When a magistrate considers an application for a search warrant, the magistrate must make a practical and commonsense decision about whether the affidavit in support of the application shows a fair probability police will find contraband or evidence of a crime at a particular place.
After the warrant is served and evidence is seized, defendant may file a motion to suppress the evidence because the warrant was not supported by an affidavit establishing probable cause that evidence of a crime would be present at the location for the warrant. The reviewing court’s duty is simply to ensure the magistrate had a substantial basis for the conclusion.
The United States Supreme Court has described the standard as “flexible and easy to apply.” Illinois v. Gates (1983) 462 U.S. 213, 238-239. The determination of a reasonable suspicion must be based upon commonsense judgements and inferences about human behavior. Illinois v. Wardlow (2000) 528 U.S. 119, 125.
These standards are federal, but California state law must adhere to them. People v. Souza (1994) 9 Cal. 4th 224, 232-233.
This legal framework was put to the test in the recent reported decision from the Second Appellate District in People v. Robert Andrew Delgado, a case originally filed at the Clara Shortridge Foltz courthouse in downtown Los Angeles.
In the plea bargain that resolved the case, Delgado pleaded no contest to one count of assault by means of force likely to produce great bodily injury (Penal Code § 245(a)(4)) and two counts of solicitation or recruitment of another person to participate in a criminal gang (Penal Code § 186.26(a)). Delgado also admitted gang and recruitment of a minor allegations (Penal Code §§ 186.22(b)(1)(A) and 186.26(d)).
The case arose in July 2019 when Los Angeles Police Department officers were watching Delgado’s house, which was a well-documented Highland Park gang hangout. In the affidavit that led to the issuance of a search warrant of the house, a police officer with 28 years of experience swore that he and other officers watched members of the gang pull up to Delgado’s house, enter the house for three to five minutes and then before the car left, Delgado emerged from the house, walked out to the car and then leaned into the open passenger window to talk to those inside the car. The car then left and Delgado went back inside his house.
The officers then pulled over the SUV that had left the house after such a quick stop and found $701 in cash, two illegal guns (one loaded) and a half-pound of drugs (16 grams of cocaine and 220 grams of marijuana).
Police then arrested the driver and the two passengers on gun, drug and robbery charges.
Based on the officer’s opinion, as stated in the affidavit, Delgado was supplying drugs and guns to his fellow Highland Park gang members to further the gang’s criminal enterprise. The affidavit explained that the gang conducts regular assaults, robberies and murders as techniques of intimidation so it can freely sell illegal guns and drugs without fear of reports to police. The gang also collects “taxes” from businesses. Delgado himself has four convictions: gang member with a gun, assault with a deadly weapon, carjacking and possession of a controlled substance for sale. The brevity of the interaction between Delgado and those in the car suggested it was not a social visit and suggested it was more likely a drop off or pick up of drugs and/or guns.
The magistrate signed the search warrant and police executed it, finding Delgado’s cell phone, which contained videos of him orchestrating nine beatings of others to initiate them into the Highland Park gang.
Delgado filed a motion to suppress the videos, based on lack of probable cause for the warrant. His motion noted that police did not find drugs or firearms in his house and that police did not see anyone carrying contraband into or out of the house.
The judge denied the motion to suppress and the Second Appellate District affirmed. The Second Appellate District explained that the officer’s reasonable suspicion was supported by his observations and Delgado’s history. Moreover, defense counsel offered no other commonsense inference that could be made about the behavior or to explain the brevity of this visit to the gang hangout. Therefore, the officer’s inference as the only logical inference.
We offer this article to show how an officer’s affidavit can be challenged. Defense counsel should offer an alternative, commonsense inference that could be made out of the behavior observed to rebut the officer’s inference.
For more information about motions to suppress, please click on the following articles: