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People v. Hirata

July 28, 2009

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
DEREK HIRATA, DEFENDANT AND RESPONDENT.



Superior Court County of San Luis Obispo Super. Ct. Nos. F407913, F408359) (San Luis Obispo County).

The opinion of the court was delivered by: Gilbert, P.J.

CERTIFIED FOR PUBLICATION

"September Song" laments, "Oh, it's a long, long while from May to December." June 14 to September 5 is a shorter while. But here it is too long a while.

In an affidavit in support of a search warrant, June 14 is the date that criminal activity is alleged to have occurred. September 5 is the date the search warrant issued. Here we conclude the warrant fails the test of time, and the good faith exception to the exclusionary rule does not apply.

The trial court quashed the search warrant because the information contained in the supporting affidavit was stale. It dismissed the case when the People were unable to proceed. The People now appeal. We affirm.

FACTS

On September 4, 2007, police obtained a warrant to search 13 homes and businesses for methamphetamine, cocaine, other controlled substances, drug paraphernalia, cash, and financial records. Derek Hirata's home was one of the 13 buildings that police were authorized to search. The warrant also authorized police to search nine vehicles and 13 individuals.

In a 53-page supporting affidavit, Police Officer Chad Pfarr stated that he conducted a nine-month investigation of a drug trafficking organization run by Raymond Carper, Ruben Jimenez and Jesus Del Rio. In the affidavit, he described numerous sales of illegal controlled substances the organization made to many buyers.

During the investigation, police monitored phone calls between Carper, Jimenez and others. Between May 28 and June 14, 2007, Carper and Jimenez discussed a transaction involving the sale of $7,000 worth of drugs. In a call on May 28, Jimenez asked Carper to have Hirata "deposit $7,000 in cash into JIMENEZ['s] bank account in exchange for 'a half libra' (1/2 pound)." Jimenez said that "he'll 'work a deal with [Hirata]' and that '[t]he parts (cocaine) are two hours away.'" In a later call that day, Jimenez said that for $7,000 he would deliver a half-pound of methamphetamine and "it'll be the bomb, I'll give his money back if not good stuff." In a subsequent conversation, Carper told Jimenez that he had spoken with Hirata who said that "he'll shoot by the bank and do it."

On June 12, 2007, Hirata called Jimenez to find out when Jimenez would arrive in San Luis Obispo County. In a June 14 call, Jimenez asked Hirata to come to Jimenez's home so "'[t]hat way we can take care of it right there.'" Pfarr believed that Hirata and Jimenez met to complete the sale on that date. Thereafter, Hirata is not mentioned in the warrant affidavit.

The affidavit discusses numerous drug transactions, arrests, and communications involving Carper, Jimenez, Del Rio and others in July and August of 2007. In July, police began a surveillance of Carper's house. On July 10, police arrested Johnny Odom after he went there to purchase methamphetamine. In August, police conducted a surveillance of Del Rio's home and learned that he was dissatisfied with drugs he bought from a supplier known as "Cunado." On August 17, police arrested Del Rio's supplier for possession of 466 grams of cocaine. The affidavit contains no facts that show after June 14 there was surveillance directed at Hirata or his house, or any evidence of drug trafficking there.

On September 6, the police executed a search warrant at Hirata's home and seized, among other things, methamphetamine and other controlled substances.

The prosecutor filed a criminal complaint alleging that Hirata and 10 others had conspired to: possess methamphetamine for sale (Health & Saf. Code, § 11378); transport or sell methamphetamine (id., § 11379); possess cocaine for sale (id., § 11351); and transport or sell cocaine (id., § 11352).

Hirata filed a motion to quash the search warrant and suppress the evidence seized from his home. He claimed the search warrant is based on stale information about a drug sale that occurred on June 14, 2007, and that Pfarr did not show that "anything would still be located at [his] residence . . . on September 4, 2007." Hirata did not contest the evidence that he made numerous phone calls to Carper between 2006 and February of 2007, and did not challenge evidence of many drug sales by Carper's organization to others. But ...


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