PEOPLE v. CRAIG

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. Norman John CRAIG, Defendant and Respondent.

Cr. B–004821.

Decided: February 11, 1985

Thomas W. Sneddon, Jr., Dist. Atty., County of Santa Barbara, Gerald McC. Franklin, Sr. Deputy Dist. Atty., for plaintiff and appellant. Robert L. Helgesen, Sanger & Helgesen, Santa Barbara, for defendant and respondent.

The People appeal an order granting the defendant's motion to set aside the second count of a two count information.  (Pen.Code, §§ 995, 1238(a)(1).) 1  The information charged defendant, Norman John Craig, in count I with possession of marijuana for sale (Health & Saf.Code, § 11359) and in count II with receiving stolen property (§ 496).   The court set aside count II of the information following an order suppressing a stolen television set pursuant to defendant's section 1538.5 motion.

We find the seizure of the television set did not violate respondent's constitutional guarantees against unreasonable search and seizure (U.S. Const., 4th Amend.) and reverse.

On August 19, 1983, at 10:30 a.m., Santa Barbara Sheriff Detectives George and O'Neil and Officer Tejeda arrived at an apartment armed with a search warrant.   The warrant authorized a search of the apartment for marijuana, paraphernalia commonly associated with storage, use, and cultivation of marijuana, and personal property tending to establish the identity of persons in control of the premises.   The warrant did not give the officers specific authority to search for any items of stolen property.

Detective George instructed O'Neil to search the living room area while George was searching in other rooms of the apartment.   O'Neil apparently obtained the serial number of the television set located in the living room and by use of the telephone in the apartment asked the sheriff's office for a computer check.

Detective George, who was the only law enforcement officer to testify at the preliminary hearing, received the call back from the sheriff's office.   He was informed that the serial number matched that of a television reported stolen.   George then examined the set, which was on a stand in the corner of the living room up to three feet and not over five feet away from the wall, and double checked the serial number.   It was the same number and the television was then seized.

Detective George testified:  “I didn't have to take the T.V. apart to find it [the serial number].  It was in plain view by looking at the television set” and “․ I do not recall doing any major lifting on the set to position myself to see it.   I don't recall what it was.   It would have been very slight.”   George also testified that he believed the serial number was on the back of the set and that he did not have any suspicion that there were drugs in the set.

The California Supreme Court has recognized a “plain sight” exception which permits seizures of items not enumerated in search warrants which are found by officers executing such warrants.  “When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers' efforts.”  (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 460 P.2d 485.)

 A search warrant permits looking into any place in the premises to be searched where the officers might reasonably expect the items listed in the warrant might be hidden.  (People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 74, 157 Cal.Rptr. 716, 598 P.2d 877.)   So long as the search is reasonably calculated to locate items actually named in the warrant, the officers searching pursuant to the warrant are acting within its scope.   (Id., p. 75, 157 Cal.Rptr. 716, 598 P.2d 877.)   It was therefore presumptively reasonable for officers searching respondent's residence for marijuana, marijuana paraphernalia and certain type of documents to look at, behind, under and into the television set.

It is well settled that “․ in the course of conducting a reasonable search they [the police officers] did not have to blind themselves to what was in plain sight simply because it was disconnected with the purpose for which they entered.”  (People v. Roberts (1956) 47 Cal.2d 374, 379, 303 P.2d 721.)

 Police officers executing a warrant may seize an article not listed in the warrant if they are “․ presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred․”  (People v. Superior Court (Meyers), supra, 25 Cal.3d 67, 73, 157 Cal.Rptr. 716, 598 P.2d 877;  People v. Hill (1974) 12 Cal.3d 731, 763, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872.)

The observation and checking of the serial number on the television set here entailed no additional invasion of respondent's privacy by the officers.   They were authorized by the warrant to be in the area where the serial number of the television set could be seen.   Before the set was seized the officer had probable cause to believe it was stolen from the information obtained through official channels.   This information provided the nexus of criminal behavior required by Meyers.

Obtaining this information involved no privacy interests of respondent as it did not unreasonably prolong a permissible Fourth Amendment intrusion.   (People v. McGoughren (1979) 25 Cal.3d 577, 582–584, 159 Cal.Rptr. 191, 601 P.2d 207.)   The record indicates the search pursuant to the warrant was still taking place when the information was called back that the television set had been reported stolen.

In Skelton v. Superior Court, supra, 1 Cal.3d 144, 154, 81 Cal.Rptr. 613, 460 P.2d 485, the court stated at footnote 8:  “․ [W]here the right to conduct a search is obtained ostensibly for one purpose, it may not be used in reality for another.   However, where the search was conducted pursuant to a warrant validly issued, the burden should be on the one attacking the search to show that the motive of the officers was improper and that their conduct was unreasonable in light of their unquestionable authority to conduct a search of whatever intensiveness was required.”   The Skelton court held that in the absence of evidence of impermissible purpose or conduct, the court could reasonably assume “․ the officers were engaged in a good faith effort to execute the warrant and discover the named property when they uncovered and confiscated [the unnamed items]․”  (Id., at p. 155, 81 Cal.Rptr. 613, 460 P.2d 485.)

In the absence of proof to the contrary we must here assume the searching officer was acting in good faith in executing the warrant when he observed the serial number.   The burden was on respondent to prove otherwise.

The trial court erred in suppressing the evidence and dismissing the second count of the information.

The case is remanded with directions to the court to vacate its dismissal and order granting the 1538.5 motion.   The trial court shall enter an order denying the motion and take further appropriate proceedings.

FOOTNOTES

1.   All further references are to the Penal Code unless otherwise specified.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

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