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Filed 7/14/14 P. v. Liang CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

XUE BIN LIANG,

Defendant and Appellant.

 A138532

 (San Mateo County

 Super. Ct. No. SC070823A)

Xue Bin Liang (Liang) was convicted and sentenced after entering no contest

pleas to charges that he cultivated marijuana and possessed marijuana for sale. (Health & 

Saf. Code, §§ 11358, 11359.) Before his no contest pleas, the trial court had denied his 

motion to suppress evidence obtained by a search warrant, on the ground that Liang’s 

prior counsel had filed a suppression motion previously. Liang appealed from that ruling, 

and the trial court on remand found that Liang’s prior counsel was not ineffective for 

failing to challenge the search warrant in the original motion. Liang now contends this 

was error. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

Liang was charged with cultivating marijuana (Health & Saf. Code, § 11358), 

possessing marijuana for sale (Health & Saf. Code, § 11359), and stealing utility 

services from “PG&E” (Pen. Code, § 498, subd. (d)). The events leading up to these 
2

charges, as well as Liang’s motions to suppress evidence and his no contest pleas, 

were summarized in our unpublished opinion in a prior appeal (case No. A134581). 

We first revisit those matters for context, and then describe the ensuing proceedings.

A. Background From Prior Appeal

1. Facts

In the prior appeal, we summarized the facts as follows.

“On December 18, 2008, Daly City police responded to a residence at 365 

Frankfort Street at the request of the owner, Holly Wong (Wong). Police spoke 

with Wong inside the garage to the residence, and she told them she had been 

trying for over a month to contact the tenants who leased the residence from her. 

She asked the officers to enter the residence to ensure that no one was inside. 

“Wong said that, in an attempt to contact the tenants, she and her father had 

entered the residence earlier that day through an unlocked door in the garage. She 

smelled marijuana inside the residence, and her father told her to call the police, as 

he believed there was marijuana growing there. While speaking with Wong, one 

officer observed ‘multiple electrical wires coming out of and going through holes 

in the sheetrock inside the garage’ and a plastic bag containing green plant 

material she believed to be marijuana. The officers smelled an odor of marijuana 

coming from the residence. 

“As Wong did not have a key to the residence, [fn. omitted] Daly City police 

called the Daly City Fire Department to open a door. Daly City police entered the 

residence and found ‘numerous marijuana plants growing inside, with high power 

lights and fans.’ They did not find anyone inside the residence. 

“Daly City police exited the residence and called the San Mateo County Narcotics 

Task Force, which responded to the residence. Special agent Michael Price spoke with 

Wong, who said she had leased the property to an older Asian male, Yiu Cho Chung, in 

July 2006, for 24 months. Wong stated that she was now trying to sell the property and 

had been calling Chung since early November 2008, to ask him to vacate. She said she 
3

had not been able to reach him, and he had not returned her calls. Agent Price noted that 

all of the front windows of the residence were covered, and he observed condensation on 

two windows. From the sidewalk, he could hear a loud humming noise coming from 

inside the residence. He found these conditions consistent with use of the residence for 

the cultivation of marijuana. 

“Agent Price began preparing an application for a search warrant and instructed 

other San Mateo County Narcotics Task Force agents to monitor the house. Agent Koti 

Fakava (Fakava) saw defendant drive by the residence in a white Lexus, slowing as he 

passed. Agent Pat Moran (Moran) saw defendant enter the residence, and shortly 

thereafter, Fakava saw defendant walk out of the garage, carrying a garage door opener.

Fakava and Moran detained appellant in handcuffs and did a pat search, which produced 

a cell phone, several hundred dollars in cash, and a set of keys from his pants pocket. 

They also searched defendant’s car. 

“Soon thereafter, agents obtained a search warrant for the residence. 

They seized over 200 marijuana plants in various stages of growth, as well as 

grow lights and other equipment used in growing marijuana.” 

2. Suppression Motions and No Contest Pleas

In May 2010, Liang moved to suppress evidence seized from him at the time of 

his detention by officers Fakava and Moran, on the ground that the initial contact and 

subsequent detention and arrest were not supported by reasonable suspicion or 

probable cause, and the search of his person was conducted without a warrant. (See 

Pen. Code, § 1538.5.) Defense counsel confirmed that Liang was challenging only his 

initial detention and the search of his person. 

The court denied the motion in June 2010. 

In November 2011, with new counsel, Liang filed a second motion to suppress. 

This motion sought to suppress evidence seized pursuant to the search warrant (and 

evidence thereafter obtained), on the ground that law enforcement initially entered the 

residence without a warrant and without justification for a warrantless entry, and the 
4

search warrant relied entirely on observations gleaned during that illegal entry. Liang 

maintained that this second suppression motion should be considered, because the first 

motion to suppress had not permitted a full determination of his Fourth Amendment 

rights due to the ineffective assistance of his prior counsel, who failed to raise the 

search warrant issue. 

The trial court denied the second motion to suppress, concluding it lacked 

jurisdiction to entertain a second suppression motion. The court did not decide the 

merits of the second motion or the alleged incompetence of prior counsel. 

In December 2011, Liang entered a plea of no contest to the charges of 

cultivating marijuana and possessing marijuana for sale. The court suspended 

imposition of sentence and placed Liang on probation for three years. 

B. Prior Appeal

Liang appealed from the judgment, challenging the validity of his plea based on 

the denial of his second motion to suppress (case No. A134581). 

In October 2012, we concluded that the trial court had jurisdiction to hear 

Liang’s second motion to suppress, at least to determine whether prior counsel was 

ineffective in failing to raise the issues in the original suppression motion. (People v. 

Liang (Oct. 18, 2012, A134581) 2012 Cal.App. Unpub. Lexis 7529, at pp. *15-17 

[nonpub. opn.].) The matter was therefore remanded to the trial court “for a 

determination of whether [Liang] has shown prejudicial ineffective assistance of 

counsel in connection with former counsel’s filing and litigation of his first motion to 

suppress evidence, which he claims deprived him of a full determination of the Fourth 

Amendment issues impacting his case. If so, the superior court shall hear and decide 

his second motion to suppress. [Fn. omitted.] If the court denies the motion, 

defendant’s conviction shall remain in place. If the court grants the motion, it shall 

vacate defendant’s conviction, permit him to withdraw his plea, and conduct such 

further proceedings as it deems appropriate. [Citations.]” 
5

We explained Liang’s burden on remand as follows: “To establish that the 

alleged ineffective assistance of counsel was prejudicial, defendant must show his first 

motion would have been successful. (People v. Wharton (1991) 53 Cal.3d 522, 576 

[‘ “Where defense counsel’s failure to litigate a Fourth Amendment claim competently 

is the principal allegation of ineffectiveness, the defendant must also prove that his 

Fourth Amendment claim is meritorious and that there is a reasonable probability that 

the verdict would have been different absent the excluded evidence in order to 

demonstrate actual prejudice” ’], quoting Kimmelman v. Morrison (1986) 477 U.S. 365, 

375.) To make such a showing, defendant must overcome the Attorney General’s 

contention that the search warrant affidavit is sufficient without the contested 

observations of the officers. (People v. Weiss (1999) 20 Cal.4th 1073, 1081 [court 

‘must excise all tainted information but then must uphold the warrant if the remaining 

information establishes probable cause’].)” 

C. Proceedings on Remand

At a hearing on March 5, 2013, the court stated the issue as follows: “If we 

excised all the stuff resulting from the initial entry by the officers, was there, 

nevertheless, probable cause that supported the [issuance of] the warrant.” The parties 

agree that the following information remained in the affidavit, after excising the 

contested observations by law enforcement: (1) Wong entered the residence in an 

attempt to contact the tenants, and she smelled marijuana inside the residence; and 

(2) Agent Price observed that all of the front windows of the residence were covered, saw 

there was condensation on two windows on the third story, and heard a loud humming 

noise coming from inside the residence.1 

 

1 Accordingly, the court did not consider the observations of Daly City police in 

the garage (electrical wires passing through holes in the Sheetrock, a plastic bag 

containing green plant material, and the smell of marijuana coming from the 

residence), which police obtained after Wong reopened the garage door upon their 

arrival. Nor did the court consider the observations of the police inside the residence 

(numerous marijuana plants and high-powered lights and fans), obtained after the 

police gained entry to that location with the help of the fire department.
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In greater detail, the affidavit set forth these matters as follows. Sergeant 

Michael Price, Special Agent Supervisor for the San Mateo County Narcotics Task 

Force, asserted that Sergeant McCarthy and other officers of the Daly City Police 

Department responded to a “call for service” from Wong, the owner and landlord of a 

residence located at 365 Frankfort Street, Daly City, who had not been able to contact 

her tenant for over a month. Wong told police that, in an attempt to contact her tenant, 

Wong and her father had entered the garage that morning with a remote-controlled door 

opener and proceeded through a door that led to a stairway going to the upstairs living 

area of the residence. Wong told police that she smelled marijuana coming from the 

residence, and that her father said he believed marijuana was being grown inside the 

house and she should call the police. 

Agent Price met with Wong in front of the house. Wong gave Price the same 

information she had provided to the other officers, including that once she started 

walking up the stairs toward the residence, “she smelled what she believed to be 

marijuana coming from the residence.” Wong also explained that she had been calling 

the tenant’s telephone number daily for about a month to contact him to vacate the 

property for an upcoming sale, but the tenant did not answer or return her calls, despite 

her messages. 

While standing outside the house, Agent Price “could see that all of the windows 

to the front of the residence were covered by the closed window coverings attached to 

the inside of the windows.” He also saw that “[t]he two windows on the third story had 

condensation on them.” In addition, “[f]rom the public sidewalk in front of the 

residence in front of the foyer leading to the stairway[,] [he] could hear a loud humming 

noise coming from the interior of the residence.” According to Price, based on his 

training and experience (which was set forth in the affidavit), each of these three 

circumstances was consistent with indoor marijuana cultivation: (1) marijuana 

cultivators will keep windows covered to control how much light the marijuana plants 

receive and to prevent the plants from being detected by the public; (2) indoor 

marijuana cultivation produces a great deal of humidity, which causes condensation 
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inside the residence; and (3) people involved with indoor cultivation of marijuana use 

high-powered electric fans to force oxygen and hot air out of the growing rooms and 

improve growing conditions for the plants. 

At the hearing, Liang argued that the information did not amount to probable 

cause: Wong’s “expertise” on smelling marijuana was unknown, nearly every 

residence in this country has a window covering, the condensation on the third floor 

windows could have been “caused by cooking,” and, as to the loud humming noise 

coming from the residence, Agent Price “is free to take a fact and put his spin on it.” 

The court found that Liang failed to establish that his prior counsel was ineffective 

for not challenging the search warrant. The court explained: “[H]aving reviewed the

transcripts and in particular the affidavit in support of . . . the search warrant, the Court 

concludes that the warrant was validly issued; that the entries and seizures pursuant to the 

warrant were valid and did not violate the defendant’s Fourth Amendment rights. 

[¶] And, accordingly, the Court concludes that the claim of ineffective assistance of 

counsel is not meritorious because had the additional Fourth Amendment points been 

raised at the first motion to suppress, that the motion to suppress would have been denied, 

in any case.” 

This appeal followed. 

II. DISCUSSION

Liang contends the court erred in finding that his prior attorney did not provide 

ineffective assistance of counsel in failing to include in his suppression motion the 

theories advanced in his new attorney’s subsequent suppression motion. Specifically, he 

argues, “Because the search warrant affidavit, stripped of the observations obtained as a 

result of the warrantless and unlawful entries, is unsupported by probable cause, the 
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court’s determination that counsel was not ineffective for failing to challenge the search 

is erroneous.”2 

A. Law

The burden of proving ineffective assistance of counsel is on the defendant. 

(People v. Pope (1979) 23 Cal.3d 412, 425.) To establish constitutionally inadequate 

representation, the defendant must show that (1) counsel’s representation was deficient, 

in that it fell below an objective standard of reasonableness under prevailing professional 

norms; and (2) counsel’s deficient representation subjected the defense to prejudice, in 

that there is a reasonable probability that but for counsel’s failings the result would have 

been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.)

Where, as here, the ineffectiveness of counsel is based on counsel’s failure to 

litigate a Fourth Amendment claim, the defendant must establish that his Fourth 

Amendment claim was meritorious. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.) 

That is, as we stated in our opinion in the previous appeal, Liang had to show that the 

arguments his prior counsel allegedly should have included in his first suppression 

motion (and which his subsequent counsel did assert in his second suppression motion) 

would have been successful. 

The success of a challenge to the search warrant would have turned on whether 

the allegations in the search warrant affidavit presented a fair probability that 

contraband or evidence of a crime would be found in the residence. In deciding 

whether to issue a search warrant, the magistrate’s task “is simply to make a practical, 

common-sense decision whether, given all the circumstances set forth in the affidavit 

 

2

In the trial court, the prosecutor also argued that Liang lacked standing and the 

police officers’ initial entry was lawful. The trial court found that, assuming Liang had 

standing and the initial entry was unlawful, there was nevertheless ample probable cause 

to uphold the warrant, and therefore counsel was not ineffective. Liang addresses the 

issues of standing and the lawfulness of the initial entry in his opening brief on appeal. 

Because we agree there was probable cause to uphold the search warrant without the 

contested observations of the officers, and a challenge to the search warrant would not 

have been successful, we need not and do not address the standing issue or the lawfulness 

of the initial entry.
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before him, including the “ ‘veracity’ ” and “ ‘basis of knowledge’ ” of persons 

supplying hearsay information, there is a fair probability that contraband or evidence of 

a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 

238-239 (Gates); see People v. French (2011) 201 Cal.App.4th 1307, 1315 (French).) 

We conduct an independent review to determine whether the magistrate had a 

“substantial basis for . . . [concluding]” that probable cause existed. (Gates, supra, 462 

U.S. at p. 239; French, supra, 201 Cal.App.4th at p. 1315; People v. Camarella (1991) 

54 Cal.3d 592, 601-602.)

B. Application

After eliminating the contested observations of law enforcement, the affidavit 

provided a substantial basis for concluding that probable cause existed for the issuance 

of the search warrant. 

Wong told police that she had been unable to contact her tenant for over a month 

and that, upon approaching the living area of the residence, she “smelled marijuana” 

and believed marijuana was being grown in the premises. Wong’s veracity was 

unchallenged; furthermore, she was not an anonymous tipster or confidential informant, 

but a private citizen who identified herself, explained the situation in some detail, and 

reported to two separate police officers what she had witnessed firsthand. (See People 

v. Ramey (1976) 16 Cal.3d 263, 268-269 [“It may therefore be stated as a general 

proposition that private citizens who are witnesses to or victims of a criminal act, 

absent some circumstance that would cast doubt upon their information, should be 

considered reliable”]; People v. Terrones (1989) 212 Cal.App.3d 139, 147-148 

[reliability of citizen informant enhanced if report is from personal observation].)

In addition, Agent Price saw that all of the front windows of the residence were 

covered, there was condensation on two of the windows on the third story, and there 

was a loud humming noise coming from the residence that could be heard from the 

sidewalk. Based on his training and experience, Price recognized these to be signs of 

indoor marijuana cultivation. Price’s veracity and expertise were not challenged either; 
10

indeed, Liang’s counsel recognized that Price had greater credibility than an ordinary 

officer. 

Agent Price’s observations, combined with Wong’s repeated statement that she 

smelled marijuana coming from the residence, suggested “a fair probability that 

contraband or evidence of a crime [would] be found” in the residence. (Gates, supra, 

462 U.S. at p. 238; see People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264 

(Gotfried) [informant’s information, even if unverified, may establish probable cause if 

corroborated by law enforcement’s discovery of other indications of criminal activity].) 

Accordingly, there was a substantial basis for concluding there was probable cause to 

issue the search warrant, and a motion to suppress would have been unsuccessful. Prior 

counsel therefore did not provide prejudicial ineffective assistance.

C. Liang’s Arguments

Liang’s arguments to the contrary are unpersuasive. He argues primarily that 

we should not consider Wong’s statement that she smelled marijuana, because the 

affidavit did not contain information from which the magistrate could find she was 

qualified to recognize the odor. He urges that the aroma of fresh marijuana can 

establish probable cause to believe the contraband exists in the place to be searched

only “if the magistrate ‘finds the affiant qualified to know the odor, and it is one 

sufficiently distinctive to identify a forbidden substance.’ ” (People v. Benjamin (1999) 

77 Cal.App.4th 264, 273 (Benjamin).)

The cases on which Liang relies, however, are distinguishable. In People v. 

Cook (1975) 13 Cal.3d 663, the court ruled that the “strong aroma of fresh marijuana” 

can establish probable cause to believe contraband is present. (Id. at p. 668.) Although 

the court noted that the officer detecting the odor had asserted “a long familiarity with 

the smell of marijuana,” the court did not opine that this express statement of 

familiarity was necessary. (Id. at p. 667.) And even if it had, Cook would be 

distinguishable because, in that case, the odor of marijuana was the only basis for 

probable cause to search the defendant’s vehicle; here, not only did Wong assert that 
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she smelled marijuana, the likely presence of the contraband was corroborated by the 

observations of Agent Price.

In People v. Stegman (1985) 164 Cal.App.3d 936, a private citizen informed 

police that he smelled ether coming from a neighbor’s house. Police eventually 

obtained a warrant to search the defendant’s residence. The court rejected the 

defendant’s contention that the informant’s statement failed to constitute probable 

cause for the warrant. As Liang notes, part of the court’s reasoning was that the 

responding officers had detected the odor too, thus providing corroboration of the 

informant’s claim. (Id. at pp. 940-942.) But Stegman is not on point, because at issue 

there was the odor of ether, not the aroma of marijuana. Moreover, Stegman did not 

hold that the search warrant affidavit would have been insufficient without the 

corroboration provided by the officers. (Id. at p. 942.) And even if Wong’s detection 

of marijuana was not corroborated by officers smelling marijuana, it was corroborated 

by Agent Price’s observations of other indicia of marijuana cultivation inside the 

residence.3 

Liang’s reliance on United States v. DeLeon (9th Cir. 1992) 979 F.2d 761 is also 

misplaced. There, the appellate court found there was no probable cause to issue a 

search warrant based solely on an informant’s statement that he smelled marijuana 

growing inside a shop building, because there was “no finding that the [informant] was 

qualified to recognize the odor of growing marijuana.” (Id. at pp. 764-765.) The court 

held: “[A] warrant cannot be based on the claim of an untrained or inexperienced 

person to have smelled growing plants which have no commonly recognized odor. 

[Citations.] Nothing in this record suggests that [the informant] is qualified to detect 

the odor of the growing plants, save his claim that he had been around an unspecified 

form of marijuana some years prior. Therefore, we find that no probable cause 

 

3 Actually, officers did confirm the aroma of marijuana when they were in 

Liang’s garage. But this observation was not considered by the trial court, on the 

assumption that the police entry into the garage was unlawful. We do not consider it 

either.
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supported the warrant in this case.” (Id. at p. 765, fn. omitted, italics added.) The 

footnote in this passage, however, is telling. It reads, “The unrebutted expert testimony 

in the record is that detection of marijuana plant aroma requires a ‘trained person.’ ” 

(Id. at p. 765, fn. 1.) In the matter before us, there was no such testimony. Moreover, 

DeLeon is distinguishable because the sole basis for the issuance of the warrant was the 

report of a citizen who claimed to have smelled marijuana; here, the report by Wong 

was accompanied by complementary observations of law enforcement.

Also distinguishable is Hervey v. Estes (9th Cir. 1995) 65 F.3d 784. There, the 

court concluded that an officer’s statement that he “recognized the odors that are 

consistent with the manufacturing of [m]ethamphetamine” was insufficient to establish 

probable cause without information regarding the identity of those odors and the officer’s 

training to recognize them. (Id. at pp. 786, 790.) Here, by contrast, the odor was 

identified specifically (marijuana) and was not as esoteric as “odors that are consistent 

with the manufacturing of [m]ethamphetamine.”

In the matter before us, we do not and need not decide whether Wong’s statement 

that she smelled marijuana would in itself be sufficient to constitute probable cause for 

the search warrant. Unverified information from an untested informant may establish 

probable cause if corroborated by other facts or sources. (See Gotfried, supra, 107 

Cal.App.4th at p. 263.) “ ‘[T]he corroboration is sufficient if police investigation has 

uncovered probative indications of criminal activity along the lines suggested by the 

informant. [Citation.] Even observations of seemingly innocent activity provide 

sufficient corroboration if the anonymous tip casts the activity in a suspicious light. 

[Citations.]’ ” (Id. at p. 264; see People v. Stanley (1999) 72 Cal.App.4th 1547, 1555 

[probable cause existed for warrant to search residence for marijuana cultivation, based in 

part on a police officer’s opinion, because the “opinions of an experienced officer may 

legitimately be considered by the magistrate in making the probable cause 

determination”].) In the totality of the circumstances, including Agent Price’s 

observations and opinion as well as Wong’s statement, the affidavit provided a 

substantial basis for finding probable cause.
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Liang’s other arguments are also unpersuasive. Liang contends the affidavit casts

doubt on Wong’s reliability and her motives for informing the police, since it suggests 

that Wong wanted to remove Liang from the premises so she could sell the property. In 

addition, Liang argues, the affidavit does not disclose whether police checked on Wong’s 

credibility or verified if Wong was indeed the landlord, as opposed to a “vindictive 

partner of the tenants bent on revenge.” Nor does the affidavit indicate whether Agent 

Price attempted to obtain utility records to determine the level of electricity consumption

at the residence. But none of this precludes a finding of probable cause. Even if some 

credible argument might be made that there was no marijuana cultivation occurring inside 

the residence, the facts set forth in the affidavit were sufficient to suggest a fair 

probability that there was.

Liang next offers his own spin on the facts Agent Price set forth in the affidavit. 

He argues that residents may use window coverings to maintain privacy for legitimate 

reasons or to protect their furnishings from the sun; condensation on the third story 

windows could be due to cooking or a shower; and the loud humming noise coming 

from inside the residence could be attributed to the operation of machinery other than 

the high-powered fans used to cultivate marijuana. The question, however, is not 

whether the matters observed by Price, taken individually, might have some innocent 

explanation; the question is whether, taking all these matters in their totality, they 

suggested “a fair probability that contraband or evidence of a crime will be found” in 

the residence. (Gates, supra, 462 U.S. at p. 238.) For the reasons stated ante, they did.

Lastly, Liang points to two cases in which search warrants were upheld based on 

affidavits which, he claims, contained more supporting facts than the affidavit in this 

case. (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232-1233 [informant told 

police that defendant gave him marijuana, he detected a “ ‘heavy odor of marijuana’ ” 

inside the defendant’s house, and he saw doorways in the living room area blocked by 

bedsheets, and officers had obtained evidence that electrical usage at the house was up 

to seven times the baseline]; Benjamin, supra, 77 Cal.App.4th at pp. 268- 269 [two 

neighbors complained of a strong odor of marijuana coming from a house, police 
14

officers smelled marijuana as they approached the house, and electrical usage was two 

times that of similar locations].) However, neither Deutsch nor Benjamin held that any 

lesser amount of evidence would be inadequate to establish probable cause.4 In any 

event, it was not necessary for the affidavit in this case to be identical to the affidavit in 

Deutsch or Benjamin; as explained ante, there was a fair probability that contraband or 

evidence of a crime would be found in the residence.

In the final analysis, Liang fails to establish that his prior counsel provided 

prejudicial ineffective assistance in failing to challenge the search warrant. The trial 

court did not err.5

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, P. J.

BRUINIERS, J.

 

4

Indeed, Benjamin did not even address the issue of the sufficiency of an affidavit 

to establish probable cause, but whether the defendant had established that the affidavit 

contained intentional falsehoods. (Benjamin, supra, 77 Cal.App.4th at pp. 267-268.) 

5

Looking at it another way, the trial court effectively reached the merits of the 

second suppression motion in concluding that Liang would not have prevailed if counsel 

had challenged the search warrant initially. Since the court considered the merits of the 

search warrant issue, there was no prejudice to counsel’s omitting it from the first motion.