Description: Oakland, California criminal defense lawyer represented defendant charged with possessing and transportation cocaine base and cannabis for sale.


In February 2016, Berkeley Police Sergeant Craig Lindenau executed an affidavit in support of a request for a warrant authorizing a search of Thomas, a Ford van he controlled, and, conditionally, apartment 29 at 795 Sycamore Avenue in Hayward (the apartment). The search would be for cocaine and materials associated with its use, sale, or transport. The proposed warrant identified the apartment as an "anticipatory location," and Lindenau's supporting affidavit stated, "When I [execute] this warrant on Thomas['s] person and vehicle, I believe that I will find keys in his possession or vehicle that will unlock the door to [the apartment] (triggering event). If Thomas['s] keys unlock [the apartment], I am requesting authorization to search the apartment . . . ."

The affidavit stated that Lindenau was investigating Thomas's suspected sale and possession for sale of cocaine, aided by two confidential informants, X and Y, who each had a history of using cocaine, of reliably informing the police about drug dealers, and of buying drugs under police supervision. The affidavit-executed on February 10, 2016-detailed how X had told Lindenau in October 2015 that Thomas was selling cocaine; Y had said the same in January 2016; under Lindenau's supervision X had bought what was confirmed to be cocaine from Thomas in November 2015; and X or Y had reported buying cocaine from Thomas in mid-December 2015, "[w]ithin 72 hours of 1/26/16," and "[w]ithin 72 hours of 2/2/16."

The affidavit also stated that, in October 2014, an Accurint check had shown the apartment as Thomas's address, although his driver's license and vehicle registrations listed a post office box in Fairfield. Lindenau explained that 795 Sycamore Avenue was a secure apartment building, so he had not been able to see Thomas enter or exit the apartment, but he had seen his Ford van parked near the building many times between December 2015 and February 2016, including the day before the warrant was requested, when it was parked across the street from the building. The affidavit opined, based on Sergeant Lindenau's training and experience with drug dealers, that the apartment, if under Thomas's control, would contain illegal drugs and materials related to their sale.

A magistrate issued the warrant at 9:31 p.m. on February 10, 2016, authorizing a search of Thomas, of the van, and, if a key to the apartment were found in his possession or in the van, of the apartment. As to the latter, the warrant read, "Anticipatory location: Having determined that probable cause for the search of [the apartment] will result when the triggering event described in the supporting affidavit occurs; and, furthermore, that there is probable cause to believe that this triggering event will occur; it is ordered that the search of [the apartment] shall be executed without undue delay upon the occurrence of the triggering event." The affidavit described the triggering event as follows: "When I serve this warrant on Thomas['s] person and vehicle, I believe that I will find keys in his possession or vehicle that will unlock the door to [the apartment]."

About an hour after the court issued the warrant, Sergeant Lindenau directed Officer Joseph Ledoux to stop the van identified in the affidavit and execute the warrant. Ledoux did so on Interstate 80, leading to a search of Thomas and the van on the highway shoulder.

At the preliminary hearing, Officer Ledoux and Sergeant Lindenau testified about the execution of the warrant. Ledoux testified that after he stopped the van he searched Thomas and found, among other things, three key rings in his pocket. When asked what he did with the keys, Ledoux responded that Thomas "pointed out the key that unlocked his apartment on Sycamore," to which defense counsel objected on foundation grounds. The court took the objection under submission, and Ledoux then testified that he gave the keys to Sergeant Lindenau and that he thought it was Lindenau who asked Thomas about the keys. The court later asked Ledoux directly how he knew that Thomas had pointed out the key that later unlocked the apartment. He answered, "So myself and Sgt. Lindenau were present with the recovery of those three sets of key chains, asked him which opened the door so we wouldn't have to open up the door with a battering ram. He pointed out a key. Sgt. Lindenau then informed me [after the subsequent search of the apartment] that that was the key that opened the door."

The prosecutor elicited from Sergeant Lindenau a summary of his conversation with Thomas: "Q. . . . [W]hen you contacted Mr. Thomas what was the conversation with him? A. I told him who I was and that I had a search warrant for him and his vehicle and his house. And I asked him to direct me to his key to [the apartment]. Q. Did he show you which key? A. Yes." On cross-examination, defense counsel elicited that the conversation had occurred while Thomas was handcuffed in the back of a police car. Asked if he had advised Thomas of his Miranda rights, Lindenau replied, "No. I explained to Mr. Thomas that he was not under arrest, and that he was being detained in handcuffs while we served a search warrant." He denied having told Thomas that if he "didn't tell you which key opened the door that you would break down the door," or he "would have to pay damages for the door," or "anything to that effect."

On redirect, Lindenau testified, "I advised him that he was not under arrest, that we had a search warrant for him and his vehicle and his residence at [the apartment]," and "I asked him to point out the key that would open that door." The court then questioned Lindenau directly: "Do you remember the words you used when you . . . advised him to point out the key?" He responded, "[T]here was a negotiation back and forth . . . . He stated that he wasn't going to tell me unless we brought him to the Sycamore address with us. I promised him that we would take him. And it was kind of a back-and-forth where he didn't believe me, . . . he wanted to go there first, and then he would point out the key, and . . . me reassuring him . . . that I would take him. Eventually he pointed [it] out to me on Highway 80. It was probably less than a two-minute conversation, and then we proceeded to the [apartment]." The court then asked, "[D]o you remember what you actually said to him before this negotiation began . . . ? [¶] [A:] I was looking at three . . . large key rings, and I asked him to point out the key to [the apartment]. And he stated that he would do that if we took him to the address. [¶] The Court: Why did you ask him . . . to point out the key that opened the address [sic] at Sycamore? [¶] [A]: It is a common practice on every search warrant we do so we don't have to damage the door. But in this specific situation it was an anticipatory search warrant, and without him possessing the key to [the apartment], the search warrant [sic] was not authorized."

At the preliminary hearing, Thomas argued that in eliciting his identification of the key the police had violated his Miranda rights. He contended that the questioning was a custodial interrogation, and that the response about the key was incriminating because it fulfilled the condition for the anticipatory warrant. The court ruled that, although "I technically suspect [Thomas was] not free to leave," he was not in custody so as to trigger
a right to Miranda warnings and, in any case, asking him to identify the key to the apartment was similar to asking permission to search and did not amount to an interrogation likely to yield an incriminating response.

Thomas subsequently filed a pretrial motion to quash the anticipatory warrant and suppress the evidence seized in the search of the apartment. He contended that there had been no probable cause to believe that the triggering event, being found in possession of a key to the apartment, would occur, and that the officers violated his right to due process by coercing him to acknowledge he had such a key by threatening to break down the apartment door. He did not contend there was a lack of probable cause to believe contraband would be found at the apartment.

The court denied the motion. The prosecutor was prepared to have Lindenau testify, but the court deemed it unnecessary. The court readily found probable cause to issue the warrant. As to the key, it reasoned as follows: "there's a contradiction whether or not one of the officers says, 'Well, if you don't let us in we'll kick in the door.' The officer who was the search warrant author said that was not what was said. But the point was, in fact they had all the keys out of his pocket, they would have taken those keys to determine whether or not they fit the lock. In fact, they had somewhat of a shortcut because if you believe he actually was asked about whether or not there was keys that fit the door and if you don't give it to us we'll kick it in, I don't think the record reflects that, but if that's what was said inevitably they would have discovered one of those keys would have fit because they had a search warrant."...
People v. Thomas (Cal. App. 2022)

Outcome: Defendant's conviction affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: