PEOPLE v. MEYERS (1978)

The People have petitioned for a writ of mandate pursuant to Penal Code section 1538.5, subdivision (o ), following the granting of a motion to suppress evidence.

The question presented is whether in the execution of a valid search warrant the executing police officers can be accompanied by the victim of a burglary to identify stolen household property, and further, whether in the execution of the search warrant the identification of the stolen property by the victim provides the permissible “plain view” discovery of contraband which is not listed in the search warrant. We conclude that the victim of a burglary can accompany an officer executing a search warrant in order to make precise identification of the items listed in the search warrant, and that if during the execution of such search warrant the victim sees other items which have been stolen, such identification provides the executing officer with knowledge that the items are contraband and therefore may be seized.

On May 21, 1977, Mr. and Mrs. Richard Lane returned to their home after a vacation to discover they had been victims of a burglary. The home had been vandalized and approximately $15,000 worth of personal effects had been stolen. Mrs. Lane questioned several neighbors, who said they suspected the occupants of a home located across the street from the Lane home. Mrs. Lane questioned Glenn Meyers, one of the occupants of the suspect residence, who, when confronted by Mrs. Lane with the accusation that the burglars could be identified, turned “beet red” and stated he had a good idea who burglarized the home. This information was communicated to the police, who indicated that it was insufficient to obtain a search warrant of the residence.

The Lanes, without the knowledge of the police, then returned to the suspect residence, opened a garage door, searched through a garbage bag and discovered several items of personal property which they identified as their own. Armed with this additional information, they returned to the police, who then prepared an affidavit signed by Mrs. Lane in support of a search warrant. The affidavit set forth several categories of personal property, including silver dollars, silver certificates, a silver service, pictures, guns, a television set, various items of jewelry, camera equipment and clothing.

Mrs. Lane accompanied the police to the residence at the time the search warrant was executed. The entire house was searched, during which time the victim identified over 75 items as her property stolen in the burglary. None of the items listed in the search warrant were found. The items found were generally miscellaneous items of personal property of nominal value, such as playing cards, linen, liquor, personal papers, clothing, food and kitchen utensils.

Generally, items seized pursuant to a search warrant must be specified in the warrant. (Marron v. United States (1927) 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231; Burrows v. Superior Court (1974) 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 529 P.2d 590.) Exploratory searches based upon warrants which do not describe the items to be seized with sufficient particularity are prohibited. (See Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 138 Cal.Rptr. 603.) In the instant case, however, the warrant did describe the stolen items with as much specificity as possible.¹

We conclude that the search warrant was valid in that it described with particularity the place to be searched and the things to be seized, as required by the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution.

We turn now to the question of whether the court erred in suppressing items of evidence seized which were not listed in the search warrant.

An exception has been created for situations in which the officers have entered the premises pursuant to a valid search warrant, and in the course of a reasonable search discover items not in the warrant. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 460 P.2d 485.) The Skelton court states (at p. 157, 81 Cal.Rptr. at p. 622, 460 P.2d at p. 494):

We would formulate what seems to us the rule that has been applied without express articulation, in many similar cases, thus: 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.

In order for this “plain sight” rule to apply, there must be a connection or “nexus” between the item seized and the alleged criminal behavior. In cases where the item is contraband, this nexus is automatically satisfied, since possession of the item itself is evidence of the criminal activity. (People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393, 528 P.2d 1.)

In the case at bench the items of personal property seized were not obviously contraband. The question is whether the identification of those objects as contraband by the victim supplies the “nexus” required by People v. Hill. The mere fact that items are seized that are not in the search warrant does not make the search exploratory. (Skelton v. Superior Court, supra.) It is clear that the police officers searched the house with a specific purpose to determine if any property stolen from Mrs. Lane's home was in the house. They were not looking for evidence of all types of illegal activity, but rather evidence relating to the specific burglary. As we have noted, the affidavit in support of the search warrant set forth the stolen items with adequate specificity. However, most of the 60-odd items listed in the affidavit were typical household items which defy precise description. For this reason the police brought along Mrs. Lane to identify the property.

Real party in interest relies on People v. Murray (1978) 77 Cal.App.3d 305, 143 Cal.Rptr. 502. In Murray, during the execution of a search warrant, police officers seized television sets not listed in the search warrant, because the officers had a general suspicion that they were stolen. The court held that these items should be suppressed because they were not listed in the warrant and there was no indication at the time of their seizure that they were contraband. The holding of Murray, however, is simply that the test of Skelton requiring a “nexus” between the non-listed items and the criminal activity had not been met. The court concluded that a policeman's unsupported suspicion that the property is stolen does not constitute a nexus. The issue here is whether the required nexus was provided by the victim's identification of the property taken from her home.

Another recent case, and one more supportive of real party in interest's contention is People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69, 143 Cal.Rptr. 382. In Williams, the informant accompanied police officers in the execution of a search warrant and pointed out items of stolen property not listed in the search warrant. The court there stated (at p. 78, 143 Cal.Rptr. p. 387): “We reject the contention of petitioner that the informant can legitimately be used at the scene to point out what items should be seized.” In discussing whether the informant's identification of the contraband could provide the nexus as required in People v. Hill, the Williams court stated (at pp. 79-80, 143 Cal.Rptr. p. 388):

“We decline to expand the plain view doctrine (which is designed to place a reasonable limit on the police discretion without unreasonable interference with police activity (see Skelton v. Superior Court, supra, 1 Cal.3d 144, 158, 81 Cal.Rptr. 613, 460 P.2d 485) to permit seizure of items pointed out at the scene by informants. Such a doctrine would unduly encroach upon the Fourth Amendment right to be free from unreasonable searches and seizures.

As discussed above, the police officer is the only party authorized to execute a warrant, not a third party. Therefore, only the police officer may lawfully be on the premises to view evidence possibly seizable as contraband. Since the officer is lawfully present, he may use his personal knowledge as long as he can articulate a sufficient nexus between the evidence and criminal behavior (People v. Hill, supra ).

We are disinclined to follow Williams to the extent that it would not permit the providing of the “nexus” by a victim's identification of the contraband during the execution of a valid search warrant. Such identification provides the executing officer with information that the property is in fact contraband, and its seizure is valid as being in “plain view” in accordance with Skelton.

Penal Code section 1530 provides that

A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

The language of this section permits a police officer to obtain the assistance of another person in aid of the execution of a search warrant so long as the officer himself is present during its execution. The Williams court stated (77 Cal.App.3d at p. 79, 143 Cal.Rptr. at p. 387):

The aid contemplated by Penal Code section 1530 is aid in executing the warrant, not in making the warrant sufficient. Specificity must be shown in the warrant itself and cannot be supplied at the scene by the informant.

This is clearly a correct statement of the law. In the present case there is no question as to the sufficiency of the warrant itself. It itemized with great specificity some 60-odd items of personal property in 9 categories. It just happens that under the circumstances of the case at bench all of those items were no longer in the home of the burglars. All that remained were generally items of minimal value. Here the victim accompanied the officers to identify the stolen property, not as a substitute for specificity in the search warrant itself, but solely to provide precise identification as contraband. To this end the police officers are specifically authorized by Penal Code section 1530 to have the victim accompany them in the execution of the search warrant. The procedure of having the victim accompany the police officer in the execution of the warrant is particularly desirable in a case such as the one at bar when items to be seized pursuant to a search warrant are of such a nature that, although described with adequate specificity, could be mistaken for other similar kinds of property. Under such circumstances, having the victim available to identify without question the stolen property minimizes the risk of seizing that which is not contraband.

The next contention raised by petitioner is that the trial court erred in suppressing the evidence of items seized in bedrooms other than that of defendant Mark Meyers' bedroom. The residence in question was a single family residence. However, it was occupied by a number of individuals, and from the evidence adduced at the hearing on real party's 1538.5 motion it appeared that the home was a communal residence shared by several individuals, each having a separate bedroom within the house.

Penal Code section 1529, following constitutional requirements, requires that the place to be searched pursuant to a search warrant be described with particularity. (People v. Coulon (1969) 273 Cal.App.2d 148, 152, 78 Cal.Rptr. 95.) Coulon held that a single dwelling unit designated as the “place” to be searched in the warrant is constitutionally adequate, even though the dwelling is shared by a group of adults (at p. 152, 78 Cal.Rptr. 95). The constitution also requires that the scope of a search be reasonable. (Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) A search that is reasonable at its inception may violate the Fourth Amendment by extending its scope beyond permissible limits. (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

Several items were found in the bedroom of one Jamie Gaumer, another occupant of the house. The search warrant specifically stated that each and every room of the residence could be searched.

In People v. Gorg (1958) 157 Cal.App.2d 515, 523, 321 P.2d 143, the court held that in a residence containing several roommates, if the police find contraband in one bedroom, or in common living areas, then they may reasonably search other bedrooms that are unlocked and an integral part of the same living quarters. People v. Garnett (1970) 6 Cal.App.3d 280, 85 Cal.Rptr. 769, involved a factual situation similar to that presented by the petition before this court. In Garnett, the magistrate issued a search warrant for “those certain premises, including all rooms and building used in connection with the premises and adjoining same, and in any receptacle or safe therein, which premises are commonly called and designated as 1470 Washington Street and The Orb Theatre” (p. 284, 85 Cal.Rptr. p. 770). Garnett alleged that the warrant was not issued on probable cause since the premises consisted of several separate living units. The Court of Appeal answered that argument (at p. 286, 85 Cal.Rptr. at p. 772):

The magistrate had before him information that several persons occupying the building in question were possessing and using narcotics on at least three separate floors of the building. Added to this was the information recently given by Robert Sweazy, when, without stating any apartment or room number or floor, he gave his address simply as 1470 Washington Street. The magistrate could reasonably conclude, as he did, that narcotics were probably to be found throughout the building. Any attempt to direct a restricted search of a floor, room or other segment of the building would not square with the “commonsense” requirement . . .

Similarly, in the case before this court, a single family residence was warranted to be searched. The premises consist of a single address. Defendant's attorney himself characterizes the residence as a “community house” and “fraternity house.” Given the type and quantity of items stolen from the victim, and given the fact that the premises consist of a single family residence, the scope of the search did not become unreasonable in searching the entire house. The problem of connecting the stolen property in Jamie Gaumer's room with the defendant is an evidentiary problem and not a constitutional problem. Therefore, the items found in Jamie's bedroom, or any other bedroom, were improperly suppressed by the trial court.

Let a writ of mandate issue directing respondent superior court to vacate its order granting the motion to suppress the evidence and to enter its order denying such motion.

I respectfully dissent.

That the procedure approved by the majority, of having victims enter a suspect's home to identify property, would make police searches easier is undoubtedly true. That it is “particularly desirable,” or in fact constitutionally supportable is, I suggest, a much more dubious proposal. For it flies not only in the face of People v. Williams (1978) 77 Cal.App.3d 69, 143 Cal.Rptr. 382, which the majority is “disinclined to follow,” but of the basic proscription of the Fourth Amendment that people be secure in their houses against unreasonable searches and seizures.

There is little controversy about the facts. A warrant, properly issued, listed 61 items claimed to be stolen. The police, asking no consent by the householder or magistrate, invited the victim in. As the warrant remained in an officer's pocket, a search was conducted. Not one of the 61 items was found. But 75 others were seized solely as a result of identification, in a room by room, closet by closet, dresser by dresser, drawer by drawer search by the victim, looking at “thousands” of items. Thus here, as in People v. Murray (1978) 77 Cal.3d 305, 310, 143 Cal.Rptr. 502, the seizure was not pursuant to listing in a warrant but by virtue of the plain view doctrine of Skelton v. Superior Court (1969) 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485, and the burden is on the prosecutor to show its applicability. That burden is not met.

The constitutional rationale for those requirements are explained by Chief Justice Wright in People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393, 416, 528 P.2d 1, 24:

“On the other hand, neither should we be unmindful that in Warden the United States Supreme Court expressly rejected the proposition that in the course of a lawful search police officers are authorized to indiscriminately seize any items whatsoever. Rather, the court fashioned a rule which accommodates the Fourth Amendment's requirement of specificity and the government's legitimate interest in solving crime: ”There must . . . be a nexus automatically provided in the case of fruits, instrumentalities or contraband between the item to be seized and criminal behavior. Thus, in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.“ (Warden v. Hayden, supra, 387 U.S. 294, 307 (87 S.Ct. 1642) (18 L.Ed.2d 782, 792).)

The “nexus rule” of Warden, which involved a lawful warrantless search, applies with equal force and effect in the context of a search conducted pursuant to a warrant. In both situations the same fundamental proposition controls the scope of a search must be circumscribed by the reasons which justified its inception. It is by this rational limitation that the Fourth Amendment protects the individual against unfettered discretion. (Terry v. Ohio, supra, 392 U.S. 1, 29, 88 S.Ct. 1868 (20 L.Ed.2d 889, 910-911); Marron v. United States (1927) 275 U.S. 192, 196 (48 S.Ct. 74, 72 L.Ed. 231, 237).) In short, the “nexus rule” is necessary to achieve what we intended in Skelton a “realistic balancing of the requirements of effective law enforcement and the necessity to protect the privacy of the citizen from unwarranted governmental intrusion.” (People v. Skelton, supra, 1 Cal.3d 144, 158 (81 Cal.Rptr. 613, 460 P.2d 485)).“

The majority makes two quantum constitutional leaps in finding that identification by the victim serves as that necessary “nexus.” The Constitution requires a warrant to describe with particularity the property to be seized, i. e., to place a meaningful restriction on those objects. (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 107, 138 Cal.Rptr. 603.) Numerous cases discuss that requirement, and the need for the appellate court to exercise its independent judgment to ensure that specificity. And as pointed out in Williams, supra, 77 Cal.App.3d, pages 78-79, 143 Cal.Rptr. 383, 387, there is neither constitutional nor statutory authority permitting a third party to substitute initially for the magistrate and now for the appellate court, in making that independent determination:

“We reject the contention of petitioner that the informant can legitimately be used at the scene to point out what items should be seized. Such a concept violates the rule of leaving no matters to the discretion of the officer. Penal Code section 1523, describing a search warrant, does not authorize a third party to be on the premises. The aid contemplated by Penal Code section 1530 is aid in executing the warrant, not in making the warrant sufficient. Specificity must be shown in the warrant itself and cannot be supplied at the scene by the informant. To allow otherwise would be to thwart the main purpose of a warrant, which is to interpose a cool, detached judicial mind between the officers and the search to eliminate discretion in the officers (People v. Hill (1969) 12 Cal.3d 731, 762 (117 Cal.Rptr. 393, 528 P.2d 1), overruled on different grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 896 (135 Cal.Rptr. 786, 558 P. 872)).”

The court then concludes, at pages 79-80, 143 Cal.Rptr. at page 388, as noted in the majority opinion:

“We decline to expand the plain view doctrine (which is designed to place a reasonable limit on the police discretion without unreasonable interference with police activity (see Skelton v. Superior Court, supra, 1 Cal.3d 144, 158, 81 Cal.Rptr. 613, 460 P.2d 485) to permit seizure of items pointed out at the scene by informants. Such a doctrine would unduly encroach upon the Fourth Amendment right to be free from unreasonable searches and seizures.”

The majority is “disinclined” to follow, and does not seek to distinguish Williams, a demonstrably difficult duty indeed. The Williams holding and concept is particularly apt and controlling in this case. There is no difference, constitutionally, between informants and victims in this context. The balance required between the Fourth Amendment guarantees and the requirement of effective law enforcement (People v. Hill, supra ) is simply not met by a search warrant, no matter how specific it may be, if it is used only to enter a private residence, and thereafter ignored. Such a search, conducted essentially by the victim, is clearly “exploratory,” does not provide the needed “nexus,” and does not fall within any of the exceptions set up by Shelton. Thus the items seized, not listed on the affidavit for the search warrant, were properly suppressed by the court below.

Nor should that affirmance be upset by the other major extension of the majority, with its direct holding that: “To this end the police officers are specifically authorized by Penal Code Section 1530 to have the victim accompany them in the execution of the search warrant.”

Only three cases construing that section have been found. People v. Scott (1968) 259 Cal.App.2d 268, 66 Cal.Rptr. 257, permits service by officers within Los Angeles city limits; People v. Daily (1958) 157 Cal.App.2d 649, 321 P.2d 469, approves other officers aiding the listed officers in a search, and Atlas v. Kenny (1945) 68 Cal.App.2d 504, 157 P.2d 401, disapproved the Attorney General's service when the warrant was directed to the Long Beach Chief of Police.

Since its adoption in 1872, no case before this has suggested that private individuals, without court or homeowner permission, could invade the privacy of a home contra to the Fourth Amendment, and contra to the mandate of warrant service “by no other person” (Pen.Code, s 1530), simply on the strength of the phrase “except in aid of the officer on his requiring it.” For the action of the victim here is directly for the purpose of “serving” the warrant. The only action contemplated by the officers, in their service, is not to pick up the defendants, but to seize the items specifically listed and known to the magistrate at time of issuance of the warrant. To say that the victim's act is not used as a substitute for specificity in the warrant but solely as identification of property as contraband is a distinction without a difference. That is, in fact, recognized in the majority statement that the victim may accompany the officer in the execution of the search warrant. Use of such procedure, as was done here where not one of the 61 warrant items was found, not only is a serious abridgment of the specificity requirement, but a major diminution of an officer or prosecutor impetus for particularity in warrant issuance, or care in its service. I would respectfully decline to so extend the section.

I am in agreement with the majority on the matter of seizure in other parts of the house but, for the reasons stated, would affirm the determination of Mr. Justice Burke, Retired, sitting pro tem in the superior court below.

FOOTNOTES

1.  The articles were described as follows:

SCOTT, Acting Presiding Justice.

FEINBERG, J., concurs.