THE PEOPLE v. JEFFREY MICHAEL HACKLEMAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

Appellant, Jeffrey Michael Hackleman, was charged in an information filed on December 30, 2009, with first degree burglary (Pen.Code, § 460, subd. (a), count one) ¹ and felony receipt of stolen property (§ 496, subd. (a), count two).   On February 10, 2010, the trial court denied Hackleman's motions to set aside the information pursuant to section 995 and to quash the search warrant.   On February 19, 2010, the information was amended to include a count of second degree burglary. (§ 460, subd. (b), count three.)

Hackleman entered into a plea agreement in which he would admit count three and receive a stipulated prison term of 16 months.   Hackleman executed an advisement of rights and plea waiver form acknowledging the terms of the agreement and the consequences of his change of plea.   Hackleman also waived his constitutional rights pursuant to Boykin /Tahl.²  The parties stipulated to a factual basis for the plea and Hackleman pled no contest to second degree burglary.

On March 3, 2010, Hackleman was sentenced to prison for 16 months.³  Hackleman contends on appeal that the trial court erred in denying his motion to quash the search warrant asserting that the investigator's affidavit was legally insufficient.   We do not agree and will affirm the judgment.

On November 11, 2009, Rita Mogelberg entered her mother's home and found it had been burglarized.   There was a brick from the backyard that had been thrown through a window and everything in the house was in disarray.   A formal dining room set and ladder were missing.   Detective Donald Cegielski of the Bakersfield Police Department was assigned to investigate.

In his police report, Cegielski stated a latent fingerprint had been obtained from the home.   On December 7, 2009, a crime laboratory technician identified the latent fingerprint as belonging to Hackleman.   Cegielski went to Hackleman's place of employment and read Hackleman his Miranda rights.⁴  Cegielski told Hackleman he was investigating a burglary.   When asked if Hackleman would let Cegielski go to his home to look for the stolen items, Hackleman replied, “no.”   Cegielski prepared an affidavit and obtained a search warrant for Hackleman's home.

The scope of the warrant was limited to Hackleman's residence at Libby Court and was to include all rooms, attics, basements, garages, storage rooms, trash containers, vehicles, and outbuildings.   The warrant stated Cegielski was looking for an Ashley brand antique rose marble topped dining table with six dark brown chairs that had rose carving.   Cegielski did not include the ladder as an item for which he was searching.   Cegielski stated he was a detective with the Bakersfield Police Department with 18 years of experience in law enforcement.

Cegielski stated in his affidavit, captioned “STATEMENT OF PROBABLE CAUSE,” that he went to the victim's residence in Bakersfield after receiving a call of a residential burglary.   Officers determined the point of entry for the burglary to be a window.   Latent fingerprints were found outside the exterior of the window and after being processed by the crime laboratory, were determined to belong to Jeffrey Hackleman.   The affidavit set forth Hackleman's place of employment.

Cegielski stated that he went to Hackleman's place of employment and advised him of his Miranda rights.   Hackleman agreed to talk to Cegielski.   Cegielski explained he was investigating a burglary at the victim's residence on Esperanza Drive in Bakersfield.   When asked if he knew anyone at that residence, Hackleman replied, “no.”   Hackleman asked Cegielski if Esperanza was near his residence on Libby Court.

When Cegielski asked Hackleman if he would let Cegielski go to his home to look for the missing table, Hackleman replied that he would not allow Cegielski to search his home.   When Cegielski said he would try to obtain a search warrant, Hackleman replied, “go ahead.”   Cegielski asked Hackleman his address.   Hackleman replied that he wanted to speak to an attorney.   Cegielski obtained Hackleman's address from the manager of Hackleman's place of employment.

Cegielski spoke to Hackleman's mother, Sue Valadez.   Valadez did not know her son's current address, but said he had moved in with someone Valadez did not know.   Cegielski stated in the affidavit that he went to Hackleman's address on Libby Court and could see the victim's residence on Esperanza Drive from Hackleman's residence.   Cegielski knocked on the door of Hackleman's residence, but no one answered.   Based on his training and experience, Cegielski stated he believed that a search of Hackleman's residence would produce the victim's stolen property.

After obtaining a search warrant from the magistrate, Cegielski went with other officers several times to execute the warrant.   After receiving no answer, Cegielski made entry into Hackleman's residence through an unlocked sliding door.   The victim's table was located in the front room of the home along with four of the missing chairs.   The table was an Ashley brand table with flower carving.   Mogelberg identified the furniture as her mother's from photographs.   A fiberglass ladder was found in the garage.   A letter addressed to Hackleman at Hackleman's address was also found.

The return to the search warrant included the following seized items:  (1) Ashley brand table;  (2) four Ashley brand chairs;  (3) letter to Jeffrey Hackleman;  and (4) Husky brand ladder.

DISCUSSION

Hackleman contends the search warrant affidavit failed to specifically describe the property to be seized as required by section 1525,⁵ and, although the warrant mentions the dining room set, it fails to describe the ladder.   Hackleman also argues the warrant fails to link the property to be seized with a particular offense.

In reviewing the validity of a search warrant and the search conducted pursuant to it, the question facing us is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.  (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft ).)   The issuing magistrate must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found.   (Id. at pp. 1040–1041.)   The magistrate's determination of probable cause is entitled to deferential review.  (Id. at p. 1041.)

The Fourth Amendment requires particularity of the place to be searched and the items to be seized.   The requirement of particularity ensures that law enforcement officers do not use a warrant to generally rummage through one's property.   Whether the description in a warrant of the property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court.   Searching officers may seize items specifically named in a valid warrant, as well as other items in plain view, provided the officers are lawfully located in the place from which they view the items in question.   (Kraft, supra, 23 Cal.4th at p. 1041.)

In United States v. Ventresca (1965) 380 U.S. 102 (Ventresca ), the Supreme Court noted that affidavits for search warrants must be tested and interpreted by magistrates and courts realistically and in a commonsense fashion.   They are usually drafted by nonlawyers in the midst and haste of a criminal investigation.   Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.  (Id. at p. 108;  also see People v. Superior Court (1972) 6 Cal.3d 704, 710–711;  People v. Miller (1978) 85 Cal.App.3d 194, 200.)   Thus, “․ in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.”  (Ventresca, at p. 106.)

In People v. Smith (1994) 21 Cal.App.4th 942, 949, the court found that although the analysis in Ventresca related to the issue of probable cause, there was no logical reason why it could not be applied to the particularity clauses of the Fourth Amendment.   There, the issue was the particularity of the location to be searched.   Here, we analyze the particularity of the items to be seized.

Although Cegielski's statement of probable cause did not mention the dining room set or the ladder, his warrant application specifically described the Ashley dining room set and six chairs Cegielski believed Hackleman took from the victim's residence.   The document presented to the magistrate was entitled, “SEARCH WARRANT AND AFFIDAVIT” with the subtitle, “AFFIDAVIT.”

Under the caption “SEARCH WARRANT,” a box is checked indicating that property “was stolen or embezzled.”   Hackleman's specific address on Libby Court is described, as is Hackleman himself.   Cegielski sought a warrant to search Hackleman's home “For the FOLLOWING PROPERTY:  [¶] Ashley brand antique rose marble top dining table with six chairs dark brown in color with a rose carving.”   This document was a single document composed of separate headings and subheadings.

Reading the search warrant application as a whole and in a realistic, commonsense fashion, it is clear that Cegielski has particularly described the dining table set, including the chairs, and has indicated that the property was stolen during a burglary.   We find the search warrant is particular enough in its description of the property to be seized, with the exception of the ladder, and that the investigation was related to a burglary of the victim's residence.

We find no merit in Hackleman's assertion that Cegielski's affidavit was insufficient because he stated he felt that a search of Hackleman's residence would lead to recovery of the stolen property.   The supporting evidence in Cegielski's affidavit was sufficient for the issuance of the search warrant.   Cegielski's choice of the word “feel” may have been awkward, but again, we must read the affidavit in a realistic, commonsense fashion.

We agree with Hackleman that the missing ladder is not referenced anywhere in the search warrant application.   This omission, however, does not invalidate the search warrant or the officers' search made pursuant to it because the officers had authorization to search for the dining table and six chairs.   They apparently only found four chairs in a front room of Hackleman's residence, entitling them to search the remainder of the residence, including the garage, for the missing two chairs.   In the course of their search, officers also found the victim's missing ladder.⁶  Had the trial court suppressed the ladder as evidence, the dining table and four recovered chairs were still admissible.   Even if we found error in the trial court's failure to suppress the ladder, any error would have been harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise stated, all statutory references are to the Penal Code..  FN1. Unless otherwise stated, all statutory references are to the Penal Code.

FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122..  FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122.

FN3. Up until the day of sentencing, appellant received one-for-one credits, that is, credits for each day in custody and conduct credits for each day in custody except for the day appellant was sentenced to prison.   Appellant received full custody credits pursuant to section 4019 as amended on January 25, 2010..  FN3. Up until the day of sentencing, appellant received one-for-one credits, that is, credits for each day in custody and conduct credits for each day in custody except for the day appellant was sentenced to prison.   Appellant received full custody credits pursuant to section 4019 as amended on January 25, 2010.

FN4. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda )..  FN4. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ).

FN5. Section 1525 provides in relevant part:  “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”.  FN5. Section 1525 provides in relevant part:  “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”

FN6. We note that Cegielski's omission of the ladder from his description of property he was searching for appears to be inadvertent.   Mogelberg had reported the ladder was missing.   Failing to reference the ladder in the search warrant application did not lead to the officers rummaging indiscriminately through Hackleman's property..  FN6. We note that Cegielski's omission of the ladder from his description of property he was searching for appears to be inadvertent.   Mogelberg had reported the ladder was missing.   Failing to reference the ladder in the search warrant application did not lead to the officers rummaging indiscriminately through Hackleman's property.

THE COURT * FN*.  Before Levy, Acting P.J., Cornell, J., and Poochigian, J.