Tuadles

I concur in the affirmance of Tuadles’s conviction but I respectfully dissent from the affirmance of Mercado’s. In my view the affidavit did not establish probable cause for the search of Mercado’s home and a reasonable, well-trained police officer would have known this.

*1786 Because the search warrant has produced the intended result or the case would not be here, it is always tempting to find probable cause by reasoning backward from the seizure of the evidence to the contents of the affidavit. We can then credit discovery of the damning evidence not to a hunch but to the officer’s “extensive training and experience”; not to just a guess but to “inferences and deductions” which are clear to police officers but often “elude an untrained person” such as an appellate court justice.

Often, in a good murder mystery, the identity of the killer eludes the reader until the last chapter. Then, when the killer is unmasked at the very end, the clues the author has dropped along the way suddenly become crystal clear. Similarly, in the case of a search warrant, it is only because the court knows the denouement in advance that it can look back at the affidavit and pick out the facts which…

*1780 Opinion

Convicted by jury of possession of marijuana for sale (Health & Saf. Code, § 11359), appellant Jude Jusus Mercado challenges the sufficiency of a search warrant affidavit and appellant Wilfredo Batoon Tuadles claims the trial court should have instructed, sua sponte, on “innocent possession.” We find no error and affirm.

Procedural and Factual Background

In December 1988 a narcotics officer obtained a search warrant for three residences: Tuadles’s apartment, a vacant apartment in the same building beneath Tuadles’s apartment, and appellant Mercado’s residence. Pursuant to the warrant marijuana, $5,700 in cash, and narcotics paraphernalia were recovered. Tuadles and Mercado were jointly charged with possession of marijuana for sale. In superior court Mercado moved to suppress marijuana found at his home. 1 The' motion was denied. A jury convicted both appellants.

Discussion

I.

Except for the narrow instructional issue raised by Tuadles, which we separately consider, the events of the trial are irrelevant to this appeal.

Dispositive of Mercado’s appeal is a pretrial event, the issuance of a search warrant. If the magistrate correctly found probable cause for its…

WOODS (Fred), J.

Convicted by jury of possession of marijuana for sale (Health & Saf. Code, § 11359), appellant Jude Jusus Mercado challenges the sufficiency of a search warrant affidavit and appellant Wilfredo Batoon Tuadles claims the trial court should have instructed, sua sponte, on "innocent possession." We find no error and affirm.

In December 1988 a narcotics officer obtained a search warrant for three residences: Tuadles's apartment, a vacant apartment in the same building beneath Tuadles's apartment, and appellant Mercado's residence. Pursuant to the warrant marijuana, $5,700 in cash, and narcotics paraphernalia were recovered. Tuadles and Mercado were jointly charged with possession of marijuana for sale. In superior court Mercado moved to suppress marijuana found at his home. [1] The motion was denied. A jury convicted both appellants.

Except for the narrow instructional issue raised by Tuadles, which we separately consider, the events of the trial are irrelevant to this appeal.

Dispositive of Mercado's appeal is a pretrial event, the issuance of a search warrant. If the magistrate correctly found probable cause for its issuance then Mercado's conviction…