“Nails” v. “Sweet & Low” and 4th Amendment probable cause

“Nails” and “Sweet & Low” occupy decidedly polar opposite descriptives in the Urban Dictionary. And, while it is difficult to conceive that august appellate justices would choose to debate in such terms, a recent, relatively mundane, Court of Appeal search & seizure decision seemed to turn, in part, on the “weight” in such terminology.

Robert Andrew Delgado was a convicted felon and documented, no doubt leader of the notorious Highland Park criminal street gang, which traded in guns and drugs – a trade facilitated by violence and intimidation over a four decade period. Delgado’s residence was a well known “gang hangout” (HQ), thus drawing particular law enforcement attention and scrutiny.

One summer evening, while police looked on, a black Lexus SUV pulled up in front of this residence. Two men emerged from the SUV and entered the house. One man, the police knew, was a documented member of the gang on active parole for robbery with search conditions, known in law enforcement circles as, “rolling probable cause.” The two came out of the house five minutes later, followed moments later by Delgado, himself, who leaned into the open front passenger window of the SUV for a few seconds and then immediately returned inside the residence. So far, nothing suspicious, right? Happens all the time, right?

When officers pulled over the SUV, as they had an uncontested right to do, they found a female gang “associate” at the wheel and the parolee and his sidekick as passengers. Inside the SUV the officers found $700 in cash, two illegal handguns and a half-pound of assorted drugs. All the drugs were found on the person of the gang member/parolee’s male associate, who was not necessarily subject to random law enforcement search.

Suspecting that Delgado just might be the source of the drugs, guns and money found in the SUV and on the gentleman in the SUV, the police applied to a “neutral and detached magistrate” for a search warrant, as commanded by the Fourth Amendment. A magistrate, whose daytime job is as a sitting Superior Court judge, issued a warrant to search Delgado’s residence for guns and drugs and “cellular phones and digital cameras that store or depict gang activity.” When police searched the residence, they found a mobile phone with “videos of Delgado orchestrating nine beatings to initiate new members into the Highland Park gang.” Related, severe charges followed, as did Delgado’s motion to suppress the video evidence as the tainted fruit of a search warrant issued without probable cause, which the trial court denied, compelling Delgado’s guilty plea and appeal.

On appeal, Delgado challenged the trial court’s ruling, requiring the appellate court to “assay probable cause.” Mind you, two judges, the magistrate and trial judge, had already found probable cause to support the issuance of the warrant. On appeal those determinations are entitled to significant deference. The two justice majority noted its job was to determine whether the magistrate had a “substantial basis” to conclude that the affidavit demonstrated a “fair probability” that the police would find contraband or evidence in Delgado’s house. To my mind, it was a near certainty they would, as they did.

The majority focused on the cache of drugs and guns found in the SUV after the brief, furtive stop at Delgado’s residence, a visit he was clearly connected to. The two-justice majority found that the officers reasonably suspected the two men in the SUV might have moved the illegal guns and half pound of drugs into the vehicle from the residence. Profoundly, the majority opinion noted, concerning the drugs, “(For perspective, 15 four inch nails weigh about half a pound.)”

Why the majority chose to “translate” a half pound of drugs into an old style hardware store measure of four inch nails is a bit weird, until one gets to the dissent. Needless to say, the majority found plenty of probable cause supporting the issuance of the search warrant, end of discussion.

The dissenting justice framed her decision thusly, “does personal possession of drugs and a gun by a gang member after being in a house for three to five minutes provide probable cause to believe he got those items from the residence he was visiting?” “I conclude the answer is ‘no.’” There’s no need to debate or discuss the mischaracterizations and omissions rife in this proposition. Rather, our focus here centers on the dissenter’s characterization of the drugs as so-called “personal possession” of half a pound of street drugs.

The dissenting justice noted that the gang member had 15.84 grams of cocaine (unsaid, about half an ounce, worth about $2,000 on the street), 200 grams of marijuana, 19 “gross grams of cannabis” (whatever that is ???), a loaded fireman and $701 in cash. There were additional drugs and a firearm in the SUV. Any comparison between this find and the drug stash Hunter S. Thompson gathered in advance of his dash from L.A. to Sin City with legendary attorney Oscar Zeta Acosta, aka “Dr. Gonzo,” in “Fear and Loathing in Las Vegas is purely coincidental, I suppose. Nevertheless, the dissenting justice found the warrant was based on “nothing more than speculation.” Dismissing the suspicious short duration of the visit to Delgado’s house and its surrounding circumstances, the dissenter claimed that the amount of drugs “were indicative of personal use. (For comparison, a pink package of Sweet and Low contains 1 gram.)” The dissenter concluded that,”[f]or all we know…[the gang member] was on his way to a night out…because the small amounts were indicative of personal use.” That would be quite a night of drug fueled frolic.

Why the justice chose to bring up the measure of Sweet and Low is head scratching, and no doubt either prompted or was a response to the majority’s four-inch nail comparison. But what this “analogy” ignores is that a half a pound (of illegal) drugs amounts to approximately 226 grams. That’s enough Sweet and Low to fuel a gala at the Jonathan Club. Seems like probable cause to this writer.

Lastly, the dissenting justice chose to go to an issue the majority did not need to address, namely the “good faith” exception to the Exclusionary Rule. This doctrine permits the admission of evidence acquired by law enforcement in “good faith” reliance on a magistrate’s determination that probable cause existed by dint of the issuance of a search warrant, even if probable cause is later found lacking. An exception to that exception exists when no officer could “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” The dissenting justice found the affiant officer’s belief his affidavit established probable cause was “entirely unreasonable.”

In context, this determination runs smack into the face of the determinations of four judicial officers – the magistrate (Superior Court judge), the Superior Court trial judge, and two justices on the appellate bench – that probable cause indeed existed. While reasonable minds can disagree, this is quite a stretch of that notion. As the majority pointed out, the determination of whether probable cause exists is a common sense determination based on judgements and inferences about human behavior.

This little decision will stand, as there is nothing here for the Supreme Court to review. And, as it fails to satisfy any of the criteria for publication under Rule 8.1105, it will waste a few pages of Cal.App.5th. But we are, at last, treated to a nails v. sweetener literary battle.