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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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