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Court of Appeal:
Warrant for Home Search Justified by Events Inconsistent With Non-Criminal Conduct
Magistrate Authorized Police Entry Into Street-Gang Hangout After Two Men
Visited There for Three to Five Minutes; Drugs, Guns Found in Their SUV
By a MetNews Staff Writer
A warrant was properly issued for the search of a house known to be a street-gang hangout owned by a gang member after police observed two passengers of an SUV go into the abode, return to the vehicle after three to five minutes, with one of those two known to be on parole with search conditions, and after the van was stopped and found to contain two illegal guns and a half pound of narcotics, the Court of Appeal for this district has held.
Los Angeles Police Detective Larry Burcher’s affidavit in support of warrant noted the shortness of the visit and other circumstances suggesting that the homeowner, Robert Andrew Delgado, was “possibly delivering narcotics and/or firearms” when he went up to the driver.
Justice John Shepard Wiley Jr. of Div. Eight, joined by Acting Presiding Justice Elizabeth A. Grimes, said in an opinion filed Friday that Los Angeles Superior Court Judge Teresa T. Sullivan properly denied a motion to suppress the fruits of the search. Justice Maria E. Stratton dissented.
Not Commonplace Occurrence
“[P]eople rarely drive in Los Angeles traffic for a social visit of three to five minutes while the driver waits in the car,” Wiley wrote.
Burcher wanted evidence that might show that Delgado, who had four felony convictions, was a seller of weapons and narcotics to compatriots in the Highland Park street gang. He also desired to examine cell phones and digital cameras which might “store or depict criminal street gang activity.”
The ensuing search pursuant to the warrant he obtained resulted in uncovering a video on a cell phone that showed Delgado orchestrating the beatings of nine men. It was a ritual in the initiation of them as members of the gang.
After his suppression motion was denied, Delgado pled no contest to one count of assault by means likely to produce great bodily injury and two counts of solicitating or recruiting another to actively participate in a criminal street gang, with the admission of enhancement allegations.
Reasonable Inference
“The affidavit presents reasonable support for an inference police had witnessed what probably was a transfer of illegal contraband from the hangout to the SUV,” Wiley said. “This gang was in the guns-and-drugs business.”
He observed that “[t]he purpose of the visit probably was not social,” noting the unlikelihood of the passengers, Rodrigo Medina and Ruben Ruiz, braving Los Angeles traffic for a fleeting visit, and adding:
“In context, the brevity and sequence of this in-person encounter is suspicious because it is more consistent with a pickup or dropoff. Lending substance to that inference was the immediate discovery of guns and drugs in the SUV. Medina had gone into the gang hangout; immediately afterwards police found nearly all the drugs in Medina’s pockets. Together with the gang’s surge in criminality and the locale’s status as a busy gang hangout, there was probable cause to search it for guns, drugs, and other evidence of gang-related crime.”
Hypothesis Rejected
Delgado argued that the guns and drugs could have been in the SUV before Medina and Ruiz paid him a visit. Wiley commented:
“Delgado’s speculation does not make sense of this picture. The police suspicions do; they are the product of commonsense judgments and inferences about human behavior. If the people in the SUV already had their guns and drugs, why stop by the ‘well-documented gang hangout’? The brevity and the waiting car suggested an in-person task. The guns and drugs suggested what that task had been. Police suspected they might find contraband in the hangout, and a transfer to the SUV reasonably explained what happened to it.
“The police hypothesis adds up. Delgado’s briefing offers no alternative. Nothing else in the record explained the stop.”
Courtesy Visit Suggested
At oral argument, Delgado’s court-appointed lawyer, Leonard J. Klaif of Ojai, suggested that Medina and Ruiz might have dropped by to ascertain if Delgado had contracted COVID-19.
“This is illogical: you would not drive through traffic to encounter an infectious disease face to face,” Wiley responded. “You would use your phone.”
He declared:
“In all the briefing and argument, the officers’ inference stands as the only logical contender.”
Stratton’s Dissent
That wasn’t good enough for Stratton. The warrant, she said in her dissent, was “based on nothing more than speculation devoid of relevant factual underpinning.”
She continued:
“The affiant had no basis to accuse appellant of drug and gun-running from his house on July 5, 2019, except the affiant’s own generalized and unspecific profile of the house as a gang hangout. The affidavit lacks any specific information upon which rational inferences and conclusions could be drawn. There was no observation of events in the house or of anything being ‘transferred’ from appellant to an occupant of the black Lexus. There was no information that the house contained narcotics and guns at that time or in the past. There is no explanation of what the officer meant by ‘gang hangout’: for example, an expert opinion by the gang officer that drugs, guns or contraband are usually kept or stowed at a ‘gang hangout. The total duration of activity observed by the officers was less than five minutes, perhaps a minute of which involved appellant ‘conversing,’ as the People characterized it, with the occupants of the car.”
The case is People v. Delgado, 2022 S.O.S. 1962.
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