People v. Superior Court (Meyers) , 25 Cal. 3d 67 ( 1979 )

Opinion

TOBRINER, J.

In this case we uphold against constitutional attack an efficient and unintrusive procedure of law enforcement: the police, in execution of a valid warrant to search defendant’s premises for stolen goods, may properly seize items which defendant’s victims identify as their property. In the instant case, victims of a burglary accompanied a police officer in the execution of a warrant to search defendant’s house for more than 60 specified items of valuable personal property. In the course of the intensive search which ensued, the victims identified several dozen other articles of nominal value that had also been stolen in the burglary. On the basis of the victims’ identification, the police seized a quantity of these items.

On defendant’s motion, the trial court suppressed evidence of all items seized which were not enumerated in the warrant. The People now seek review of that ruling, contending that the victims’ on-the-scene identification of property as contraband cloaked the police with constitutional authority to seize evidence in plain sight.

As we shall explain, the highly effective procedure which the police employed in the present case to identify and seize stolen property did not violate defendant’s constitutional guarantees against unreasonable searches and seizures (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13). Thus we hold that the victims of a burglary may accompany police in the execution of a valid search warrant in order to identify stolen property of theirs which they have reason to believe will be found on the suspect’s premises. Accordingly, because the police uncovered contraband in the instant case in such fashion, we direct the trial court to vacate its order of suppression.

The undisputed facts disclose that on May 21, 1977, Juanita Lane returned from vacation with her husband ito their suburban home at 257 Emerystone Terrace, Marinwood. On entering, the Lanes discovered that the house had been burglarized: it was in a “shamble like a hurricane had gone through every room .... Every closet had items removed from them.”

An immediate inquiry of her neighbors led Mrs. Lane to suspect the tenants of the house at 268 Emerystone, including defendant Mark Meyers. When Mrs. Lane asked the police for an “immediate search warrant on this house,” however, the police refused “without evidence.” Mrs. Lane explained that “because of the amount of liquor that had been stolen from my home, I was entertaining the thought at that point there might be empty liquor bottles belonging to us that I could positively identify in [the suspects’] garbage can,” but the police were not persuaded, and cautioned Mrs. Lane not to undertake a search without the tenants’ permission.

Notwithstanding the police warning, the Lanes entered defendant’s garage that evening. Their search revealed a liquor bottle, a plastic orchid, a distinctively decorated iced tea glass, and “one card from a deck of playing cards that had been taken out of my tea cart drawer.” The Lanes notified the police of their discovery, and delivered to the police a partial report of items which they knew were missing from their house: “at the time we were told that this was sufficient—sufficient inventory to warrant the search warrant, that we needn’t give all the items. [U] We didn’t even know everything at that point that was taken.”

Based upon Mrs. Lane’s affidavit attesting that a detailed list of more than 60 items of valuable personal property, including a coin collection, silver, guns, jewelry, camera equipment, and furs, were concealed at 268 Emerystone, the Municipal Court of Marin County issued a warrant commanding “any sheriff, constable, marshal, policeman or police officer in the County of Marin” to make immediate search of the premises. Instructing the Lanes to return home until further notice, Sergeant Riddell of the Marin County Sheriff’s Department served the search warrant on the occupans of 268 Emerystone, secured the house with a “cursory check” to make sure no one else was inside, and then summoned Mr. and Mrs. Lane to the premises.

Sergeant Riddell later described the procedure he followed during the ensuing search. Using the Lanes as “the source of identifying the property,” Riddell “[w]ent from room to room looking for stolen property that might belong to [Mrs. Lane]. ... As I went through the room looking through drawers and closet space, [Mrs. Lane] inquired or made statements to the effect that property was or was not hers. . . . Each and eveiy item in the room was looked at. . . . By myself and the Lanes.” The victims scrutinized “thousands” of items in a search of the entire house, and, while none of the items listed in the search warrant was found, the Lanes were able to identify over 80 miscellaneous other items of nominal value as property stolen in the burglary.¹

Defendant was charged with receiving stolen property (Pen. Code, § 496). On October 7, 1977, defendant filed a pretrial motion to suppress evidence acquired as a result of the search of 268 Emerystone, alleging that “the officer did not in good faith execute the warrant but instead engaged in a general exploratory search (Penal Code Section 1538.5(2) (iv).”² On November 9, 1977, the trial court granted defendant’s motion to suppress.³

The Fourth Amendment of the federal Constitution, article I, section 13 of the California Constitution, and section 1525 of the Penal Code articulate the general rule that the terms of a search warrant limit any search or seizure undertaken pursuant to the warrant.⁴ Thus the police may search only the premises prescribed in the warrant, and may seize only the property described in the warrant. The United States Supreme Court expressed the rationale for this rule in these words: “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. . . . [N]othing is left to the discretion of the officer executing the warrant.” (Marron v. United States (1927) 275 U.S. 192, 196 [72 L.Ed.231, 237, 48 S.Ct. 74].)

The rule that the police may seize only those articles enumerated in the warrant is not, however, without limitation. Skelton v. Superior Court (1969) 1 Cal.3d 144 [81 Cal.Rptr. 613, 460 P.2d 485] formulates the “plain sight” exception as follows: “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.” (Id., at p. 157.)⁵

Skelton reflects our earlier, pragmatic recognition in People v. Roberts (1956) 47 Cal.2d 374, 379 [303 P.2d 721], that “. . . in the course of conducting a reasonable search [police officers] d[o] not have to blind themselves to what [i]s in plain sight simply because it [i]s disconnected with the purpose for which they entered.” (See Skelton v. Superior Court, supra, 1 Cal.3d at pp. 157-158.) Thus in Skelton we upheld the right of officers legally on the premises to seize articles which were “reasonably identifiable as contraband” on the rationale that it represented “a realistic balancing of the requirements of effective law enforcement and the necessity to protect the privacy of the citizen from unwarranted governmental intrusion.” (Id., at p. 158.)

In recognizing a “plain sight” exception to the general warrant requirement we did not, however, intend to violate the fundamental proposition that the scope of a search must be circumscribed by the reasons which justified its inception. (Terry v. Ohio (1968) 392 U.S. 1, 18 [20 L.Ed.2d 889, 903-904, 88 S.Ct. 1868].) Thus in People v. Hill (1974) 12 Cal.3d 731 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872], we fashioned a “nexus rule” to prohibit police officers, in the course of a lawful search, from indiscriminately seizing any items whatsoever. “The police officers who seize an article must be presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred. . . . [P]ure speculation . . . will not suffice to establish the requisite nexus.” (Id., at p. 763.)

In the present appeal, the People address themselves to the plain sight rationale discussed above. Defendants do riot contend that the warrant before us, which directed a search for, and seizure of, some 60 specific items of stolen property, was not sufficiently definite or particular. Moreover, the People persuasively urge that Officer Riddell was engaged in a good faith effort to execute the valid warrant to search defendant’s residence and discover the denominated property when he uncovered and confiscated several dozen other miscellaneous items of stolen property. Thus the People argue that the property seized, although not mentioned in the warrant which authorized the search, may be admitted against defendant.

We have concluded that the circumstances of the case indeed justified the officer’s seizures. Based upon a detailed and highly descriptive affidavit supplied to police by the burglary victim immediately after discovery of the crime, the magistrate properly issued a warrant directing a search of the entire premises at 268 Emerystone. The warrant mandated, in very particular terms, that Police Officer Riddell conduct a search for, and seizure of, some five dozen items of personal property. Specifically enumerated in the warrant were the victims’ more valuable possessions; as Mrs. Lane admitted, “We didn’t know everything at that point that was taken. These were obvious things we knew were missing.”

The warrant thus clearly authorized the police officer to whom it was directed to make an extensive search of the entire house, looking into any places where he might reasonably expect that such small and easily secreted items as a “small gold spoon” or a “jade pin” might be hidden. As in Skelton, “[w]ith the issuance of this warrant, the judgment had already been made by a judicial officer to permit a serious invasion of [the defendant’s] privacy.” (1 Cal.3d 144, 158.) Considering the nature and number of the objects named in the warrant, Officer Riddell could undoubtedly have had the assistance of fellow police officers in conducting the search prescribed; the presence of the burglaiy victims, acting essentially in the capacity of police agents instead of other officers, represented no significant additional intrusion upon defendant’s privacy.

Moreover, by pointing out to Officer Riddell items of their stolen property, Mr. and Mrs. Lane provided the requisite “rational link” between the articles confiscated and possible criminal behavior by defendant. Admittedly the items of personal property seized were not obvious objects of contraband: as Officer Riddell testified, “but for Mr. and Mrs. Lane being present” he would not have known which property on defendant’s premises was stolen. Nevertheless, the Lanes articulated specific facts.⁶ from which Officer Riddell reasonably inferred that the articles seized were in fact contraband.⁷ The Lanes accompanied the officer not as a substitute for specificity in the search warrant, but solely to provide precise identification of contraband.

A recent decision by the high court of one of our sister states further supports our conclusion that the present search did not unconstitutionally exceed the scope of the warrant which authorized it. In State v. Scigliano (1978)⁸ 120 Ariz. 6 [583 P.2d 893], the police obtained a warrant to search defendant’s premises on the basis of information supplied by two persons who admitted having stolen furniture and having sold it to defendant. In executing the warrant the police brought one of the informants with them for the search; she pointed out to the officers other items not specified in the warrant, “which she recognized as having been stolen by her or Brian and delivered to the defendant.” (Id., at p. 894.) These additional items were seized and ultimately admitted into evidence at trial.

On appeal, the Supreme Court of Arizona upheld the trial court’s admission of evidence against defendant Scigliano’s constitutional challenge. As the court held, “The record clearly supports the conclusion that the officers were on Scigliano’s premises pursuant to execution of a valid search warrant and that the challenged items (those seized but unnamed in the warrant) of furniture were found during a limited search which was reasonably calculated to locate items actually named in the warrant, as opposed to a general exploratory search of the premises. We also believe that the facts surrounding the search, including information supplied by the informant during that search, provided a sufficient nexus between the disputed items and the crime for which the warrant was issued, so that the officers had probable cause to believe that those items were ‘reasonably related’ to the crime.” (583 P.2d 893, 896.) Seeing “no greater intrusion into personal security and privacy, and hence no constitutional prohibition, in the use of the informant at the scene of the execution of [a valid search] warrant,” the court affirmed the trial court’s denial of defendant’s motion to suppress the undescribed items. (Id.)

We agree that no constitutional prohibition forbids the use of the burglary victims in the present case from assisting the police in the execution of their valid warrant to search. No purpose would be served, “other than that of an exquisite formalism” (Skelton v. Superior Court, supra, 1 Cal.3d 144, 158), by requiring that when Officer Riddell discovered unenumerated contraband or items which he suspected to be contraband he return to the issuing magistrate and obtain a second warrant directing the seizure of the additional contraband. Nothing in the present record indicates that Officer Riddell originally secured a search warrant as a pretext to conduct a general exploratory search of defendant’s residence. Nor is there any evidence of vindictiveness or other improper motivation on the part of the burglary victims. The circumstances of the burglary rendered an exhaustive inventory of stolen property impossible. As Mrs. Lane stated, “Every closet had items removed from them. . . . We didn’t even know everything at that point that was taken.” To require the victims of a massive burglary to recall every missing face-cloth and coffee pot is to require the impossible. The procedure which the police pursued in the present case reasonably accommodated the legitimate interests of effective law enforcement without seriously impinging upon defendant’s right to be secure in his house and effects against indiscriminate governmental intrusion.⁹

We appreciate the concerns voiced by the dissent. Ideally, as the dissent notes, the warrant should describe all the stolen property in such detail and with such distinctive marks that a police officer totally unfamiliar with the property could identify and seize it from the description in the warrant. In the present case, this ideal could not possibly be attained. Well over a hundred items were stolen. The Lanes could not recall everything that was taken, nor could they describe many items with sufficient and distinctive detail to guide the executing officers. Under these circumstances the only practical way the police could either distinguish the items listed in the warrant or identify and recover other stolen property in plain sight during the search was to seek the assistance of persons able to identify the property in question. We do not believe either state or federal Constitutions require the police to forego such assistance.

The dissent also suggests that the failure of the police to consult and refer to the warrant transforms the search into an unlawful exploratory search. The warrant itself authorized a search which would explore into every corner and cranny which might conceal items as small as a jewelry pin. The fact that the officers did not refer to the warrant during the search did not extend the scope or time of the search beyond that authorized by the magistrate; the method of search that was followed— presenting items to the Lanes for identification—was one likely to turn up the property listed in the warrant if such property were present; the stolen property found in plain sight would still have been in plain sight had the police glanced from time to time at the warrant. In short, even though the officers failed to refer to the warrant during the search, the search actually conducted fell within the scope of that authorized by the warrant, and thus was not an illegal general search.

The recent decision of the United States Supreme Court in Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, [60 L.Ed.2d 920, 99 S.Ct. 2319J, does not cast doubt upon the constitutionality of the present search. In Lo-Ji, a magistrate authorized seizure of two copies of obscene films, then accompanied police officers to defendant’s store to determine on the spot what other merchandise was also obscene. The magistrate and officers examined and seized hundreds of items, which they subsequently added to the warrant. The Supreme Court ruled that the search violated the Fourth Amendment.

Unlike the present case, the officers and magistrate in Lo-Ji did not discover additional items subject to seizure in the course of a good faith attempt to locate the property listed in the warrant. To the contrary, although the Lo-Ji warrant actually specified only copies of two films, the officers and magistrate decided before entering the store that they would pursue a search beyond the specified copies of two films and examine virtually every item on the premises. Thus in Lo-Ji the area of the search did not fall within the scope authorized by the specification of the warrant; instead the police and the magistrate intended from the onset to revise the warrant to correspond to the wide breadth and extent of the search.

In short, the magistrate in Lo-Ji issued what purported to be an open-ended warrant, which he filled in and completed only after the search was concluded. Consequently the warrant, instead of restraining the scope of the search, “left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure.” (442 U.S. 319, 325 [60 L.Ed.2d 920, 928, 99 S.Ct. 2319, 2324].) In the present case, by way of contrast, the officers exercised no discretion, but seized only items in plain view identified to them by a reliable witness as stolen property.

Footnote 5 of the Supreme Court opinion suggests another ground which distinguishes the present case from Lo-Ji. As in the case at bar, the state in Lo-Ji defended the seizure on the ground that the items seized were in plain view. The Supreme Court, however, observed that “we have recognized special constraints upon searches and seizures of material arguably protected by the First Amendment [citations]; materials normally may not be seized on the basis of alleged obscenity without a warrant.” (442 U.S. 319, 326 fn. 5 [60 L.Ed.2d 920, 928, 99 S.Ct. 2319, 2324].) Unlike obscene matter, stolen property found in plain view may be seized without a warrant.

We have concluded, therefore, that the police officer in seizing items not denominated in the warrant transgressed no constitutional principle. We recognize that the distinguished trial judge in the instant case may have followed prior decisions, which he may have regarded as controlling, but we believe that the situation here justified a more realistic and less formalistic approach, and that the cases do not foreclose it.

The People also challenge the trial court’s ruling suppressing “all items seized as evidence or stolen property found at the residence described in the search warrant which was located in rooms identified as being the private rooms of individuals other than [defendant].” The People correctly contend that Officer Riddell had authority to enter and search every room of defendant’s residence, including private bedrooms of defendant’s housemates. The warrant mandated a search of “those certain premises, including all rooms and buildings used in connection with the premises and adjoining same, and in any receptacle or safe therein, which premises are commonly called and designated as 268 Emerystone, Marinwood. . . .” The affidavit supporting the search warrant plainly indicated to the issuing magistrate that several individuals shared the house at 268 Emerystone as a communal residence. In light of the type and quantity of items stolen from the victims, the magistrate did not err in authorizing a search of the entire premises, nor did Officer Riddell exceed the limits of a reasonable search in seizing items from all rooms of the house. (See People v. Garnett (1970) 6 Cal.App.3d 280, 286-287 [85 Cal.Rptr. 769].) We therefore conclude that the trial court erred in suppressing evidence seized from rooms identified as being the private rooms of individuals other than defendant Meyers.

Let a writ of mandate issue directing the trial court to vacate its order insofar as it suppresses all items seized as evidence of stolen property not listed in the warrant, other than the automobile tape deck, and insofar as it suppresses all items seized as evidence of stolen property found in rooms identified as being the private rooms of individuals other than defendant.

Clark, J., Richardson, J., and Manuel, J., concurred.

1 On June 2, 1977, Sergeant Riddell filed a return of warrant and an inventory of property seized. Typical of the items seized were a “mattress cover, white in color,” “Chanel #19 Eau de Cologne box with bottle inside,” “black hand towel,” “one box of sparklers containing one sparkler,” and “three frozen cakes wrapped up in aluminum foil, identified by victim as being made by her Grandmother.”

2 Section 1538.5 provides in part:

“(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

“(1) The search or seizure without a warrant was unreasonable.

“(2) The search or seizure with a warrant was unreasonable because (i) the warrant is insufficient on its face: (ii) the property or evidence obtained is not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v) there was any other violation of federal or state constitutional standards.”

3 The trial court’s order provided, inter alia, “All items of evidence or stolen property seized from areas of the house identified as being Mark Meyers’ private room ... are suppressed UNLESS they are specifically described in the Search Warrant itself, and [H] . . . All items of evidence or stolen property seized from common areas of the house are suppressed UNLESS they are specifically described in the Search Warrant itself. . . .”

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

5 The “contraband" at issue in Skelton, as in the present case, consisted of allegedly stolen property, including jewelry. (See 1 Cal.3d at p. 149.)

6 Thus, for example, Mrs. Lane was able to identify a bottle found in defendant’s room “Because of the design on it. Whether this bottle had a pink liquor seal or not, I don’t know. We do buy all our liquor in Nevada. This seal would probably prove it was purchased in Nevada.”

7 A single item seized, however, does not satisfy the nexus test. Officer Riddell seized an automobile tape deck on the ground “Possibly that it might be stolen. ... It was hidden beneath the bed or put underneath the bed.” The Lanes did not claim the tape deck as theirs. Officer Riddell therefore improperly seized the tape deck on the basis of mere speculation.

8 The Arizona high court decided Scigliano on July 25, 1978, more than eight months after the trial court’s ruling in the case before us.

9 Defendant relies on People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69 [143 Cal.Rptr. 382] for the conclusion that the police procedure in the instant case violated his constitutional right against unreasonable searches and seizures.

In Williams an informant who had been involved in the crimes with which defendant Williams was charged supplied the basis for the issuance of a warrant to search Williams’ residence for stolen oil well drilling equipment. Several police officers executed the warrant at the residence. As a result of the search the officers seized a large number of items which the informant claimed were stolen, although only a few were described in the warrant.

To assist the officers in the search, the informant accompanied them to Williams’ residence and pointed out not only where they might find incriminating evidence, but also what items had been stolen. One detective testified that without the informant’s assistance he would have had no idea what items to seize. Based on the ground that the warrant was too general, the trial court suppressed all but 11 items.

The appellate court rejected the People’s assertion that even if the warrant were too general with respect to the items seized, the police officers still had authority to seize under the plain view doctrine. As the court held, “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) to permit seizure of items pointed out at the scene by informants. Such a doctrine would unduly encroach upon the . . . right to be free from unreasonable searches and seizures.” (Original italics.) (77 Cal.App.3d 69, 79-80.)

While the court in Williams invalidated the search at issue in part because it was based upon a warrant of insufficient particularity, we disapprove Williams to the extent that it would prohibit a third party’s on-the-scene identification of contraband during the execution of a valid search warrant. (77 Cal.App.3d 69, 78-80.)