputies to secure the residence until he could obtain a search warrant. That happened about four hours later, at 3:40 p.m., and Balicki called the deputies and told them to search the apartment.

The search turned up nearly three pounds of methamphetamine, over one pound of cocaine, a gram scale and $1,180 in cash. Also found were two electric bills in the name of Jorge Mireles (Castros alias, see pg. 3, ante), and a money order bearing Castros true name. Other documents pertaining to the apartment, including the rental agreement, bore the name of Reyes Rodriguez Flores. In the garage assigned to apartment 79, the police found a handgun, ammunition and pay-owe sheets in a notebook that had Castros name written on it.

At the preliminary hearing, appellants argued they were arrested without probable cause when the deputies initially contacted them at the gas station. Castro also claimed the warrantless entry into apartment 79 was unlawful, and the subsequent search warrant was tainted by what the deputies saw during that entry. The prosecutor argued appellants were lawfully arrested, Castro lacked standing to contest the deputies actions with respect to apartment 79, and even if he didnt, exigent circumstances justified the warrantless entry into the apartment. In denying appellants motions, the court found there was probable cause to arrest appellants and for the search warrants issuance. It did not decide the standing question or the exigency issue.

Appellants renewed their motions in the superior court. The court heard Castros motion first, because Cisneros attorney was tied up on another case. The court determined there was probable cause to arrest Castro at the gas station, Castro had standing to contest the warrantless entry into apartment 79 and the entry was not justified by exigent circumstances. But it further found that even excluding the evidence seen during the initial walk-thru, there was still probable cause for the search warrant. It therefore denied Castros motion to suppress.

Following a noon recess, the court then heard Cisneros motion. Noting he had joined Castros argument that there was not probable cause to arrest, Cisneros attorney was upset that the court had heard Castros motion in his absence. He moved to recuse the judge or, in the alternative, continue the matter so he could obtain a transcript of Castros motion hearing. The court denied both requests, as well as the motion to suppress. Regarding that motion, the court reasoned Cisneros was lawfully detained when the deputies swooped in on appellants, and because they saw him discard drugs at that time, his subsequent arrest was lawful.

Having lost their suppression motions, appellants pled guilty to possessing for sale the methamphetamine Cisneros discarded at the arrest scene. Castro also pled guilty to transporting that methamphetamine and various other charges related to the drugs, gun and ammunition that were found in apartment 79 and the garage.

I

Appellants contend they were arrested without probable cause when the deputies initially contacted them in the gas station parking lot. However, we agree with the Attorney General that the initial contact was only a detention and that appellants were not arrested until they were handcuffed outside their vehicle and formally placed under arrest. We further find appellants detention and arrest was justified under the circumstances presented.

The distinction between a detention and an arrest may in some instances create difficult line-drawing problems. [Citations.] (People v. Celis (2004) 33 Cal.4th 667, 674.) [T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.] Important to this assessment, however, are the duration, scope and purpose of the stop. [Citation.] (Id. at pp. 674-675.)

In Celis, a police officer confronted the defendant and another man on suspicion they were involved in narcotics activity. The contact occurred in an alley, and after ordering the suspects to stop at gunpoint, the officer handcuffed the defendant and made him sit down while he searched a nearby house for safety reasons. (People v. Celis, supra, 33 Cal.4th at p. 672.) The defendant argued this treatment amounted to an arrest, not a detention, but our high court disagreed.

Regarding the duration factor, the court noted the stop was relatively brief, lasting only a few minutes. (People v. Celis, supra, 33 Cal.4th at pp. 675-676.) As for the scope of the stop, the court made it clear that stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period . . . do not convert a detention into an arrest. [Citations.] (Id. at p. 675.) And with respect to the purpose of the stop, the court found it significant the defendant was suspected of narcotics activity. (Ibid.) The court stated, Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony. (People v. Celis, supra, 33 Cal.4th at p. 676.)

Here, appellants were suspected of engaging in felony drug activity when the deputies approached them. As Balicki explained in his testimony, this heightened the prospect appellants might be armed. (See generally People v. Glaser (1995) 11 Cal.4th 354, 367 [recognizing firearms are tools of the trade in the narcotics business]; People v. Simpson (1998) 65 Cal.App.4th 854, 862 [drugs and guns are a lot like sharks and remoras].) Consequently, the deputies were entitled to employ a greater show of authority in detaining appellants than may have been called for in other situations.

It is also significant the stop here was not just relatively brief, but absolutely brief. No exact time frame appears in the record, but it is clear the deputies were in a hurry to seize appellants and secure the scene. The stop could not have lasted more than seconds before probable cause to arrest developed. Moreover, in terms of scope, the stop was roughly equivalent to the stop in Celis. Both stops involved a significant show of authority by the police, but this does not compel a conclusion an arrest occurred. In fact, Celis cited numerous cases in which courts have decided that ordering or taking a suspect out of a vehicle at gunpoint does not constitute an arrest. (People v. Celis, supra, 33 Cal.4th at p. 675.)
With Celis and those decisions as our guide, we conclude appellants were detained, not arrested, during the rapid series of events that unfolded when the deputies initially contacted them. More precisely, we hold appellants were detained when the deputies blocked their car, approached them with their guns drawn, told them to stay put, opened their doors and removed them from their vehicle. An arrest did not occur until appellants were handcuffed outside the vehicle and formally placed under arrest. Therefore, the deputies actions leading up to that point need only be based on a reasonable suspicion of criminal activity, as opposed to full-blown probable cause. (People v. Celis, supra, 33 Cal.4th at pp. 673-674.)

That lesser standard was clearly satisfied on the facts presented. During a controlled buy that occurred sometime within three weeks of the detention, Castro sold methamphetamine to a confidential informant in his car. The day before the detention, he briefly visited apartment 79 before engaging in a similar-looking transaction in a Target parking lot. It was Balickis opinion this transaction was consistent with a drug sale. And on the day in question, Castro followed the same routine, meeting someone in his car in a public place after making a brief stop at the Beechwood complex. This time, his companion was Cisneros, and although the police did not have any information about Cisneros, the circumstances provided some objective manifestation he was in Castros car to buy drugs. (People v. Celis, supra, 33 Cal.4th at p. 674, quoting People v. Souza (1994) 9 Cal.4th 224, 230.) Therefore, appellants were lawfully detained at the gas station. (Ibid.)

Because appellants detention was lawful, we may consider the money and drugs that were discovered during the detention in assessing the propriety of their subsequent arrest. The fact that Castro had a bundle of cash in his lap and Cisneros threw a baggie of methamphetamine under their car could hardly be more incriminating. Adding these facts into the equation, we entertain no doubt probable cause existed to arrest appellants by the time they were handcuffed outside their vehicle and formally placed under arrest. Both their detention and arrest were constitutionally sound.

II

Castro also challenges the initial warrantless entry into apartment 79, claiming it was based on neither probable cause nor exigent circumstances. The Attorney General claims Castro lacks standing to challenge the entry because he did not have a reasonable expectation of privacy in the apartment. The Attorney General also argues that even if Castro had standing, [e]xigent circumstances existed [to enter the apartment without a warrant] because the deputies reasonably believed a person, Francisco, who was involved in the narcotics transactions was still in the apartment and would destroy the narcotics if he learned of Castros arrest.

We find it unnecessary to resolve these contentions. Because there was probable cause for the search warrant without the information gleaned from the initial warrantless entry into apartment 79, it does not matter whether that entry was legal.

Under the independent source doctrine, a search warrant based on information that was both lawfully and unlawfully obtained will be upheld if two conditions are met. First, removing the tainted information, probable cause remains to support the warrant; and [second] the officers would have sought the warrant without the illegally obtained information. (People v. Weiss (1999) 20 Cal.4th 1073, 1077.) Both of those conditions are satisfied in this case.[1]

Taking them in reverse order, Balicki was clear in his testimony that he made the decision to apply for a search warrant before his fellow deputies entered apartment 79. Describing his actions after leaving the gas station, Balicki explained, I went back [to the Sheriffs headquarters] to start a search warrant while the leader of the team was at the Beechwood address. Asked if prior to learning what was inside the Beechwood address he had already formed a belief there were drugs there, Balicki answered, Yes. That belief obviously was the foundation of Balickis decision to seek a warrant, and since it arose before the initial sweep of apartment 79, the second prong of Weiss was satisfied.

So was the first. Even excising the information about what the initial sweep turned up, there was clearly probable cause to issue the warrant. In that regard, we note Balickis affidavit included the information recounted above pertaining to Castros suspicious activity on the day of, and before, his arrest.[2] That information readily connected Castro to apartment 79.

Furthermore, the affidavit included Castros post-arrest admissions that he was selling methamphetamine to Cisneros in the gas station parking lot and that he had just picked up the methamphetamine from a guy named Francisco in apartment 79. Castro argues these statements were unreliable because he was a criminal suspect who had previously lied about his identification. But the fact is, Castro did eventually tell Balicki the name by which he was known, Jorge Mireles. And the other information he imparted was factually consistent with what the deputies already knew: They had seen him go into the Beechwood complex shortly before his arrest, and this is precisely what Castro told them he had done. (See United States v. Lucca (8th Cir. 2004) 377 F.3d 927, 933 [informants reliability may be established by corroboration].) Even the criminal aspect of Castros statement was corroborated in that he told the deputies he went to apartment 79 to get drugs to sell, and that is what he was doing when he was arrested. (Compare Florida v. J.L. (2000) 529 U.S. 266 [anonymous tip that suspect was carrying gun was insufficient cause for detention because the corroborative facts the officers observed did not relate to criminal activity].)

It is also significant that Castros information was based on Castros first-hand knowledge, as opposed to something he allegedly heard from someone else. As the United States Supreme Court explained in Illinois v. Gates (1983) 462 U.S. 213, an informants basis of knowledge is one way in which information from informant can be validated. Indeed, [t]he police may ascribe greater reliability to a tip . . . where an informant was reporting what he had observed moments ago, not stale or second-hand information. [Citation.] (People v. Dolly (2007) 40 Cal.4th 458, __.) Castros information was not only fresh, but also personally observed. Perhaps most important, it was also very much against his own self-interest. [A]n informants statement against his or her own penal interests . . . is presumptively credible . . . . (United States v. Leppert (8th Cir. 2005) 408 F.3d 1039, 1042.)

For all of these reasons, we conclude Castros postarrest statements, coupled with his prearrest activities, were sufficient to support a finding of probable cause. That is, a neutral magistrate could reasonably conclude based on what Castro did before his arrest and what he said upon his arrest that apartment 79 contained methamphetamine. Therefore, even without the information discovered during the initial warrantless entry into the apartment, issuance of the search warrant was proper.

III

Lastly we take up Cisneros claim the trial court erred by hearing Castros suppression motion without Cisneros or his attorney being present. Relying on the fact he joined Castros argument regarding probable cause to arrest, Cisneros argues his absence from the hearing was a structural defect in the proceedings that mandates automatic reversal. In so arguing, he cites Penal Code section 997, which calls for the accused to be present during those portions of the trial when evidence is taken before the trier of fact . . . . (Pen. Code,  977, subd. (b).) However, that provision is inapt because no evidence was taken at the renewed suppression hearings in the trial court. Instead, those hearings were based solely on the evidence that was adduced at the preliminary hearing. That being the case, it cannot be said that Cisneros absence from Castros motion hearing amounted to a structural defect in the trial process.

Nevertheless, Cisneros contends he was prejudiced by the fact that, in denying Castros motion to suppress, the court indicated its belief Cisneros discarded the methamphetamine when the deputies initially contacted appellants at the gas station. Cisneros rightly notes that the record actually supports the conclusion he tossed the methamphetamine after he was outside Castros car. However, even under that scenario, no Fourth Amendment violation occurred because, as we have explained and the trial court found, Cisneros was not arrested at that time. Rather, Cisneros was caught up in a detention for which there was legally sufficient cause. Any way we look at them, the facts simply do not warrant the conclusion the deputies acted illegally in detaining and then arresting Cisneros at the scene. Therefore, his motion to suppress was properly denied. Not only was he given every opportunity to argue the issues at his own motion hearing, there is nothing in the record to show he was prejudiced by being absent from Castros motion hearing. There are, in short, no procedural or substantive grounds for reversal.

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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[1] In Murray v. United States (1988) 487 U.S. 533, the United States Supreme Court suggested that in addition to these two conditions, there must also be evidence the magistrate issuing the warrant was unaffected by the illegally obtained information. However, in Weiss, our Supreme Court interpreted Murray as not requiring such evidence as a prerequisite to applying the independent source doctrine. (See People v. Weiss, supra, 20 Cal.4th at pp. 1076-1083.) We are bound by our Supreme Courts decision in this regard. (See People v. Madrid (1992) 7 Cal.App.4th 1888, 1895 [in considering questions of federal constitutional law we are bound by our Supreme Courts interpretation of United States Supreme Court decisions].)

[2] It did not include any information pertaining to the controlled buy, however.