PEOPLE v. TURNER

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant, v. Bruce Elliot TURNER, Defendant and Respondent.

Cr. 41215.

Decided: September 21, 1982

John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and George Palmer, Deputy Dist. Attys., Los Angeles, for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, and Herbert M. Barish, Deputy Public Defender, Los Angeles, for defendant and respondent.

The People appeal from an order of dismissal following the granting of defendant's motion to suppress evidence.  (Pen. Code, §§ 1538.5, subd. (l );  1238, subd. (a)(7).)

Defendant Turner was charged with possession for sale of PCP based upon evidence seized pursuant to a warrant issued February 20, 1981, for the search of a house at 1265 West 83d Place in Los Angeles.

The warrant was issued upon probable cause, not contested by defendant, to believe that PCP was being sold at the residence.   However, defendant successfully contended in the trial court that the warrant was invalid in its entirety because it contains a provision which authorizes the seizure of “articles of personal property tending to establish the identity of persons in control of said premises ․ including but not limited to rent receipts, utility bills, letters and other items of personal identification.” 1

This is a companion case to People v. Robertson, 135 Cal.App.3d 1043, 185 Cal.Rptr. 818.   Although the two cases are otherwise separate, they involve almost identical search warrant provisions.   They were argued at the same time in the trial court and in this court, and the appellate briefs in both cases are virtually identical.

For the reasons stated in People v. Robertson, ante, the trial court erred in quashing the warrant.   The only distinction between the two cases is that the Robertson warrant refers to property “including rent receipts, utility receipts, letters and other items of personal identification,” whereas the Turner warrant refers to property including “but not limited to” such items.   Although defendant suggested at oral argument that this renders the Turner provision even more objectionable than the Robertson provision, we find no significant distinction.   A meaningful restriction is still placed upon the police officer, because the named items are illustrative of the type of property which may be seized.   The phrase “including but not limited to” was also involved in People v. Senkir, 26 Cal.App.3d 411, 415, 103 Cal.Rptr. 138 (cited in Robertson, ante ), where the court upheld the warrant, stating that the property was described with sufficient particularity and with a meaningful restriction on the things to be seized because the warrant was limited to articles, “some of which were enumerated, that could aid in identification of the person in possession.”  (People v. Senkir, supra, at p. 421, 103 Cal.Rptr. 138.)   Furthermore, even without “but not limited to,” the Robertson warrant was not exclusively limited to the specific documents itemized.

The order of dismissal is reversed.

FOOTNOTES

1.   The warrant specifies:  “Articles of personal property tending to establish the identity of persons in control of said premises, vehicles, storage areas and containers where phyencyclidine and/or other narcotics and dangerous drugs are found, including but not limited to rent receipts, utility bills, letters and other items of personal identification.”

ASHBY, Associate Justice.

FEINERMAN, P. J., and STEPHENS, J., concur.