Filed 7/14/14 P. v. Abreu CA2/8
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B251322

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA363746)
         v.

FREDERICO AUGUSTO ABREU,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court for the County of Los Angeles.
Norman Shapiro, Judge. Affirmed.


         Robert A. Schwartz for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Erika D.
Jackson, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ___________________________
                                       SUMMARY
       Defendant Frederico Augusto Abreu appeals from the denial of his motion to
suppress evidence. We find no merit in his contentions and affirm the judgment.
                                         FACTS
       After unsuccessful attempts to quash a search warrant and to suppress evidence,
defendant pled no contest to four felony counts in an open plea to the court: possession
for sale of methamphetamine (Health & Saf. Code, § 11378); possession for sale of
gamma-hydroxybutyrate (GHB) (Health & Saf. Code, § 11351); possession of
clonazepam (Health & Saf. Code, § 11377); and having a counterfeit seal (a counterfeit
California driver’s license) (Pen. Code, § 472). The court placed defendant on three
years formal probation with various terms and conditions, and made other orders not at
issue in this appeal.
       During the proceedings below, defendant filed a motion to quash a search warrant
that covered two different locations: 1280 North Laurel Avenue, no. 7 (the Laurel
apartment), and 1210 North Cherokee Avenue, no. 120 (the Cherokee apartment). The
recovery of narcotics and other evidence at the Cherokee apartment provided the basis for
the charges against defendant. The motion to quash was denied.
       A few months later, defendant moved to suppress all the evidence acquired from a
warrantless vehicle search, incident to defendant’s arrest, that preceded issuance of the
search warrant for the Laurel and Cherokee apartments (and upon which the search
warrant was partially based). Defendant contended his former counsel neglected to
challenge the warrantless seizure of evidence from the vehicle search, without which
there was no probable cause to search the Cherokee apartment. The evidence presented
at the suppression hearing in July 2012 revealed the following facts.
       In September 2009, Bernadette Gambino was a detective assigned to investigate
sales of narcotics in West Hollywood. She testified that on September 2, 2009, she
received information that defendant was involved in the trafficking and sale of narcotics.
She learned defendant was a wanted fugitive in Florida for trafficking of
methamphetamine, and a citizen informant told her of sales of narcotics in the building

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where defendant (and the informant) lived (the Laurel Avenue location). The informant
told the detective there were sales of narcotics from three apartments (nos. 2, 7, and 6).
The informant said defendant lived in Apartment 6, and went in and out of Apartment 7.
The informant had witnessed several “hand-to-hand drug transactions” between
individuals from Apartment 2 and Apartment 7, and “identif[ied] [defendant] as one of
the individuals involved in the narcotics transaction.” Detective Gambino learned that an
individual named Franklin Dunham lived in Apartment 7, and the informant told her that
defendant “had been living in Apartment Number 6 but that approximately one to
two weeks prior, he had been staying with [Mr. Dunham] in Apartment Number 7.”
When cross-examined, Detective Gambino said she “[didn’t] remember if it [the
information from the informant about hand-to-hand transactions] was before September
2nd . . . .”
        Detective Gambino testified that, “within the first few weeks of September,” she
received the information about the Florida warrant for defendant. Detective Gambino
advised the citizen informant to let the police know immediately if the informant saw
defendant. On September 27, 2009, the informant called and said he or she had seen
defendant in the courtyard of the Laurel Avenue apartment complex wearing a blond wig
and a baseball hat. On September 29, 2009, the detective contacted the Broward County
Sheriff’s Department, and confirmed a warrant for defendant was still outstanding.
        On September 29, 2009, Detective Gambino and her partner were in separate cars
conducting undercover surveillance of the Laurel Avenue location. Detective Gambino’s
partner observed defendant and another man, later identified as Mr. Dunham, loading
items into a maroon-colored Kia. Detective Gambino then approached on foot and saw
defendant standing next to the passenger door of the Kia, “and I identified that it was
him” based on pictures of defendant she had previously obtained. Mr. Dunham was in
the driver’s seat of the car, getting ready to drive off.
        When she saw defendant, “he had attempted to get in the car. . . . I think his kind
of butt was sitting on the seat with his feet still at the curb, or on the cement, and I kind of
grabbed him and had him get out of the car.” (At this time, Detective Gambino was

                                               3
alone; her partner “didn’t arrive until [defendant] was already on the ground” (as
described, post).)
       Defendant “became very agitated and hysterical” when Detective Gambino
ordered him to step out of the vehicle. The detective asked defendant his name, and he
said his name was Henrique and his identification was in Apartment 7. Detective
Gambino testified: “He kept arguing with me. I put my hand on his wrist. I had him –
he was seated with his feet on the curb. I had him get out of the car. I turned him toward
the car. He was struggling with me. He kept wanting to break free from my grasp and
kept telling me he needed to go to Apartment 7 to get his I.D. When that didn’t happen,
he had his body get rigid, and he – he kind of – went limp but didn’t go limp and was
kind of jerking and shaking and laid his body in the curb. So I had my sergeant called
paramedics in the event that he was actually suffering a seizure.” (The sergeant, who was
“maybe a half a block away,” arrived “[w]ithin a minute, maybe.”)
       When Detective Gambino grabbed defendant, “[h]e had – there was a wallet, and I
had him put it down.” She described it as “like a man purse,” “large enough to contain a
smaller wallet, but it wasn’t like a full-on bag.” The prosecutor asked Detective
Gambino where the bag was when she initially arrested defendant, and the detective
replied: “I don’t remember if it was right there on the passenger seat or in his hand or on
the passenger floorboard. I think he had it in his hand when he entered the car, but I can’t
be sure. I don’t remember. It was 2009.” Detective Gambino said, “I got [defendant’s]
bag [the “man purse”] at the time that he was in the gutter to get his I.D., which was – it
was either on the passenger’s seat or the floorboard.” When she retrieved the man purse,
she did not know what was in it, and “retrieved the bag to take a look at it . . . .” She had
the bag before the paramedics arrived. When the paramedics arrived, defendant was
“laying in the gutter,” “[r]ight next to the car,” “[k]ind of on his side.” He was not
handcuffed.
       Detective Gambino searched the bag and found a wallet with a California driver’s
license, a pill container with methamphetamine in it, and an iPhone.



                                              4
       The other individual identified himself as Franklin Dunham, and cooperated with
the police. He told Detective Gambino the car was a rental car and he had rented it.
After she searched defendant’s “man purse” and found methamphetamine, Detective
Gambino asked Mr. Dunham if she was “going to find anymore methamphetamine in the
car,” and he replied, “I hope not.” Then Detective Gambino directed other officers who
had arrived to search the vehicle while she “maintained visual of [defendant] being
treated by the paramedics.” (The search of the car “was done while the paramedics or
prior to the paramedics getting there. It was all done simultaneously.”) The officers who
searched the car found a case with a blond wig in the back seat, and they found a black
toiletry bag containing methamphetamine and syringes in the trunk. Mr. Dunham
acknowledged that the toiletry bag belonged to him. Mr. Dunham was arrested.
       The paramedics transported defendant to a hospital, and after a determination there
was no medical emergency, police took him to the West Hollywood sheriff’s station,
where he was booked. Detective Gambino advised Florida authorities that defendant was
in custody, “and they were to send me an extradition order . . . .” Then she interviewed
defendant, who waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.)
       Defendant told Detective Gambino he left Florida because he was about to be
arrested and did not want to go to jail. He was living in Apartment 6 at 1280 North
Laurel originally. Then, sometime before August 26, 2009, he rented the Cherokee
apartment, but he stayed with Mr. Dunham three or four nights a week because he was
allergic to the carpet in the Cherokee apartment.
       Detective Gambino had possession of defendant’s cell phone from the time she
arrested defendant and throughout the interview. The phone was on. During that time,
“there were several text messages that would come in, and it wasn’t like I had to access
the phone. It was – just appeared.” “In plain view, I was able to read it.” One of the
texts said, “Hey, handsome, I want a hundred vitamins and a gallon of water.” Based on
her training and experience as a narcotics detective, this was slang; “a gallon of water
could be liquid meth, or it could be G.H.B. or 1, 4-butanediol, depending on the grade it
was. The vitamins could be any type of narcotic, could be ecstasy, could be Xanax, could

                                             5
be – whatever slang he used for whatever the vitamins are.” The detective did not
remember how many similar text messages came in, but “[i]t was throughout the night.”
       Detective Gambino then applied for a search warrant for the Laurel apartment
(Mr. Dunham’s apartment) and the Cherokee apartment (where defendant told her he was
residing). At the Cherokee apartment, police recovered, in addition to narcotics, a
fraudulent California driver’s license (with Mr. Dunham’s name and defendant’s
photograph), as well as a gas company bill and a water and power bill in Mr. Dunham’s
name for the Cherokee apartment. (When Detective Gambino confronted Mr. Dunham
with this information, he told her he had no knowledge the Cherokee apartment was in
his name.)
       Defendant testified. He said that the “man purse” was a computer bag containing
his laptop computer, two phones, his wallet and a pill bottle with prescription medication
for heartburn. The bag was in the backseat of the car. Defendant said he did not live at
the Cherokee apartment; he was helping Mr. Dunham to move there; and he denied
telling the detective that he rented the Cherokee apartment but often stayed with
Mr. Dunham. Defendant acknowledged he had been staying at the Cherokee location
periodically, but insisted it was Mr. Dunham’s apartment.
       The trial court denied defendant’s motion to suppress, observing that “it’s a close
case.” “If this was strictly and simply strictly a Gant issue [(Arizona v. Gant (2009) 556
U.S. 332 (Gant))], it would be the court’s feeling that the officer perhaps would not be
justified in going into that man bag, man purse, without a warrant. But I think, under the
circumstances of this case, that the sergeant was justified in retrieving that, under the
circumstances.” Those circumstances were that defendant was “in close proximity to the
vehicle, in the gutter, not secured,” and in addition defendant, the court observed, was
“significantly larger than” Detective Gambino and “could have easily overpowered the
[detective], . . . and, in fact, retrieve the bag.”
       Defendant filed a timely appeal of the trial court’s order.




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                                      DISCUSSION
       In reviewing a ruling on a motion to suppress, we defer to the trial court’s factual
findings where supported by substantial evidence, and exercise our independent judgment
in determining whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment. (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504 (Hirata).)
       Defendant contends (1) there was no probable cause justifying the search warrant
for the Cherokee apartment; (2) the information tending to establish that defendant was
involved in narcotics transactions was stale; and (3) the warrantless seizure of the items
in defendant’s “man purse” was illegal under Gant, supra, 556 U.S. 332, and without that
information in the search warrant, “there was no present probable cause to revive
otherwise stale information.” None of these contentions has merit.
       First, there was probable cause for the search of the Cherokee apartment.
       “The question facing a reviewing court asked to determine whether probable cause
supported the issuance of the warrant is whether the magistrate had a substantial basis for
concluding a fair probability existed that a search would uncover wrongdoing.
[Citations.] ‘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.’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978,
1040-1041 (Kraft).)
       Here, the citizen informant described Apartments 2, 6 and 7 at the Laurel Avenue
location as having constant foot traffic between the hours of 10:00 p.m. and 2:00 a.m.;
identified the occupants of those apartments, including defendant; and also witnessed
several “hand-to-hand drug transactions” between individuals in Apartment 2 and
Apartment 7. The informant told Detective Gambino that defendant had moved from
Apartment 6 one or two weeks earlier and was staying with Mr. Dunham in Apartment 7.
The detective knew that defendant was a fugitive wanted in Florida for narcotics
trafficking. After his arrest, defendant told the detective he rented the Cherokee

                                             7
apartment. And, while interrogating defendant, Detective Gambino observed text
messages, in plain view on defendant’s cell phone, one of them saying, “Hey, handsome,
I want a hundred vitamins and a gallon of water,” which the detective knew to be slang
for various types of narcotics. Certainly these circumstances showed a “fair probability”
(Kraft, supra, 23 Cal.4th at p. 1041) that evidence of narcotics trafficking would be found
at the Cherokee apartment defendant told Detective Gambino he had rented.
       Second, we do not agree that the informant’s information, tending to establish that
defendant was involved in narcotics transactions at the Laurel Avenue location, was
“stale.” The search warrant affidavit was executed September 30, 2009, and states that
on September 2, 2009, the detective learned defendant was wanted in Florida, and that his
last known address was Apartment 6 at the Laurel Avenue location. The affidavit further
states that “[d]uring the last several weeks,” police had received several complaints from
the citizen informant about drug sales at the Laurel Avenue location; and that on
September 27, the citizen informant contacted police to tell them defendant was seen in
the courtyard of the Laurel Avenue location wearing a blond wig and a baseball cap. The
detective then confirmed the Florida warrant was active and set up the undercover
surveillance operation to take defendant into custody.
       Defendant asserts that the informant’s description of the drug transactions at the
Laurel complex “was about five weeks old” when the search warrant was issued, so it
was “stale” and could not furnish probable cause, citing Hirata, supra, 175 Cal.App.4th
at page 1504 (82-day delay between a drug transaction and issuance of search warrant);
People v. Hulland (2003) 110 Cal.App.4th 1646, 1648, 1652 (Hulland) (52-day delay
between controlled drug buy and issuance of search warrant; while there is no bright line
rule, “delays of more than four weeks are generally considered insufficient to
demonstrate present probable cause”); and Hemler v. Superior Court (1975) 44
Cal.App.3d 430, 432-433 (delay of 34 days between a controlled sale of cocaine and the
officer’s affidavit for a search warrant).
       The facts do not support defendant’s claim, and neither do the authorities cited.
The affidavit does not, as defendant suggests, state that the informant witnessed the drug

                                             8
sales several weeks before September 2, 2009; it clearly states the information was
received “[d]uring the last several weeks,” and refers to “several complaints” from the
citizen informant. Further, the cases defendant cites involve specific drug transactions as
the basis for the warrant, followed by inexplicable delays in seeking the warrant. This is
not such a case. (See Hulland, supra, 110 Cal.App.4th at p. 1652 [“[t]he question of
staleness turns on the facts of each particular case”; [“[i]f circumstances would justify a
person of ordinary prudence to conclude that an activity had continued to the present
time, then the passage of time will not render the information stale”].)
       Third, we also reject the claim that the warrantless seizure of defendant’s man
purse was illegal under Gant. In that case, the court held: “Police may search a vehicle
incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest. When these justifications are absent, a search
of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that
another exception to the warrant requirement applies.” (Gant, supra, 556 U.S. at p. 351.)
       Here, the trial court found defendant was “in close proximity to the vehicle, in the
gutter, not secured,” and “could have easily overpowered the [detective] . . . .”
Substantial evidence supported these findings. The court observed both Detective
Gambino and defendant, and Detective Gambino testified that she retrieved the man
purse before the paramedics arrived, and defendant was “laying in the gutter,” “[r]ight
next to the car,” “[k]ind of on his side,” and was not handcuffed. Since defendant was
“within reaching distance of the passenger compartment at the time of the search” (Gant,
at p. 51) and was unsecured (indeed, the detective believed him to be feigning illness),
the search of the man purse without a warrant was reasonable.
                                      DISPOSITION
       The judgment is affirmed.
                                                          GRIMES, J.
       We concur:
                             BIGELOW, P. J.               RUBIN, J.

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