PEOPLE v. ROBERTSON

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

The PEOPLE, Plaintiff and Appellant, v. Leo Jack ROBERTSON, Defendant and Respondent.

Cr. 41214.

Decided: September 21, 1982

John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and George M. 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. (1 ), 1238, subd. (a)(7).)

Defendant Robertson was charged with possession for sale of PCP, possession of codeine, possession of a sawed-off shotgun, and possession of a firearm by a convicted felon, based upon evidence seized pursuant to a warrant issued on October 15, 1980, for the search of 4050 West Slauson, apartment No. 6, 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 “[a]rticles of personal property tending to establish the identity of persons in control of said premises ․ including rent receipts, utility bills, letters and other items of personal identification.” 1  Defendant contended that this provision fails to describe with reasonable particularity the property to be seized (Pen. Code, § 1529) and is so broad as to render the entire warrant invalid as a general warrant.   He also contended that the provision is not adequately supported by the affidavit.   The trial court agreed, quashed the warrant, and dismissed the case.

“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.]  [T]his requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized.”  (Burrows v. Superior Court, 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 529 P.2d 590.)

This case is not like those cited by defendant which have struck down warrant provisions authorizing the seizure of all the business records of the accused.2

On the contrary, the instant provision is limited specifically to property tending to establish the identification of persons in control of the premises.   This is a meaningful restriction on the search, which limits the officer's discretion as to the type of property to be seized.   In People v. Senkir, 26 Cal.App.3d 411, 103 Cal.Rptr. 138, the warrant authorized seizure of “papers, documents and effects which show possession, dominion and control of said premises, including but not limited to probation and parole orders, rent receipts, cancelled mail envelopes, monogrammed clothing and keys.”  (Id., at p. 415, 103 Cal.Rptr. 138.)   The court held “the property was described with sufficient particularity and there was a meaningful restriction on the things to be seized:  ․ articles, some of which were enumerated, that could aid in identification of the person in possession.”  (Id., at p. 421, 103 Cal.Rptr. 138.   See also Toubus v. Superior Court, 114 Cal.App.3d 378, 381, 386, 170 Cal.Rptr. 697 [“records that evidence dealings in controlled substances”];  People v. Barnum, 113 Cal.App.3d 340, 347, 169 Cal.Rptr. 840 [correspondence, address books, brochures and other documents “ ‘which are the instrumentalities and evidence of’ ” violation of designated federal statutes involving sending threats and explosives];  People v. Barthel, 231 Cal.App.2d 827, 832, 42 Cal.Rptr. 290 [bookmaking property or paraphernalia “ ‘capable of being used for the purpose of recording or registering bets upon horse races' ”].)

Defendant cites no case holding that the language in question is overly broad or general.   In addition to the specific discussion in People v. Senkir, supra, similarly worded provisions were impliedly upheld in People v. Howard, 55 Cal.App.3d 373, 376–377, 127 Cal.Rptr. 557, and People v. Duncan, 115 Cal.App.3d 418, 425, 171 Cal.Rptr. 406.   Defendant argues that if Howard and Duncan are correct, then the provision in question authorizes the seizure of virtually any property.   There is no merit to this contention.   Duncan involved handwritten poetry and the police were aware the accused had read poetry to the rape victim.  Howard involved currency, the serial numbers of which had been prerecorded by police in an undercover drug transaction.   In both cases, the specific nexus between the property and the crime was such that the property could have been seized even if not described in the warrant.  (See People v. Hill, 12 Cal.3d 731, 761–764, 528 P.2d 1.)   Howard and Duncan do not support defendant's argument that the search warrant language is unlimited in scope.

 Defendant contends also that nothing in the affidavit specifically recites that there is probable cause to believe that personal property tending to identify the persons in control of the premises will be found, nor gives any justification to search for and seize such items.   However, affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.   They are normally drafted by nonlawyers in the haste of a criminal investigation.   Technical requirements of elaborate specificity have no proper place in this area.   The court should not invalidate a warrant by interpreting the affidavit in a hypertechnical rather than a commonsense manner.  (People v. Mesa, 14 Cal.3d 466, 469, 535 P.2d 337;  People v. Superior Court (Johnson), 6 Cal.3d 704, 711–713, 493 P.2d 1183.)

There was concededly probable cause to believe that contraband would be found at the residence and was possessed by a person with intent to use it to commit a public offense.   The warrant could properly issue for evidence showing what person or persons were committing the offense by being in possession of the contraband.  (Pen. Code, § 1524, subd. (a)(4).)   Evidence showing who was in control of the premises would tend to show who was committing the offense.   Even without specific mention of the issue, it is reasonable and in accord with common sense to infer that such items as rent receipts and utility bills tending to show who is in control of the premises will probably be found at a residence.   Such an ordinary commonsense inference should not have to be spelled out in the affidavit.

The order of dismissal is reversed.

FOOTNOTES

1.   The warrant specifies:  “[A]rticles of personal property tending to establish the identification of persons in control of said premises, vehicles storage areas, or containers where narcotics are found, including rent receipts, utility receipts, letters and other items of personal identification.”

2.   Burrows v. Superior Court, supra, 13 Cal.3d at pages 248, 249–250, 118 Cal.Rptr. 166, 529 P.2d 590 (all financial records of the accused, without regard to the persons with whom the transactions occurred or the date thereof);  Griffin v. Superior Court, 26 Cal.App.3d 672, 692–693, 694–696, 103 Cal.Rptr. 379 (evidence of indebtedness to any persons, all telephone calls, names and addresses of all associates);  Aday v. Superior Court, 55 Cal.2d 789, 793–796, 362 P.2d 47 (all business records);  People v. Berger, 44 Cal.2d 459, 461, 282 P.2d 509 (all business records);  Stanford v. Texas, 379 U.S. 476, 477–478, 480–482, 85 S.Ct. 506, 507–08, 509–10, 13 L.Ed.2d 431 (books and papers relating to the Texas communist party).Defendant also cites cases where stolen property was inadequately described.  (Thompson v. Superior Court, 70 Cal.App.3d 101, 105, 108, 138 Cal.Rptr. 603;  People v. Murray, 77 Cal.App.3d 305, 308–309, 143 Cal.Rptr. 502;  People v. Mayen, 188 Cal. 237, 242, 205 P. 435.)

ASHBY, Associate Justice.

FEINERMAN, P.J., and STEPHENS, J., concur. Hearing denied; NEWMAN, J., did not participate.