PEOPLE v. SUPERIOR COURT COUNTY OF SAN DIEGO

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent;

Susan Marie DRISCOLL, Real Party in Interest. Susan Marie DRISCOLL, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Civs. 16489, 16509.

Decided: March 18, 1977

Milton J. Silverman, San Diego, for Susan Marie Driscoll. Nelson Brav and Alex Landon, San Diego, amicus curiae for Susan Marie Driscoll. Hugh McManus, Deputy Dist. Atty., for the People. Karl J. Phaler, Deputy Atty. Gen., San Diego, amicus curiae for the People.

The People and Susan Marie Driscoll both claim to be aggrieved by an order of the superior court which suppresses evidence, and both have sought peremptory writs of mandate from this Court to set aside portions of the order. Since the issues raised in the petitions are closely related, the matters are consolidated.

The Attorney General has filed an amicus curiae brief in support of the People's petition, and Driscoll has filed points and authorities in opposition. The Criminal Defense Lawyers Club of San Diego and the California Attorneys for Criminal Justice have filed amici curiae briefs in support of Driscoll's petition. The People have filed points and authorities in opposition. An alternative writ of mandate or order to show cause would add nothing to the full presentation already made. Based on the showing made, the remedy is clear and a peremptory writ should issue without the delay of further proceedings (Code Civ. Proc. § 1088; see Goodenough v. Superior Court, 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165). The trial is set for March 21, 1977.

Driscoll is charged with murdering her husband and two children.

On September 27, 1976 Driscoll spent the night at her parents' home. The next morning she showed her parents a letter which she had written; both parents read the letter. Driscoll stated to her parents, “All of my family is dead.” She told her father that she wished to have the letter shown to Richard Avery, her social worker.

That afternoon, Driscoll's father handed the letter to Avery. Avery looked at the letter and advised the father he ought to give the letter to his attorney. Driscoll's father gave the letter to Milton Silverman, her attorney in this matter, later that day.

The same day, Avery called the sheriff's department to report a possible crime at 4670 Mayapan Drive, La Mesa, California, Driscoll's residence. There, deputies found the bodies of her husband and two children.

The district attorney's office learned of the letter and, on October 6, made a “Motion in Lieu of Search Warrant to Compel the Release of Evidence Being Withheld From Law Enforcement” before the superior court. The court ruled that Driscoll “has a valid self-incrimination privilege and that this motion to produce cannot be granted if she chooses to exercise her privilege.”

On October 12 the district attorney obtained three search warrants from the El Cajon Municipal Court. The places to be searched were Driscoll's residence, the office of the Public Administrator, and the offices of “Attorney Milton Silverman and associates.” The warrants described the property to be seized as:

“… personal property, to wit: letters, photo albums, books, journals, diaries, and other personal papers … tending to show the mental condition of defendant Susan Marie Driscoll, also known as Susan Walsh, and her intentions and relationships with her now deceased husband John Walsh and now deceased children Slade and Dawn.”

Items were seized from the Public Administrator's office on October 12 and from Driscoll's residence on October 13.

On October 12 the warrant for Silverman's offices was executed by two detectives, a deputy district attorney and a district attorney investigator, who recorded the events on a tape recorder. Silverman was present while the search was conducted. The letter transmitted from Driscoll's father was found and seized in the office of an attorney associated with Silverman.

On January 21 Driscoll brought a motion in respondent superior court to suppress all items seized from all three locations. The superior court issued a minute order which upheld the validity of the search warrants and denied Driscoll's motion to suppress all evidence based upon Penal Code section 1538.5, but granted Driscoll's motion to suppress the letter on the authority of article I, section 15, of the California Constitution, reasoning the use of a search warrant under the facts of this case amounted to compelled discovery which would lighten the prosecution's burden of proving its case.

The stage was thus set for the petitions before us. In 4 Civil No. 16509 Driscoll seeks a peremptory writ of mandate to compel the superior court to suppress all items seized. In 4 Civil No. 16489 the People seek a peremptory writ of mandate compelling the superior court to admit the letter.

It is argued on behalf of Driscoll the search warrants are invalid because “without an appellate ruling to the contrary, the superior court order denying the prosecutor's ‘motion in lieu of search warrant’ on the grounds of Fifth Amendment privilege was binding on both the People and the magistrate issuing the search warrant.” This is so, it is argued, under the principle of res judicata and Code of Civil Procedure section 1008. We find no merit in this argument.

“The doctrine of res judicata applies only to judgments and orders which are final in the sense that no further judicial act remains to be done to end the litigation. Intermediate determinations, such as rulings on motions and interlocutory orders, are not conclusive.” (4 Witkin, Cal.Proc., 2d ed., Judgement, § 162, p. 3306.)

(See also 1 Witkin, Cal. Crimes, Defenses, § 224, p. 214.)

Code of Civil Procedure section 1008 provides:

“When an application for an order has been made to a judge, or to the court, and refused in whole or in part, or granted conditionally, or on terms, and subsequent application for the same order, upon an alleged different state of facts, shall be made, it shall be shown by affidavit what application was before made, when and to what judge, what order or decision was made thereon and what new facts are claimed to be shown. For a failure to comply with this requirement, any order made on such subsequent application may be revoked or set aside on ex parte motion.

A violation of this section may be punished as a contempt; and an order made contrary thereto may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.” (Emphasis added.)

For reasons we shall later explain the affidavit in support of the search warrants was not an application for the same order sought by the “motion in lieu of search warrant,” since that motion essentially sought to compel discovery. Even if this were not so, section 1008 is discretionary by its terms as to contempt and revocation of the later order, and it does not compel invalidation of the warrants.

Driscoll also contends the warrants are intolerably general.

“Both the Fourth Amendment to the United States Constitution and section 13 of article I of our state Constitution require that a warrant must particularly describe the place to be searched and the things to be seized. The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. [[[[Citation.] The Penal Code demands reasonable particularity (Pen. Code, § 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized. [Citations.]” (Burrows v. Superior Court, 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 173, 529 P.2d 590, 597.)

We agree with the superior court's determination the warrants in this case satisfied constitutional standards of specificity. The premises to be searched were particularly described as:

(1) “4670 Mayapan Drive, La Mesa, California, which is a single family dwelling, including all rooms, attics, storage areas, trash areas, yards, garages and outbuildings assigned to said premises.” (Emphasis added.)

(2) “… a business office located at 8775 Balboa Avenue, San Diego, California, which is the office of the Public Administrator, Mark Hostetter; including all rooms, attics, storage areas, trash areas, yards, garages and outbuildings assigned to said premises.” (Emphasis added.) and

(3) “… business offices located at 2404 Broadway, San Diego, California, which are the offices of Attorney Milton Silverman and associates, including all rooms, attics, storage areas, trash areas, yards, garages and outbuildings assigned to said premises.” (Emphasis added.)

These descriptions were sufficiently definite that the officers conducting the searches could with reasonable effort ascertain and identify the places intended (People v. Dumas, 9 Cal.3d 871, 880, 109 Cal.Rptr. 304, 512 P.2d 1208).

In addition, the description of personal property in the warrants—

“… letters, photo albums, books, journals, diaries, and other personal papers tending to show the mental condition of defendant Susan Marie Driscoll, also known as Susan Walsh, and her intentions and relationships with her now deceased husband John Walsh and now deceased children Slade and Dawn”—

imposed a meaningful restriction upon the objects to be seized (Burrows v. Superior Court, supra, 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 529 P.2d 590).

In Andresen v. State of Maryland, 427 U.S. 463, 96 S.Ct. 2737, 2747-2749, 49 L.Ed.2d 627, a description of property which included the phrase “together with other fruits, instrumentalities and evidence of crime at this [time] unknown” was construed to authorize search for other fruits, instrumentalities and evidence of only the charged crime of false pretenses. As so construed, it was held to be constitutionally tolerable. Here, the property description was far more particular. Only specific types of items tending to show Driscoll's mental condition or intentions and relationships with the victims could be seized.

The People urge the seizure of the letter by warrant was not compelled discovery and was not a violation of Driscoll's constitutional privilege against self-incrimination. We agree.

In suppressing the letter the superior court framed the issue as “the right of the prosecution to compel discovery by substituting a search warrant for a motion to discover.” (Emphasis added.) The court relied upon Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, and Allen v. Superior Court, 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65, in reaching such a conclusion.

Both Prudhomme and Allen involved attempts by the prosecution to compel discovery. The Supreme Court reasoned the prosecution may not compel “defense disclosures which ‘conceivably might lighten the prosecution's burden of proving its case in chief.”’ (Allen v. Superior Court, supra, 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 776, 557 P.2d 65, 67, quoting Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673.) In our view that holding does not apply to the facts of this case. Here, Driscoll was not compelled to disclose anything. The seizure of the letter pursuant to a valid warrant did not require Driscoll to furnish or authenticate the letter (Andresen v. State of Maryland, supra, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627; see also 8 Wigmore, Evid., § 2264 (McNaughton Rev. 1961)). As stated by Mr. Justice Holmes: “A party is privileged from producing the evidence, but not from its production.” (Johnson v. United States, 228 U.S. 457, 459, 33 S.Ct. 572, 57 L.Ed. 919.)

We hold the search and seizure by lawful warrant did not require Driscoll to deliver up or authenticate the letter so as to invoke constitutional protection against self-incrimination. The People, possessing a lawful warrant, discovered and obtained the letter on their own. Driscoll has not been compelled to be a witness against herself, since she has not been compelled to do any testimonial act.

We also conclude the evidentiary use of the letter would not violate Driscoll's privilege against self-incrimination. “The privilege does not prevent the otherwise lawful seizure [and evidentiary use] of a document even when its contents are communicative.” (People v. Miller, 60 Cal.App.3d 849, 855, 131 Cal.Rptr. 863, 866.)

We have considered other arguments made on behalf of Driscoll and find them to be without merit.

Let a peremptory writ of mandate issue in No. 16489 compelling the superior court (1) to strike the portion of its minute order of February 3, 1977, in section 3 beginning with the words “The issue is the right …” through the end of the section, and (2) to deny Driscoll's motion to suppress the letter (People's Exh. 8). Driscoll's petition for writ of mandate (No. 16509) is denied.

FOOTNOTES

FOOTNOTE.  

BY THE COURT* FN* Before GERALD BROWN, P. J., and AULT and COLOGNE, JJ.