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The People v. Dwayne Edward Verna


December 22, 2010


San Mateo County Super. Ct. No. SC068951

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

P. v. Verna



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Dwayne Edward Verna was charged by information with felony possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) He moved unsuccessfully to suppress evidence. (Pen. Code, § 1538.5.) Thereafter, appellant pleaded no contest to possession of methamphetamine for sale and was placed on supervised probation for three years. On appeal,*fn1 he argues that the trial court erred in denying his motion to suppress because the prosecution did not offer sufficient evidence that he was arrested pursuant to a valid search warrant. We disagree and affirm.


A. Factual Basis to Support Search Warrant

In the statement of probable cause for the search warrant, San Bruno Police Detective Kevin McMullan stated that he had engaged in an investigation related to narcotic sales at 1021 Montgomery Avenue. A confidential informant helped officers gather information by participating in a controlled buy with the officers, targeted at 1021 Montgomery Avenue. The officers assisting in the investigation also conducted surveillance of 1021 Montgomery Avenue and observed a male stop a vehicle in front of that address. Another male exited the property, approached the vehicle and extended his hand toward the interior of the driver area of the vehicle. The driver immediately extended his hand to the other man, and then drove away. Further, a local business owner informed police about suspicious activity occurring at 1021 Montgomery Avenue, with vehicles stopping frequently at that address during normal business hours. He observed people either coming out of 1021 Montgomery Avenue, meeting with subjects in the vehicle, or going into 1021 Montgomery Avenue for a few minutes and leaving a short time later.

Given these facts, Detective McMullan sought a warrant to search: "1021 Montgomery Avenue San Bruno, San Mateo County, California [¶] . . . [¶] including all rooms, storage areas, receptacles, safes, trash containers and buildings used in connection with said premises and building." A description of the residence was attached to the warrant, which read as follows: "1021 Montgomery Avenue, San Bruno, San Mateo County California: is further described as a single story residence, blue in color with white trim, located on the west side of Montgomery Avenue North of Hermosa Street, San Bruno. The number '1021' appears in black numbers set on a white background affixed to the front of the residence directly south of the front door."

Detective McMullan testified that before he requested a search warrant, he was aware that there were two buildings on the 1021 Montgomery Avenue lot. He believed that the two structures on the lot were both addressed 1021 Montgomery Avenue. However, the buildings were not physically connected; rather they were approximately 20 feet apart and there was a cement pathway between the two buildings. Additionally, there were several nonoperational vehicles on the property including a boat; they blocked other vehicles from entering the lot, but people could still walk between the buildings.

Notwithstanding that Detective McMullan had previously seen the numbers "1021" in the front of the house, the San Mateo Building and Planning Department records showed a 1013 and 1019 address in consecutive order, but did not show a 1021. The city had red-tagged the buildings on the subject property because they were uninhabitable and not up to building code. Furthermore, both buildings were listed as being on the same lot.

B. Warrant Execution

Detective McMullan believed that the search warrant he requested included 1021 Montgomery Avenue and any and all storage containers and other buildings on the property. Officers split into two teams to execute the search warrant. For purposes of officer safety and to ensure that no one exited the premises through the back of the property, the officers predetermined that they would search the rear building. When the officers arrived to execute the search warrant, "1021" was clearly posted on a sign to the right of the doorway of the front building to be searched. The front team searched the front house, and the rear team searched the rear building in the back of the property. The rear building was constructed from what appeared to be cinder blocks. It had commercial roll-up doors on the west side of the building with a normal sized entrance door on the east side of the building. Detective McMullan could not recall if there were any windows in the rear building, but it appeared to look like a garage.

All of the contraband that was seized during the search was discovered in the rear building. One of the items seized was appellant's driver license, which listed 1021 Montgomery Avenue as his address. Officers could not determine the purpose of the rear building from the outside, but believed it to be a garage used in connection with the front building. There were no mailboxes posted by the back building and both buildings were enclosed by a 10-foot fence. The entire lot on the date of the search was owned by the same person, appellant's father. Further, the rear building was not easily visible from the street or sidewalk, due to the height of the fence.


A. Standard of Review

" 'In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.' [Citation.]" (People v. Gemmill (2008) 162 Cal.App.4th 958, 963.)

B. Warrant Documents Were Sufficient to Comply with Fourth Amendment's Particularity Requirement

Appellant contends that the search warrant relied upon by the officers did not particularly describe the building that they intended to search. To guard against exploratory searches, the law requires that a warrant particularly describe the place to be searched. (U.S. Const., 4th Amend.; Maryland v. Garrison (1987) 480 U.S. 79, 84.) When the warrant is directed at a dwelling, the particular place refers to a single living unit; i.e., the residence of one person or family. (People v. MacAvoy (1984) 162 Cal.App.3d 746, 754; see U.S. v. Cannon (9th Cir. 2001) 264 F.3d 875, 880.) A warrant to search a single dwelling unit will also permit the search of outbuildings such as a garage, but it will not extend to a search of multiple dwellings on the same property unless there is probable cause to search each unit or a reasonable basis for believing that the entire premises are a single living unit. (People v. MacAvoy, supra, 162 Cal.App.3d at p. 754; see People v. Dumas (1973) 9 Cal.3d 871, 881, fn. 5.)

In this case, the facts recited in the warrant affidavit supplied probable cause to believe that the individual identified as the suspected source of supply had access to the buildings at 1021 Montgomery Avenue and was trafficking drugs from the entire premises. There was probable cause to believe that drugs and evidence of drug dealing could be found in the front building as well as in the back rear building, which from all outward appearances appeared to be a garage rather than a residence, over which persons in the front building would presumably have control. The warrant that issued authorized a search of the entire premises, including the buildings used in connection with the premises and building. Furthermore, the premises are commonly referenced by the police as 1021 Montgomery Avenue, and the only address visible from the street is the one that identified the building as 1021 Montgomery Avenue. It is also the only address used by appellant as his legal address.

In People v. Smith (1994) 21 Cal.App.4th 942, 949, the court upheld a search of a barn located on a rural property, based on a warrant that authorized a search of the premises and " 'all rooms and buildings, outbuildings, garages, . . . used in connection with or within the curtilage of said premises and building(s) . . . .' " (Italics omitted.) While not preferable, the failure to expressly state that the officers intended to search the barn did not compel the conclusion that the particularity clause has been violated. (Ibid.) The court in Smith reasoned that a warrant to search a particular premises located at a certain address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integral unit. (Id. at p. 950.)

Similar to People v. Smith, supra, 21 Cal.App.4th 942, it was reasonable for the officers executing the warrant to believe that appellant had access to both buildings and thus it was proper for them to search both buildings because they assumed them to be a part of a single integral unit. When they discovered during execution of the warrant that appellant sporadically lived in the rear building, which had been converted into a partial living quarter, this increased, rather than decreased, the degree of likelihood that drugs and related items would be found inside. The officers did not exceed the scope of the warrant in searching the living quarters within the rear building.

A search warrant requires realistic and commonsense descriptions of the places to be searched; technical requirements of elaborate specificity have no proper place in this area. (People v. Minder (1996) 46 Cal.App.4th 1784, 1788.) Using this approach, the trial court correctly determined that the search of the rear building was authorized by the search warrant because it properly specified the premises that were intended to be searched.


The judgment is affirmed.

We concur:

Ruvolo, P.J. Sepulveda, J.

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