People of Guam v Gallo [2017] GUSC 24 (29 December 2017)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,

Plaintiff-Appellee,

v.

JOHN ANTHONY GALLO,

Defendant-Appellant.

Supreme Court Case No.: CRA16-006
Superior Court Case No.: CF0213-13

OPINION

Filed: December 29, 2017

Cite as: 2017 Guam 24

Appeal from the Superior Court of Guam
Argued and submitted on March 3, 2017
Hagåtña, Guam

Appearing for Defendant-Appellant: James Spivey, Jr., Esq. Assistant Alternate Public Defender Alternate Public Defender 238 Archbishop F.C. Flores St., Ste. 902 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: James C. Collins, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; ROBERT J. TORRES, Associate Justice.

MARAMAN, C.J.:

[1] Defendant-Appellant John Anthony Gallo was the target of a law enforcement investigation involving three controlled-buy operations conducted using a confidential informant. A Superior Court judge issued a search warrant of Gallo’s home based on an affidavit filed with the court, and evidence was seized during the search. Gallo was subsequently charged with three counts of Delivery of a Schedule I Controlled Substance (as a first degree felony) and with Possession with Intent to Deliver a Schedule I Controlled Substance (as a first degree felony). Gallo brought a motion to suppress the evidence seized from his home before a different Superior Court judge. Gallo argued that the search warrant lacked sufficient probable cause. The reviewing judge denied the motion to suppress.
[2] Gallo pleaded guilty to the charge of Possession with Intent to Deliver a Schedule I Controlled Substance (as a first degree felony). In his plea agreement, he preserved his right to appeal the denial of his motion to suppress the evidence seized from the search of his home. He now brings this appeal, arguing that the trial court erred in denying his motion because the search warrant lacked sufficient probable cause.
[3] We find that a Superior Court judge has the authority to review a probable cause determination made by another Superior Court judge under a clear error standard of review. We further find that the trial court did not err in its review, and we therefore affirm the denial of Gallo’s Motion to Suppress.
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I. FACTUAL AND PROCEDURAL BACKGROUND

[4] On April 23, 2013, Drug Enforcement Agency Guam Police Department (DEA/GPD) Task Force Officer Jimmy B. Manglona filed an affidavit in support of an application seeking a search warrant to search Gallo’s house and car. The affidavit included the following information.
[5] On April 22, 2013, at approximately 3:50 p.m., Officer Manglona participated in a controlled-buy operation conducted by Air Force Office of Special Investigations (AFOSI) Special Agent Julian Wynn. This operation involved the use of a confidential informant to purchase marijuana from Gallo at Gallo’s Tumon residence. Officer Manglona attended the informant’s briefing, where he/she was wired and provided with $50 in marked currency. According to Special Agent Wynn, the informant had prearranged the purchase with Gallo via text message. At about 4:20 p.m., Officer Manglona, Special Agent Wynn, and other officers followed the informant to Gallo’s residence, arriving at about 4:25 p.m. Officer Manglona and fellow DEA/GPD Task Force Officer John Asuncion observed the informant approach the side entrance door of Gallo’s apartment. Officer Manglona observed the informant return one minute later and proceed back to his/her vehicle. At about 4:30 p.m., Officer Manglona and Special Agent Wynn met with the informant at a prearranged location, and the informant produced a small clear plastic zip lock bag containing a green leafy substance. Special Agent Wynn initially seized the substance, which was later transferred to GPD custody.
[6] At the debriefing, the informant informed the officers that he/she arrived at Gallo’s residence and met with Gallo, who was at the side entrance of his apartment. The informant handed Gallo the $50, and Gallo handed him/her the small zip lock bag. The informant then went back to his/her vehicle and departed the area. According to the informant, he/she did not engage in any conversation with Gallo during the transaction, which was “unusual.”
[7] At approximately 5:30 p.m., while at the AFOSI office, Officer Manglona conducted a field test of a sample of the substance provided by the informant. The results were presumptive positive for the presence of marijuana.
[8] During the investigation, Special Agent Wynn informed Officer Manglona that the controlled-buy operation of April 22 was the third successfully executed operation. The two prior operations had been conducted on March 1, 2013, and March 25, 2013, using the same informant to purchase marijuana from Gallo at his Tumon residence. Special Agent Wynn informed Officer Manglona that a sample of the substance received from the March 1 operation, a $20 marijuana cigarette joint weighing approximately 0.7 gross grams, tested presumptive positive for marijuana. During the March 25 operation, the informant arranged for a purchase of a $100 bag of marijuana weighing approximately 2.5 gross grams. A sample of the substance retrieved by the informant also tested presumptive positive for the presence of marijuana. AFOSI initially stored the evidence, but later transferred it to GPD custody via Officer Manglona.
[9]