Filed 2/1/16 P. v. Gutierrez CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B258235

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA416718)
         v.

MARIA GUTIERREZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed.
         Michael Ian Garey for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stacy S. Schwartz and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
                                                    ___________
       Following the denial of her motion to suppress evidence, Maria Gutierrez pleaded
guilty to possession of marijuana for sale, possession of cocaine base for sale and
possession of methamphetamine for sale. On appeal Gutierrez contends that evidence of
those crimes should have been suppressed as the fruits of an illegal search conducted
pursuant to an invalid search warrant. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND
       On September 23, 2013 Los Angeles Police Officer Brandon Walthers received
information from a confidential informant that a person known as “Maria” possessed
approximately 30 to 40 pounds of marijuana in the “rear portion” of her residence at
348 East 80th Street. The informant had observed the marijuana after being escorted
through the back door of Maria’s house. Walthers prepared an affidavit and obtained
                                                                            1
from a magistrate a warrant to search the residence at 348 East 80th Street. Before
executing the warrant, Walthers conducted a short surveillance of the home from the
street and noticed the address numerals 348 on the northern facing wall near the front
door of the house. He did not get out of the car or walk toward the back of the house to
get a better view of the rear door described by the informant because he did not want to
risk being noticed and compromise the investigation.
       On September 25, 2013 Officer Walthers and eight to 10 additional law
enforcement officers executed the search warrant by going directly to the rear door of the
                                        2
house. After providing “knock-notice” and receiving no response, the officers forcibly


1      Because the information contained in the affidavit to obtain the warrant was
provided by a confidential informant, the affidavit was sealed. Pursuant to People v.
Hobbs (1994) 7 Cal.4th 948, 959, at the joint preliminary/suppression hearing Gutierrez
asked the court to conduct an in camera inspection to determine how much of the
affidavit, if any, could be unsealed without compromising the informant’s identity.
Following its in camera inspection, the court unsealed the portions of the affidavit
described above.
2       The term “knock-notice” refers to the requirement of Penal Code section 1531 and
its federal counterpart (18 U.S.C. § 3109) that a law enforcement officer, before entering
a house to execute a warrant, give notice of his or her authority and purpose and be

                                             2
entered, immediately conducted a “protective sweep” of the residence for individuals and
                               3
took Gutierrez into custody. Upon entering the premises Walthers realized for the first
time the single structure he had identified in the search warrant affidavit as 348 East 80th
Street was subdivided into two separate living units, one situated behind the other.
Rather than entering the back door of 348 East 80th Street, Walthers had entered the front
door of 350 East 80th Street (unit 350); 348 East 80th Street (unit 348) was the address
for the front dwelling. At about the same time as police made their forced entry into unit
350, the residents of unit 348 came outside and confirmed that the house was a duplex
and they lived in the front residence. Police conducted a protective sweep of unit 348
making sure no other individuals were in that residence. Then, without obtaining a new
warrant, police searched Gutierrez’s residence (unit 350), where they found illicit drugs,
$10,000 in cash and a rifle.
       Gutierrez moved pursuant to Penal Code section 1538.5 to suppress the
contraband seized from her residence on the ground the warrant inaccurately described
the premises to be searched as 348 East 80th Street, not 350 East 80th Street, and was
therefore invalid. She argued the police knew or should have known the structure was a
duplex before they obtained the warrant, or at a minimum, before they entered, and could
not claim they had acted in good faith reliance on an invalid warrant. At the joint
preliminary hearing/suppression hearing, Gutierrez presented photographic evidence
showing two mailboxes in the front of the structure with two different addresses. One
mailbox contained the numerals 348; the other, 350. In addition, the front wall of the
structure displayed two address plaques. The top plaque denoted “350”; the one beneath


refused admittance either actually or constructively. The requirement is a product of the
Fourth Amendment’s prohibition of unreasonable searches and seizures. (Wilson v.
Arkansas (1995) 514 U.S. 927, 931 [115 S.Ct. 1914, 131 L.Ed.2d 976].)
3      “A ‘protective sweep’ is a quick and limited search of premises, incident to [a
search or] an arrest and conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a person might
be hiding.” (Maryland v. Buie (1990) 494 U.S. 325, 327 [110 S.Ct. 1093, 108 L.Ed.2d
276]; accord, People v. Celis (2004) 33 Cal.4th 667, 677.)

                                              3
it, “348.” On cross-examination Officer Walthers denied noticing the mailboxes, address
plaques or any other indicia of a duplex before obtaining and executing the warrant.
       Relying on People v. Amador (2000) 24 Cal.4th 387 (Amador) the trial court
denied Gutierrez’s suppression motion, concluding the discrepancy between the address
in the warrant and Gutierrez’s address did not invalidate the warrant or render the search
unlawful; the search was conducted at the intended, targeted premises for which there
was probable cause to search.
       Following the denial of her motion to suppress evidence, Gutierrez pleaded guilty
pursuant to a negotiated agreement to three counts: possession of marijuana for sale
(count 1) (Health & Saf. Code, § 11359), possession of cocaine base for sale (count 3)
(Health & Saf. Code, § 11351.5) and possession of a controlled substance,
methamphetamine, for sale (count 5) (Health & Saf. Code, § 11378). Three other counts
were dismissed pursuant to the plea agreement. The court suspended imposition of
sentence and placed Gutierrez on five years’ formal probation with the condition that she
serve 180 days in county jail.
                                       DISCUSSION
       1. Governing Law and Standard of Review
       The Fourth Amendment, applicable to the States by the Fourteenth Amendment,
prohibits unreasonable searches and seizures. (U.S. Const. 4th Amend.; People v.
Camacho (2000) 23 Cal.4th 824, 830-831.) A search is presumptively reasonable, and
thus in compliance with the Fourth Amendment, if supported by a warrant describing
with particularity the thing or the place to be searched. (U.S. Const., 4th Amend.; see
People v. Weiss (1999) 20 Cal.4th 1073, 1082.) “‘The manifest purpose of this
particularity requirement [is] to prevent general searches. By limiting the authorization
to search to the specific areas and things for which there is probable cause to search, the
requirement ensures that the search will be carefully tailored to its justifications, and will
not take on the character of the wide-ranging exploratory searches the Framers intended
to prohibit.’” (Amador, supra, 24 Cal.4th at p. 392; accord, Maryland v. Garrison (1987)
480 U.S. 79, 84 [107 S.Ct. 1013, 1016, 94 L.Ed.2d 72].)

                                              4
       To satisfy the particularity requirement, “[c]omplete precision in describing the
place to be searched is not required.” (Amador, supra, 24 Cal.4th at p. 392; accord,
People v. Minder (1996) 46 Cal.App.4th 1784, 1788.) “‘It is enough if the description is
such that the officer with a search warrant can with reasonable effort ascertain and
identify the place intended.’” (Amador, at p. 392; accord, Steele v. United States (1925)
267 U.S. 498, 503 [45 S.Ct. 414, 416, 69 L.Ed. 757].) Under this standard neither an
inaccurate description of the premises nor the wrong address is necessarily fatal to the
warrant’s validity. (Amador, at p. 392 [“[m]any cases have upheld warrant searches
despite errors in the description of the place to be searched” or the wrong address];
People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, 222 [“‘[a] mistaken address
does not invalidate a warrant per se’”]; People v. Lovett (1978) 82 Cal.App.3d 527, 531
[same].) “When the warrant contains an inaccurate description, ‘[t]he test for
determining the sufficiency of the description of the place to be searched is whether the
place to be searched is described with sufficient particularity as to enable the executing
officer to locate and identify the premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly searched.’”
(Amador, at p. 393.)
       The question whether relevant evidence obtained by assertedly unlawful means—
that is, in violation of the Fourth Amendment—must be excluded is determined by
deciding whether its suppression is mandated by the federal Constitution. (Cal. Const.,
art. I, § 24; see People v. Schmitz (2012) 55 Cal.4th 909, 916; People v. Lomax (2010)
49 Cal.4th 530, 564, fn. 11.) A defendant claiming the search warrant or supporting
affidavit is constitutionally deficient bears the burden in the trial court of alleging and
proving the deficiency. (Amador, supra, 24 Cal.4th at p. 393; Franks v. Delaware (1978)
438 U.S. 154, 171-172 [98 S.Ct. 2674, 57 L.Ed.2d 667].) In reviewing the trial court’s
ruling on a motion to suppress, the appellate court defers to the trial court’s factual
findings, express or implied, when supported by substantial evidence. However, whether
a mistake in the description of the premises makes the warrant constitutionally invalid is
a question of law that the reviewing court decides independently. (Amador, at p. 393;

                                               5
accord, People v. Kraft (2000) 23 Cal.4th 978, 1041; People v. Minder, supra,
46 Cal.App.4th at p. 1788.)
       2. The Trial Court Did Not Err in Denying Gutierrez’s Motion To Suppress
              a. The error in the description of the address did not invalidate the warrant
       In denying Gutierrez’s motion, the trial court relied extensively on Amador, supra,
24 Cal.4th 387, in which the Supreme Court addressed the validity of a warrant that listed
an address different from the one for the premises ultimately searched. As described in
Amador, after receiving information from a confidential informant, a police detective
obtained a warrant to search “a two story” residence at “10817 Leland.” In fact, the
house the informant had shown the detective, and the house the detective intended to and
did search, was a single story house located at 10811 Leland (the defendant’s house).
The defendant moved to suppress the contraband found in his home, arguing the warrant
was invalid because it authorized the search of a different style structure at a different
address.
       The Supreme Court held the errors in the description of the premises did not
invalidate the warrant. Although the warrant contained the wrong address and an
incorrect description of the structure, it nevertheless “described the house in several other
particulars,” and there was no evidence that any other house existed that so closely
matched the warrant’s description. (Amador, supra, 24 Cal.4th at pp. 394-395.) In ruling
the mistake insufficiently material to invalidate the warrant, the Court found significant
the fact the officer who had supplied the affidavit to obtain the warrant had also
personally executed the search. “[T]he risk of searching the wrong house is slight when
the affiant, who knew exactly what house the magistrate authorized to be searched, also
executed the warrant.” (Id. at p. 395.) “The warrant and the officer’s knowledge
together leave no doubt that the magistrate found probable cause to search one particular
                                                                                    4
house to the exclusion of all others, i.e., the house actually searched.” (Ibid.)

4     The Amador Court cautioned, however, “[T]he executing officer’s personal
knowledge may not cure all deficiencies or completely substitute for a description in the
warrant. It is but a factor to consider.” (Amador, supra, 24 Cal.4th at p. 395.)

                                              6
       Gutierrez attempts to distinguish Amador, emphasizing in that case there was no
evidence another house was likely to have been searched as a result of the mistake in the
address or the description. In contrast, she argues, here not only was it likely the wrong
residence would be searched based on the incorrect address in the warrant, but also such a
search in fact occurred: After entering and securing unit 350, police then entered and
secured unit 348 under color of warrant before beginning a more comprehensive search
of Gutierrez’s residence.
       Contrary to Gutierrez’s contention, entry into unit 348 for the sole purpose of
conducting a protective sweep prior to executing the warrant on Gutierrez’s residence
does not bolster Gutierrez’s assertion a reasonable likelihood existed that the wrong
residence would be searched. At the threshold, Gutierrez had no reasonable expectation
of privacy in unit 348 and thus may not object to any search of it. (People v. Camacho,
supra, 23 Cal.4th at pp. 830-831 [to assert Fourth Amendment violation, resident must
have reasonable expectation of privacy in place searched].) Moreover, law enforcement’s
entry into unit 348 did not result from a lack of particularity in the warrant. To the
contrary, the record is clear the officers entered unit 348, after securing unit 350, solely to
protect their safety before searching Gutierrez’s residence. No broader search of unit 348
                                         5
pursuant to the warrant was conducted.
       Gutierrez’s reliance on United States v. Collins (9th Cir. 1987) 830 F.2d 145
(Collins) is misplaced. In Collins police obtained a warrant to search 373 Springdale


5       Officer Walthers testified on direct examination the police had entered unit 348
with its residents’ consent. On cross-examination he acknowledged the police had told
the residents of unit 348 they had a search warrant. The record is unclear whether the
reference to the warrant was the basis for the purported consent to enter the unit. (See
Bumper v. North Carolina (1968) 391 U.S. 543, 550 [88 S.Ct. 1788, 20 L.Ed.2d 797]
[acquiescence to a claim of lawful authority is not consent].) Of course, under the
circumstances it is questionable whether a warrant to conduct a protective sweep was
necessary at all. (See generally People v. Celis, supra, 33 Cal.4th at pp. 676-677 [“[o]ne
recognized exigent circumstance that will support the warrantless entry of a home—the
risk of danger to police or others on the scene—also provides the justification for a
‘protective sweep’ of a residence”].)

                                              7
Street, Sebastopol, described in the initial warrant as “‘a single story wood framed
residence, white in color with a dark composition roof’” and “‘the last house on the east
side of Springdale Street.’” Before executing the warrant, police obtained an amendment
to it, altering the address in the warrant to “‘300 Springdale Street’” and describing it as
“‘the last house on the west side.’” Based on the description in the amended warrant,
police entered and searched 300 Springdale Street and found nothing. Realizing that the
address searched was not, in fact, the last house on the west side, police then entered a
different address under color of warrant—the last house on the west side of the street—
and found contraband. The Collins court held the warrant was invalid to support the
second search because it did not describe the place to be searched with sufficient
particularity: “The police were remarkably unparticular. They got the street address
wrong twice. They got the sides of the street wrong once. They did not have a physical
description that brought them to the right place. [Citation.] There was not only a
reasonable probability that another premise might mistakenly be searched, but another
premise was searched.” (Id. at pp. 145-146.) The Collins court also rejected the People’s
argument that police had acted in good faith in reliance on what they believed to be a
valid warrant: “As the officers were reckless in preparing their affidavit, they are not
protected by good faith reliance on the warrant.” (Id. at p. 146.)
       Gutierrez’s argument conspicuously omits the fact that here, as in Amador, the
same officer who had obtained the warrant also executed it, knowing exactly the premises
he intended to search. Under these circumstances there was no reasonable possibility the
wrong residence, for which there was no probable cause, would be searched. (See
Amador, supra, 24 Cal.4th at p. 393 [distinguishing Collins; because the officer executing
the warrant was the same one who obtained it, he was “easily able to locate and identify
the specified premises, and there was little probability that another premise would be
mistakenly searched”].)
       Gutierrez’s effort to liken this case to People v. MacAvoy (1984) 162 Cal.App.3d
746 also misses the mark. In that case police sought a warrant to search Neil MacAvoy’s
residence believing he was involved in possessing or selling illicit drugs. The warrant

                                              8
authorized a search of a “two-story, multi room” fraternity house. Police entered the
fraternity house, searched only MacAvoy’s room, unit no. 112, and found illicit drugs.
No other room was searched. MacAvoy moved to suppress the evidence on the ground
the warrant was void on its face because it failed to adequately describe the limited place
to be searched. The appellate court agreed, explaining, “‘[W]hen a warrant directs a
search of a multiple occupancy apartment house or building, absent a showing of
probable cause for searching each unit or for believing that the entire building is a single
living unit, the warrant is void and a conviction obtained on evidence seized under it
cannot stand.’” (Id. at p. 754; see also id. at pp. 754-755 [“[o]n its face, the warrant
would allow the officers to search every part of the fraternity house; since probable cause
existed to search appellant’s room only, the warrant, as a general rule, is void”]; United
States v. Bershchansky (2d. Cir. 2015) 788 F.3d 102, 111-112 [officer who knew suspect
lived in multi-unit dwelling had duty to identify with particularity the unit to be searched;
identification of wrong apartment in affidavit and warrant precluded search of other unit
                           6
not stated in warrant].)
       Unlike the situation in MacAvoy, the warrant here was not overly broad. To the
contrary, apart from the mistake in the address, it described with requisite particularity a
single residence to be searched. Although the warrant misidentified the correct address,
the officer who executed the warrant knew exactly where to search; and the search was



6       In MacAvoy the Attorney General acknowledged the warrant was facially
overbroad but argued the deficiency was cured by the supporting affidavit, which
identified MacAvoy’s apartment as room number 112 of the fraternity house. The
MacAvoy court recognized an affidavit describing the premises with particularity could
remedy a deficient warrant when “(1) the affidavit accompanies the warrant at the time it
is served, and (2) the warrant uses suitable words of reference which incorporate the
affidavit by reference” (MacAvoy, supra, 162 Cal.App.3d at p. 755), but found no basis to
consider the affidavit in that case because the warrant did “not in any way incorporate the
affidavit by reference,” and “there [wa]s no evidence that the affidavit accompanied the
warrant at the time of service.” (Id. at p. 758.) Here, there is no need to consider whether
the affidavit cured any defect in the warrant because the warrant itself was not facially
invalid.

                                              9
conducted at the intended, targeted premises for which there was probable cause. (Cf.
United States v. Bershchansky, supra, 788 F.3d at pp. 111-112.)
       Maryland v. Garrison, supra, 480 U.S. 79, also does not assist Gutierrez. There,
police officers obtained a warrant to search a person named McWebb and “‘the premises
known as 2036 Park Avenue third floor apartment’” for controlled substances and related
paraphernalia. (Id. at p. 80.) When they obtained the warrant, the police believed there
was only a single apartment on the third floor. When they executed the warrant and
began searching the apartment, the officers discovered illegal drugs and other contraband.
After they found the contraband, however, the officers realized there were actually two
apartments on the third floor: one belonging to McWebb; the other to Garrison. The
contraband was found in Garrison’s apartment. As soon as they became aware of the fact
that there were two apartments, police limited their search to McWebb’s residence and
discontinued any search of Garrison’s residence.
       Garrison moved to suppress the evidence found in his apartment, contending the
warrant was overly broad and void on its face and the warrantless search of his
apartment, based on probable cause to search McWebb’s home, was unreasonable. The
Supreme Court held the motion was properly denied. As to the validity-of-the-warrant
argument, the Court explained that, if the officers knew, or should have known, there
were two separate dwelling places on the third floor, they would have been obligated to
expressly exclude Garrison’s apartment from the scope of the requested warrant because
they lacked any probable cause to search Garrison’s home. However, because “[t]he
validity of the warrant must be assessed on the basis of the information that the officers
disclosed or had a duty to discover and to disclose to the issuing [m]agistrate” (Maryland
v. Garrison, supra, 480 U.S. at p. 85) and there was no evidence the officers knew about
Garrison’s third floor apartment, the Court held the warrant, “insofar as it authorized a
search that turned out to be ambiguous in scope,” was valid when issued. (Id. at p. 85.)
The Court also observed the warrant was based on probable cause to search McWebb’s
home; therefore, any duty to cease searching and obtain a new warrant was limited to
Garrison’s home, not to McWebb’s. (See id. at p. 88.)

                                             10
       Relying on language in Maryland v. Garrison, supra, 480 U.S. 79, Gutierrez
contends there was evidence from which law enforcement “knew or should have known”
that two residences existed—two address placards and twin mailboxes in front of the
building—and Officer Walthers was obligated to narrow the scope of his affidavit to the
proper address when he sought the warrant from the magistrate. His failure to do so,
Gutierrez asserts, invalidates the warrant. Gutierrez’s argument, however, disregards the
trial court’s finding accepting as credible Officer Walthers’s testimony that he did not
notice the mailboxes or small placards and its implied finding that Walthers was not
negligent in overlooking those items. In preparing the affidavit, Walthers identified the
large numerals on the front of the door facing the street that listed the address of the
building as 348 East 80th Street. He explained he had been unable to view the back of
the residence without compromising the investigation because the rear door, with the
numerals 350 above it, was not visible from the street. The trial court found Walthers
neither knew nor should have known the building was a duplex before obtaining the
warrant. Although it is possible a fact finder could have reached a different conclusion,
we cannot say the trial court’s determination as to constructive notice was improper as a
matter of law. (See id. at p. 85; see generally Palmer v. City of Long Beach (1948)
33 Cal.2d 134, 137-138 [refusing to decide issue of constructive knowledge as matter of
law; question of constructive notice generally for fact finder to decide].)
       Gutierrez contends that, even if the initial entry into unit 350 was valid, as soon as
law enforcement officers realized the warrant contained an inaccurate address it should
have ceased the search of her unit and obtained a new warrant. The Amador Court
considered and rejected a similar argument: “Defendant also argues that as soon as
Detective Gulickson realized the warrant’s description of the house was not entirely
accurate, he should have contacted the magistrate to obtain an amended warrant.
However, no reason appears for him to have done so. The reason for requiring a warrant
is ‘that it provides the detached scrutiny of a neutral magistrate, which is a more reliable
safeguard against improper searches than the hurried judgment of a law enforcement
officer “engaged in the often competitive enterprise of ferreting out crime.”’ [Citation.]

                                             11
When the police obtain a warrant, the ‘authority of the executing officer and his need to
search are carefully reviewed,’ and ‘[l]imits are imposed on the search through the
requirement of particularity.’ [Citation.] Here, the police did obtain a warrant. A neutral
and detached magistrate did determine that probable cause to search existed. The warrant
limited the search to one particular house—the house the informant showed the police.
The magistrate specifically authorized a search of that house, which was the house
actually searched. The exact address or description was not critical to the magistrate’s
probable cause determination. The error in stating the address or number of stories . . .
could not have affected the probable cause determination or authorization to search that
house. The search did not result, and could not reasonably have resulted, in the police
searching any place for which they did not have advance judicial authorization.” (Id. at
p. 396.) The Amador Court’s analysis applies equally to, and fully disposes of,
Gutierrez’s identical argument.
       Finally, Gutierrez and the Attorney General also dispute whether the law
enforcement officers acted in good faith in searching unit 350 once they realized the
address was different from that identified in the warrant. The good faith exception to the
warrant requirement is necessarily considered only when the warrant itself is invalid.
(People v. Machupa (1994) 7 Cal.4th 614, 623; see Illinois v. Krull (1987) 480 U.S. 340,
348 [107 S.Ct. 1160, 94 L.Ed.2d 364] [exclusionary rule not properly applied “to
evidence obtained by police officer whose reliance on a search warrant issued by a
neutral magistrate was objectively reasonable, even though the warrant was ultimately
found defective”]; United States v. Leon (1984) 468 U.S. 897, 920 [104 S.Ct. 3405, 82
L.Ed.2d 677 [same].) Because the warrant was valid and the search of Gutierrez’s
residence proper, we need not address the good faith exception to the warrant
requirement.




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                                   DISPOSITION
      The judgment is affirmed.




                                               PERLUSS, P. J.


      We concur:



             ZELON, J.



             BLUMENFELD, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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