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22001133 EEDDIITTIIOONN
Jackie Lacey District Attorney SEARCH WARRANT MANUAL
2013 EDITION
LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE
JACKIE LACEY DISTRICT ATTORNEY
Authors
ROBERT SCHIRN Head Deputy District Attorney (Retired)
RICHARD J. CHRYSTIE Deputy District Attorney (Retired)
Copyright © 2013 by the County of Los Angeles, Office of the District Attorney -- all rights reserved. Law enforcement agencies are authorized to reproduce this Search Warrant Manual for non-commercial purposes. All other reproduction of this manual without the prior, written consent of the Los Angeles District Attorney is prohibited. AUTHORS’ PREFACE TO 2013 EDITION
The Search Warrant Manual was first published in 1976. It has been revised and rewritten numerous times and now appears over 35 years later in this 2013 edition. Its primary purpose is to serve as a simple and straightforward “how to do it guide” for peace officers and prosecutors writing search warrants. Several sample search warrants are included in the appendix as instructional aids.
Additionally, this manual contains practical information on related topics such as serving a search warrant, nighttime service, knock-and-notice law, court proceedings, informant disclosure motions, and oral and telephonic warrants. This manual also contains numerous case law citations and statutory references that will be helpful both in writing a search warrant and in advocating the legality of a warrant in court.
This manual has been periodically revised to reflect significant changes in the law. It has been our observation, however, that previous editions of this manual are still useful as a guide to writing a warrant.
Although the authors of this manual have retired from the Los Angeles County District Attorney’s Office, they still remain involved in providing legal assistance to the law enforcement community. Richard J. Chrystie is the author and publisher of the Law Enforcement Legal Reporter; and Robert Schirn performs special projects for the Los Angeles County District Attorney’s Office and continues to lecture to law enforcement groups on various topics. They continue to update this manual on a regular basis.
In order for this manual to be of maximum and continuing usefulness, we ask your help. If you have suggestions for revisions, additions, deletions, etc., please contact the Training Division of the Los Angeles County District Attorney’s Office, 320 West Temple Street, Room 1180, Los Angeles, California 90012
ROBERT SCHIRN Head Deputy District Attorney (Retired)
RICHARD J. CHRYSTIE Deputy District Attorney (Retired)
Los Angeles, California January, 2013
TABLE OF CONTENTS
CHAPTER I ...... I-1
SEARCH WARRANT AND AFFIDAVIT -- DEFINITIONS AND COMMENTS...... I-1 A. INTRODUCTION ...... I-1 B. SEARCH WARRANT DEFINED ...... I-1 C. AFFIDAVIT DEFINED...... I-4 D. JURISDICTION -- INCLUDING OUT OF COUNTY SEARCH WARRANTS...... I-6 E. SEARCH WARRANT IN CALIFORNIA FOR CRIMES COMMITTED OUTSIDE THE STATE ...... I-6 F. USE OF A SEARCH WARRANT TO SERVE AN ARREST WARRANT ...... I-6 G. PREFERENCE GIVEN TO SEARCH WARRANTS ...... I-7 H. UNITED STATES SUPREME COURT DECISIONS GOVERNING SEARCH WARRANTS...... I-7 I. OTHER ADVANTAGES OF SEARCH WARRANTS...... I-9 J. ALTERNATIVES TO A SEARCH WARRANT ...... I-10 K. USE OF SEARCH WARRANT FOR AIDS BLOOD TEST ...... I-15 L. FORM -- COMBINED SEARCH WARRANT AND AFFIDAVIT...... I-15 CHAPTER II...... II-1
DESCRIBING THE PLACES, VEHICLES, AND PERSONS TO BE SEARCHED...... II-1 A. INTRODUCTION ...... II-1 B. DESCRIBING PLACES -- ADDRESS KNOWN -- EXAMPLES ...... II-2 C. DESCRIBING PLACES -- ADDRESS UNKNOWN -- EXAMPLES ...... II-4 D. “SPECIAL” HIDING PLACES AT OR WITHIN A LOCATION ...... II-4 E. DESCRIBING VEHICLES ...... II-5 F. DESCRIBING PERSONS -- EXAMPLES...... II-8 G. USE OF PHOTOGRAPHS AND DIAGRAMS ...... II-8 H. INCLUDING UNIQUE FEATURES ...... II-9 I. ACCURACY -- MISTAKES DO NOT NECESSARILY INVALIDATE SEARCH WARRANT...... II-9 J. NUMBER OF PLACES, VEHICLES OR PERSONS PER WARRANT...... II-10 K. SEARCHES OF OTHER THAN PLACES, VEHICLES AND PERSONS...... II-10 L. “NEWSROOM” SEARCHES...... II-10 M. OFFICE OF ATTORNEY-DOCTOR-PSYCHOTHERAPIST-CLERGYMAN...... II-11 N. TELEPHONE RECORDS AND COMPUTER RECORDS IN POSSESSION OF FOREIGN CORPORATIONS...... II-11 O. CRIME SCENE SEARCHES ...... II-12 P. SEVERABILITY...... II-12 Q. “GOOD FAITH” EXCEPTION -- DESCRIPTIONS ...... II-12 CHAPTER III...... III-1
DESCRIBING THE PROPERTY AND PERSON(S) TO BE SEIZED...... III-1 A. INTRODUCTION ...... III-1 B. CONTROLLED SUBSTANCES...... III-3 C. BOOKMAKING ...... III-6 D. TELEPHONE CALLS...... III-7 E. STOLEN PROPERTY...... III-8 F. PROPERTY USED TO COMMIT FELONY; PROPERTY TENDING TO IDENTIFY PERPETRATOR...... III-9 G. BANK RECORDS ...... III-10 H. CREDIT BALANCE IN BANK ACCOUNTS...... III-14 I. PHONE RECORDS...... III-15 J. DOMINION AND CONTROL EVIDENCE...... III-17 K. “PEER REVIEW” MEDICAL RECORDS...... III-18 L. PEN REGISTERS AND TRAP-AND-TRACE DEVICES ...... III-18
i M. CREDIT CARD INFORMATION ...... III-19 N. RECORDS...... III-19 O. COMPUTER SERVICES RECORDS INVOLVING FOREIGN CORPORATION ...... III-19 P. COMPUTER SEARCHES ...... III-20 Q. FRAUD CASES -- BUSINESS “PERMEATED WITH FRAUD”...... III-25 R. EVIDENCE OF SEXUAL EXPLOITATION OF CHILDREN AND/OR MINORS ...... III-26 S. CHILD MOLESTATION CASES ...... III-26 T. SEARCH WARRANT TO SEIZE A PERSON FOR WHOM A WARRANT OF ARREST HAS BEEN ISSUED...... III-27 U. “GOOD FAITH” EXCEPTION -- DESCRIPTIONS ...... III-27 V. CHECKLIST...... III-28 W. FORM -- CONSENT TO RELEASE BANK RECORDS...... III-28 X. FORM -- POLICE LETTER...... III-28 CHAPTER IV ...... IV-1
STATEMENT OF PROBABLE CAUSE ...... IV-1 A. INTRODUCTION ...... IV-1 B. AFFIANT -- ESTABLISHING IDENTITY, TRAINING AND EXPERIENCE...... IV-5 C. ESTABLISHING CREDIBILITY OF INFORMANTS...... IV-8 D. ESTABLISHING FACTUAL BASIS OF INFORMATION -- PERSONAL KNOWLEDGE...... IV-22 E. DOUBLE HEARSAY ...... IV-27 F. CORROBORATION -- DETAILED INFORMATION; INNOCENT BEHAVIOR AS CORROBORATION...... IV-27 G. STALENESS...... IV-29 H. USE OF POLICE REPORTS AS EXHIBITS IN AFFIDAVIT ...... IV-33 I. SUFFICIENCY OF INFORMATION...... IV-34 J. CRIME SCENE SEARCHES ...... IV-45 K. COVERT SEARCHES UNDER WARRANT -- “SNEAK-AND-PEEK” SEARCH WARRANTS...... IV-46 L. JUSTIFICATION FOR ANSWERING THE TELEPHONE...... IV-48 M. FORM -- CRIME SCENE SEARCH WARRANT ...... IV-49 CHAPTER V...... V-1
NIGHTTIME SEARCHES...... V-1 A. INTRODUCTION ...... V-1 B. “GOOD FAITH” EXCEPTION -- EFFECT OF PROPOSITION 8...... V-1 C. REQUIREMENT OF MAGISTRATE’S DIRECTION ON WARRANT ...... V-2 D. REQUIREMENT OF “GOOD CAUSE” IN AFFIDAVIT...... V-2 E. NOTING NIGHTTIME SERVICE REQUEST ON SEARCH WARRANT FORMS...... V-9 F. SERVING A NIGHTTIME WARRANT ...... V-9 G. SEARCH COMMENCES BEFORE 10:00 PM BUT CONTINUES AFTER 10:00 PM ...... V-9 H. EXCEPTIONS...... V-10 CHAPTER VI ...... VI-1
INFORMANTS -- PROTECTING IDENTITY ...... VI-1 A. INTRODUCTION ...... VI-1 B. INFORMANT DISCLOSURE -- GENERAL PRINCIPLES ...... VI-2 C. DEFENDANT IN POSSESSION; OVERWHELMING EVIDENCE OF GUILT -- NO DISCLOSURE...... VI-9 D. LAPSE OF TIME SINCE INFORMANT’S OBSERVATIONS ...... VI-14 E. INFORMANT NOT MATERIAL ON ALL COUNTS; NOT MATERIAL FOR POSSESSION ONLY ...... VI-15 F. COURT PROCEEDINGS -- OPEN COURT HEARING, IN CAMERA HEARING...... VI-16 G. REDUCING LIKELIHOOD OF DISCLOSURE ...... VI-19 H. COMPLIANCE WITH DISCLOSURE...... VI-21 I. SEALING THE AFFIDAVIT TO PROTECT INFORMANT’S IDENTITY -- “HOBBS WARRANTS”...... VI-22 J. “CRIMESTOPPER” INFORMANTS ...... VI-25
ii K. NARCOTICS SURVEILLANCE POINT DISCLOSURE...... VI-25 CHAPTER VII...... VII-1
MECHANICS OF PREPARATION...... VII-1 A. INTRODUCTION ...... VII-1 B. PREPARING THE SEARCH WARRANT AND AFFIDAVIT...... VII-1 C. PRESENTING THE SEARCH WARRANT AND AFFIDAVIT TO MAGISTRATE ...... VII-2 D. LEGAL STANDARD FOR ISSUANCE OF THE SEARCH WARRANT...... VII-2 E. MAKING COPIES OF THE SEARCH WARRANT AND AFFIDAVIT ...... VII-2 F. SEALING THE AFFIDAVIT...... VII-4 G. RETURN OF THE WARRANT ...... VII-5 H. FORM -- AFFIDAVIT AND REQUEST FOR SEALING ORDER...... VII-5 I. FORM -- SEALING ORDER ...... VII-5 CHAPTER VIII ...... VIII-1
SEARCH WARRANT CHECKLIST -- SEARCH WARRANT FORMAT...... VIII-1 A. INTRODUCTION ...... VIII-1 B. CHECKLIST...... VIII-1 C. SEARCH WARRANT FORMAT...... VIII-3 CHAPTER IX ...... IX-1
ORAL AFFIDAVITS ...... IX-1
TELEPHONICALLY AUTHORIZED SEARCH WARRANTS...... IX-1
FACSIMILE & E-MAIL SEARCH WARRANTS...... IX-1 A. INTRODUCTION ...... IX-1 B. ORAL AFFIDAVITS...... IX-2 C. TELEPHONICALLY AUTHORIZED SEARCH WARRANTS ...... IX-4 D. FACSIMILE SEARCH WARRANTS -- PENAL CODE SECTION 1526(B) (2) ...... IX-7 E. ELECTRONIC MAIL SEARCH WARRANTS -- PENAL CODE SECTION 1526(B)(2)...... IX-8 F. FORM -- ORAL AFFIDAVIT SEARCH WARRANT...... IX-8 G. FORM -- TELEPHONIC SEARCH WARRANR...... IX-8 H. FORM -- CERTIFICATION OF TAPE RECORDING...... IX-8 I. FORM -- CERTIFICATION OF TRANSCRIPT ...... IX-8 J. FORM -- FACSIMILE SEARCH WARRANT...... IX-8 CHAPTER X...... X-1
SERVICE OF THE SEARCH WARRANT ...... X-1 A. TIME LIMIT FOR EXECUTION OF SEARCH WARRANT ...... X-1 B. OCCUPYING PREMISES BEFORE SEARCH...... X-2 C. APPROACHING THE PREMISES; NO NEWS MEDIA ENTRY ...... X-3 D. KNOCK AND NOTICE REQUIREMENTS -- PENAL CODE SECTION 1531 ...... X-4 E. USE OF MOTORIZED BATTERING RAM -- “THE TANK” ...... X-10 F. CONDUCTING THE SEARCH...... X-11 G. SEARCH OF A PERSON ...... X-15 H. READING/SEIZING DOCUMENTS ...... X-18 I. SEIZURE OF ITEMS NOT DESCRIBED IN THE WARRANT ...... X-18 J. “FLAGRANT DISREGARD” OF AUTHORIZED SCOPE OF SEARCH ...... X-22 K. SAFES AND LOCKED CONTAINERS...... X-23 L. ANSWERING PHONE ...... X-23
iii M. SPECIAL MASTER ...... X-24 N. RETURN TO THE SEARCH WARRANT ...... X-24 O. EFFECT OF LATE AND DEFICIENT RETURNS...... X-25 P. RELEASING PROPERTY SEIZED PURSUANT TO A SEARCH WARRANT...... X-25 Q. WARRANTLESS ARRESTS WHILE SERVING SEARCH WARRANT ...... X-27 R. FORM -- NOTICE OF SEARCH WARRANT SERVICE ...... X-27 S. FORM -- REQUEST AND ORDER FOR RELEASE OF PROPERTY ...... X-27 CHAPTER XI ...... XI-1
COURT PROCEEDINGS IN SEARCH WARRANT CASES ...... XI-1 A. PROPOSITION 8 -- “TRUTH-IN-EVIDENCE”...... XI-1 B. STANDARD OF REVIEW -- “TOTALITY OF THE CIRCUMSTANCES TEST” ...... XI-1 C. PENAL CODE SECTION 1538.5 MOTIONS ...... XI-2 D. STANDING TO CHALLENGE SEARCH ...... XI-5 E. PROSECUTION SHOULD NOT CONCEDE STANDING...... XI-8 F. DEFENDANT’S DISCLAIMER/ABANDONMENT ON ISSUE OF STANDING ...... XI-8 G. MOTION TO QUASH SEARCH WARRANT...... XI-10 H. MOTION TO TRAVERSE SEARCH WARRANT ...... XI-10 I. ILLEGALLY OBTAINED INFORMATION IN AFFIDAVIT ...... XI-15 J. GOOD FAITH EXCEPTION...... XI-16 K. SEALED AFFIDAVITS PURSUANT TO PEOPLE V. HOBBS ...... XI-17 L. SEVERABILITY OF SEARCH WARRANT ...... XI-19 M. PENAL CODE SECTION 871.5 REVIEW OF WARRANTS DECLARED INVALID...... XI-19 N. “TECHNICAL” MISTAKES -- CLERICAL ERRORS...... XI-19 O. PRIOR ILLEGAL ENTRY...... XI-21 P. COURT PROCEEDINGS INVOLVING CLAIMS OF PRIVILEGE ...... XI-21 Q. LOSS OF SEARCH WARRANT AFFIDAVIT ...... XI-22 R. SUMMARY OF PROCEDURE -- PRACTICE TIPS ...... XI-22 S. PROCEEDINGS FOR RETURN OF PROPERTY OF NON-DEFENDANT ...... XI-24
iv
APPENDIX
Appendix A Combined Search Warrant and Affidavit Form - With Footnotes
Appendix B Sample Search Warrant and Affidavit: Fruits, Evidence and Instrumentalities of a Crime - Robbery
Appendix C Sample Search Warrant and Affidavit: Fruits, Evidence and Instrumentalities of a Crime - Burglary
Appendix D Sample Search Warrant and Affidavit: Reliable Informant with Hobbs Sealing - Heroin
Appendix E Sample Search Warrant and Affidavit: Controlled Buy - Cocaine
Appendix F Sample Search Warrant and Affidavit: Rock House - Rock Cocaine
Appendix G Sample Search Warrant and Affidavit: Fruits, Evidence and Instrumentalities of a Crime - Gang Shooting
Appendix H Blank Return Form and Completed Sample Return to Warrant
Appendix I Addendum to Search Warrant Return: Request and Order for Deposit of Seized Funds into Bank Account
INDEX
TABLE OF CASES
v CHAPTER I
SEARCH WARRANT AND AFFIDAVIT -- DEFINITIONS AND COMMENTS
A. Introduction
The purpose of this Manual is to assist prosecutors and police officers in the preparation of valid search warrants. Chapters dealing with the service of warrants, informant motions, court proceedings and other related topics will also be found herein.
Although this Manual will be quite useful as a guide, prosecutors and police are encouraged to use their own ingenuity and legal knowledge in the preparation of warrants. Experience has shown that notwithstanding the contents of this Manual, the best way to learn to write search warrants is, simply, to write them.
B. Search Warrant Defined
“A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate”. (Penal Code section 1523.)
1. Form of Warrant
Penal Code section 1529 states that “(T)he warrant shall be in substantially the following form” and indicates what must appear in the warrant:
a. It directs service to “any peace officer.” b. The name of every person whose affidavit has been taken. c. The statutory grounds for issuance. (See section B.2 below.) d. A description, with reasonable particularity, of the persons, places, and vehicles to be searched. e. A description, with reasonable particularity, of the property and/or person(s) to be seized. f. The signature of the magistrate. g. The date issued.
The search warrant forms shown in this Manual conform to the requirements of Penal Code sections 1523 and 1529. A typical search warrant form appears at the end of this chapter. This form directs the service of the warrant to “any peace officer”.
I-1
2. Statutory Grounds for Issuance
Penal Code section 1524, subsection (a) sets forth the statutory grounds for the issuance of a search warrant. “A search warrant may be issued upon any of the following grounds:
(1) When the property was stolen or embezzled. (2) When the property or things were used as the means of committing a felony. (3) When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their being discovered. (4) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony. (5) When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11., has occurred or is occurring. (6) When there is a warrant to arrest a person. (7) When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.” (8) When the property or things to be seized include an item or any evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code. (9) When the property or things to be seized include a firearm or any other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in subdivision (b) of Section 12028.5. (10) When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code. (11) When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has
I-2 been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
A search warrant should indicate which of these grounds is being relied upon for the issuance of the warrant. The search warrant forms contain appropriate blanks, one or more of which must be checked, to specify the grounds for the issuance of the warrant. These grounds are statutory and cannot be modified. Subdivisions (2) and (4) (above) apply only to factual situations involving the commission of felonies, while subdivisions (1) and (3) apply to the commission of both felonies and misdemeanors. Subd. (5) is limited to violations of Penal Code section 311.3, which makes it a crime to film, photograph, or videotape sexual conduct of persons under the age of 14 years, and section 311.11, which makes it a crime to possess matter depicting sexual conduct of persons under the age of 18 years. Subd. (6) permits the issuance of a search warrant when there is a warrant to arrest a person. (See Section F., below.)
Subdivision (7) took effect on January 1, 2003. This subdivision will rarely be used because it applies only to a provider of electronic communication services or remote computing services and appears limited to misdemeanor violations. As a result, the search warrant forms used in this manual have not been modified to include this subdivision.
Subdivision (8) took effect in 2005. It also will rarely be used because it applies only to misdemeanor violations of Section 3700.5 of the Labor Code involving failure to secure the payment of compensation. Consequently, the search warrant forms that appear in this manual do not include this subdivision.
Subdivisions (1) through (8) all authorize the seizure of property (or persons) involved in the commission of a crime. Therefore, if property is not involved in a crime, it may not be subject to seizure pursuant to these eight subdivisions.
Subdivisions (9), (10), and (11) took effect on January 1, 2010. They authorize the seizure of a firearm or other deadly weapon under the control of a person arrested in connection with a domestic violence dispute (subdivision (9)); a firearm or other deadly weapon under the control of a person with certain mental disorders (subdivision (10)); and a firearm under the control of a person subject to a protective order (subdivision (11)). These subdivisions are not included in the search warrant forms that appear in this manual because they will rarely be used.
In the rare event that a search warrant is prepared to seize evidence described in subdivision (7) through subdivision (11), the search warrant form should be modified to include the appropriate subdivision.
3. Magistrate Defined
Penal Code section 808 designates as magistrates: judges of the superior courts, judges of the courts of appeal, and judges of the Supreme Court. Any of these judges is empowered to act
I-3 as a magistrate and issue a search warrant. A commissioner, a judge pro tem, and a referee are not magistrates.
C. Affidavit Defined
For search warrant purposes, an affidavit is a statement made under penalty of perjury before a magistrate.
“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.” (Penal Code section 1525.) “The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.” (Penal Code section 1527.) Affidavits in support of search warrants are usually in writing but may be oral if recorded. See Chapter IX for a discussion of oral and telephonic affidavits, facsimile search warrants and search warrants by electronic mail.
1. Form and Contents of Affidavit
The Fourth Amendment to the United States Constitution states in part that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation . . .” The California Constitution, Article I, section 13, contains similar language. It is recommended that the search warrant contain language that the affiant specifically swears that the facts set forth in the affidavit are true. (People v. Leonard (1996) 50 Cal.App.4th 878; People v. Hale (2005) 133 Cal.App.4th 942.)
The search warrant and affidavit are typically combined into a single form. A sample form appears at the end of this chapter.
The combined search warrant and affidavit form is preferable to separate forms for search warrants and affidavits. In the combined form, the search warrant and affidavit are one document so that the affidavit can be examined in the event that there are any defects or ambiguities on the face of the warrant that might be resolved by reference to the affidavit. “An affidavit can cure the overbreadth of a warrant if the affidavit is attached to and incorporated by reference in the warrant.” (United States v. Adjani 452 F.3d 1140 (9th Cir. 2006. See also People v. MacAvoy (1984) 162 Cal.App.3d 746.) Also, the combined form is more streamlined than separate search warrant and affidavit forms, and it is therefore easier to use when follow-up search warrants are obtained which incorporate other search warrants. The combined form is used in the sample search warrants following Chapter XI.
A typical combined form appears at the end of this Chapter. Certain information should be expressed in the search warrant and affidavit form, namely: 1) the name(s) of the affiant(s), 2) the statutory grounds for issuance, 3) a description with reasonable particularity of the persons, places, and vehicles to be searched, and 4) a description with reasonable particularity of the property and/or person(s) to be seized. The language in the search warrant is derived from Penal Code section 1529, which begins by stating: “The warrant shall be in substantially the following form:”
I-4
There may be more than one affiant in support of a search warrant. (See Skelton v. Superior Court (1969) 1 Cal.3d 144 and Penal Code section 1527.) Further, the affiants need not be peace officers. See People v. Bell (1996) 45 Cal.App.4th 1030, 1055, which upheld a search warrant affidavit prepared by an “investigative specialist” for the San Diego District Attorney’s Office, who was not a peace officer. Penal Code section 830.8 states that “Federal criminal investigators and law enforcement officers are not California peace officers . . .” However, they can be the affiant for a state-issued search warrant.
The affiant must state facts establishing probable cause for the seizure of the described items at the described locations. The United States Supreme Court has expressed the standard of probable cause as follows: “The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there in a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238. Emphasis added.) This standard for the issuance of a search warrant was reaffirmed in United States v. Grubbs (2006) 547 U.S. 90.
Several California appellate court decisions have held that the validity of California warrants shall now be determined according to the Gates “totality of circumstances” test. (People v. Spears (1991) 228 Cal.App.3d 1, 17; People v. Love (1985) 168 Cal.App.3d 104, 111; People v. Aho (1985) 166 Cal.App.3d 984, 990; and People v. Ramirez (1984) 162 Cal.App.3d 70.)
It is recommended that the affidavit be in a chronological and narrative form. It should include all the information the affiant has, including what he has personally seen and heard and what has been told to him by others. Simple, declarative sentences are best. Further, the affidavit should include a recitation of the affiant’s training and experience and the affiant’s conclusion, drawn from all the information in the affidavit that the items sought will be found at the locations to be searched. Documents such as police reports may be attached and incorporated by reference into the affidavit.
Penal Code section 1526 subd. (a) states that the magistrate may examine under oath the person seeking the warrant. In most cases involving written affidavits, it is rare for the magistrate to conduct an oral examination of the affiant under oath. Usually, the magistrate simply asks the affiant to swear to the contents of the written affidavit. However, if the magistrate does examine the affiant under oath, information given during this examination will not be considered part of the affidavit unless it in reduced to writing and signed by the affiant as part of the written affidavit presented to the magistrate. (Charney v. Superior Court (1972) 27 Cal.App.3d 888, 891.) Therefore, great care must be exercised to ensure that any important information related to the magistrate during such an examination is made part of the written affidavit and is signed by the affiant unless oral or telephonic affidavit procedures are being used. Oral and telephonic affidavits are discussed in Chapter IX. (See also Theodor v. Superior Court (1972) 8 Cal.3d 77, 87.)
I-5 D. Jurisdiction -- Including Out of County Search Warrants
A magistrate can issue a search warrant for any location within the county in which he or she sits. For example, a superior court judge sitting in Long Beach can issue a warrant for a location in Santa Monica and vice versa. (People v. Smead (1985) 175 Cal.App.3d 1101; People v. Emanuel (1978) 87 Cal.App.3d 205.)
A magistrate may issue a search warrant for a location outside of his or her county but within the state of California so long as it relates to an offense that can be prosecuted in the magistrate’s county. In People v. Ruster (1976) 16 Cal.3d 690, the California Supreme Court upheld the out-of- county service of a search warrant in a case in which criminal proceedings were pending against the defendant in the county in which the warrant was issued and where the property sought pertained to that pending case. In both People v. Fleming (1981) 29 Cal.3d 698, 707 and People v. Easley (1983) 34 Cal.3d 858, 869-70, the California Supreme Court held that a magistrate has jurisdiction to issue an out-of-county warrant, within the State of California, when he has probable cause to believe that the evidence sought relates to a crime committed within his county and thus pertains to a present or future prosecution in that county. (See also People v. Ruiz (1990) 217 Cal.App.3d 574, which holds the same.)
If an out-of-county search warrant does not fall within the holdings of the above cited cases, then it is necessary that the search warrant be submitted to a magistrate in the county in which the person, place, or vehicle to be searched is located. See, however, People v. Ruiz, cited above; People v. Galvan (1992) 5 Cal.App.4th 866; and People v. Dantzler (1988) 206 Cal.App.3d 289, all of which hold that suppression of evidence seized pursuant to an improperly issued out-of-county search warrant was not required because of the officer’s good faith reliance on the warrant.
E. Search Warrant in California for Crimes Committed Outside the State
A California magistrate can issue a search warrant for a location in his/her county to search for evidence of crimes committed in another state, even in the absence of a request from law enforcement authorities in that state. The California search warrant statutes contain no language suggesting the things to be seized must relate to a crime committed within this state. (See People v. Kraft (2000) 23 Cal.4th 978, 1051.)
F. Use of a Search Warrant to Serve an Arrest Warrant
The United States Supreme Court case of Steagald v. United States (1981) 451 U.S. 204, holds that officers seeking to enter the residence of a third party to serve an arrest warrant upon a person they reasonably believe to be within that residence can enter the location only if the third party consents, exigent circumstances exist, or the officer has a search warrant for that residence. Please note that Steagald is limited to situations involving the residence of a third party. Entry pursuant to the arrest warrant alone may still be made into the residence of the person named in the arrest warrant so long as officers have “reasonable grounds” to believe the person is home. (See People v. Jacobs (1987) 43 Cal.3d 472, 478; Steagald v. United States, supra, 451 U.S. at page 214, fn. 7; and Payton v. New York (1980) 445 U.S. 573, 602-603.)
I-6 Penal Code section 1524, subd. (a) (6), specifically provides for the issuance of a search warrant “when there is a warrant to arrest a person.” Basically, it requires only that the affiant identify himself or herself, describe how he or she knows that an arrest warrant exists for a specific person and set forth the facts showing that the person sought is at the place to be searched.
The person to be arrested should be described with “reasonable particularity.” Thus, the person should be described by name, sex, age, height, weight, hair, eyes and distinguishing characteristics to the extent known.
G. Preference Given to Search Warrants
Courts have consistently emphasized their preference for searches made pursuant to a search warrant. The following language has been repeatedly cited by appellate courts in ruling on the validity of search warrants:
If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by non-lawyers 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. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based. [Citation.] Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper technical, rather than a common sense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. (United States v. Ventresca (1965) 380 U.S. 102, 108-9.)
This standard for reviewing search warrant affidavits has been approved by the California Supreme Court in People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711; and People v. Mesa (1975) 14 Cal.3d 466, 469.
H. United States Supreme Court Decisions Governing Search Warrants
Decisions of the United States Supreme Court favor the use of search warrants. The current state of the law makes it extremely difficult for a defendant to prevent the admission of evidence seized pursuant to a search warrant. Three decisions, in particular, have had a tremendous impact on the
I-7 law and litigation of search warrants. These cases are Illinois v. Gates (1983) 462 U.S. 213; United States v. Leon (1984) 468 U.S. 897; and Franks v. Delaware (1978) 438 U.S. 154.
1. Illinois v. Gates (1983) 462 U.S. 213 -- Totality of the Circumstances Test
In Illinois v. Gates (1983) 462 U.S. 213, the United States Supreme Court abandoned the old and highly technical “two-prong test” for determining whether an informant’s information establishes probable cause. Instead, a “totality of the circumstances” approach was adopted. The Gates case and the totality of the circumstances standard are applicable in California. (People v. Spears (1991) 228 Cal.App.3d 1, 19.)
The Gates opinion is also important because it states that the standard for probable cause for the issuance of the warrant is a “fair probability” that contraband or evidence of a crime will be found in a particular place. This “fair probability” standard was re-affirmed by the United States Supreme Court in United States v. Grubbs (2006) 547 U.S. 90, 95.
The Gates opinion also states the duty of a reviewing court. “And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for concluding’ that probable cause existed.” (Illinois v. Gates, supra, at page 238.)
2. United States v. Leon (1984) 468 U.S. 897 -- Good Faith Exception
In United States v. Leon (1984) 468 U.S. 897, the United States Supreme Court established a “good faith exception” to the exclusionary rule when a search warrant is obtained. The rule of the Leon case is that evidence seized pursuant to a search warrant will not be suppressed if officers obtained the warrant in good faith and acted in reasonable reliance on a warrant issued by a neutral and detached magistrate. The evidence is admissible even if the search warrant is later found to be unsupported by probable cause, but this rule may not save the warrant if the affidavit contains substantial intentional misstatements, if the magistrate is not neutral and detached, or if the officer-affiant is not acting in good faith.
Leon, and its companion case of Massachusetts v. Sheppard (1984) 468 U.S. 981, were a drastic departure from previous case law since these cases allow the introduction of evidence seized pursuant to a search warrant, even if the search warrant is quashed for insufficient probable cause or is otherwise defective.
3. Franks v. Delaware (1978) 438 U.S. 154 -- Traversal of Warrant
In Franks v. Delaware (1978) 438 U.S. 154, the United States Supreme Court held that before a defendant can traverse a search warrant, the defendant must make a “substantial preliminary showing” with an offer of proof pointing out the specific areas of the affidavit claimed to be false, accompanied by supporting reasons. This means that only in rare cases can the affiant officer be cross-examined about information contained in the affidavit (i.e., a motion to traverse).
I-8 The Franks decision is a compelling reason to use a search warrant when it is desirable to protect the identity of an informant. In non-warrant situations in which an informant provides probable cause for an arrest or search, the police officer making the arrest or search can be cross-examined by the defense attorney about the informant. When a search warrant is obtained, however, the defense attorney is precluded from cross-examining the officer- affiant about the information contained in the affidavit (including information about the informant), except in the rare situation where the defense can make a “substantial preliminary showing” as required by Franks. This is discussed in further detail in Chapters VI and XI.
4. People v. Wilson (1986) 182 Cal.App.3d 742 -- Presumption of Validity
The Gates, Leon, and Franks cases are discussed and summarized in People v. Wilson (1986) 182 Cal.App.3d 742. The Court of Appeal in that case points out how difficult it is for defendants to suppress evidence seized pursuant to search warrants.
In short, the message delivered by the highest judicial authority is plain. The discharge, unpunished, of guilty defendants exacts an enormous price from society. Consequently, the sanction of suppressing relevant evidence should be reserved for cases of the most serious misconduct committed by agents of the commonwealth. With specific reference to facially sufficient warrants issued by neutral magistrates, it is a rare day indeed when they can be successfully challenged. One who ventures upon that effort better have his facts and figures, and they should be compelling. A fishing expedition will not be entertained. (People v. Wilson, supra, at page 750.)
I. Other Advantages of Search Warrants
1. Ramey Problems
The case of People v. Ramey (1976) 16 Cal.3d 263, 273, limited the right of officers to enter a home to make an arrest without an arrest warrant. However, since officers serving a search warrant are validly within the premises and their entry is judicially authorized, warrantless arrests within the premises while serving a search warrant are legal. (People v. McCarter (1981) 117 Cal.App.3d 894, 908.)
2. Withdrawal of Consent
A person who has consented to a search can withdraw that consent at any time. (People v. Hamilton (1985) 168 Cal.App.3d 1058, 1068.) Also, the voluntariness of a consent is a question of fact. If a judge finds that the consent was not voluntary, on appeal the inferences and conflicts in the evidence will be resolved against the People and in support of the judge’s ruling. This problem does not exist if a warrant is used.
I-9 3. Keeping Informant Confidential
Information received from an informant can be used to establish probable cause without revealing the informant’s identity when a search is made pursuant to a search warrant. (Evidence Code section 1042 (b).) Disclosure can be required only if the defendant can show that the informant is a percipient witness to the charged crime or that the informant might offer evidence tending to exonerate the defendant. (See Chapter VI, “Informants -- Protecting Identity.”)
Also, when a search warrant is obtained, the defense attorney is precluded from cross- examining the officer-affiant about the information contained in the affidavit (including information about the informant) except in the rare situation where the defense can make a “substantial preliminary showing” as required by Franks v. Delaware (1978) 438 U.S. 154. (See Chapter XI on Court Proceedings and Chapter VI on Informants.)
Further, the California Supreme Court in People v. Hobbs (1994) 7 Cal.4th 948 held that all or part of the information in a search warrant affidavit provided by an informant (whose only relevance is supplying probable cause) may be sealed to protect the informant’s identify. (See Chapter VI, Section I and Chapter VII, Section F on Sealing the Affidavit and “Hobbs Warrants.”)
4. Officer Protection
An officer serving a facially valid search warrant in an otherwise lawful manner is considered to be acting in the performance of his duties. The penalty for a crime committed upon such an officer may be enhanced by special allegations applicable to crimes committed against peace officers. This is true even if it is later determined that the warrant was based upon an insufficient affidavit. “[W]e cannot imagine the Legislature or the voters intended to divest a peace officer of special statutory protection simply because the warrant he was serving when attacked is later found lacking in probable cause.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222.)
Similarly, the case of People v. Mathews (1994) 25 Cal.App.4th 89, 96-97, held even if officers do not lawfully comply with the knock and notice requirements of Penal Code section 1531, once the occupant of a premises reasonably knows that police are entering with a search warrant, the occupant has no right to resist such entry and any such resistance may be prosecuted as an assault against the officers.
An officer obtaining and serving an invalid warrant is entitled to “qualified immunity” from civil damages. (See Malley v. Briggs (1986) 475 U.S. 335.)
J. Alternatives to a Search Warrant
Generally, when there is time to obtain a search warrant, one should be sought. However, sometimes there is insufficient probable cause for a search warrant or other reasons exist making it impractical or impossible to obtain one. It may nonetheless be desirable for a search to be
I-10 conducted, and prosecutors and peace officers should be aware of warrantless searches that are legally valid. Some of the alternatives are:
1. Probation Search
The suspect may be on probation, and a check of the court files or a call to the probation department may reveal that a condition of the suspect’s probation is that he submit to a search by a peace officer at any time of the day or night with or without a warrant. Such a condition of probation permits a search of the suspect’s person or property without a warrant and without the suspect’s consent. (People v. Mason (1971) 5 Cal.3d 759.) A probation search may be conducted without any probable cause at all; however, probation searches may not be undertaken for harassment or for arbitrary or capricious reasons. (People v. Bravo (1987) 43 Cal.3d 600, 610.)
An illegal search will not be “cured” by the subsequent discovery that the defendant is on parole or has a probation search condition. (In re Jaime P. (2006) 40 Cal.4th 128.) The United States Supreme Court has upheld probation searches, whether for an investigatory or probationary purpose, when supported by reasonable suspicion. (United States v. Knights (2001) 534 U.S. 112.)
2. Parole Search
Officers may search a parolee, his residence, and any property under his control without a warrant. For a parolee subject to a properly imposed search condition, there no longer need be a particularized suspicion that he has violated the law or another condition of parole, or is planning to do so. A parolee has a reduced expectation of privacy. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious, or harassing. (People v. Reyes (1998) 19 Cal.4th 743; People v. Sanders (2003) 31 Cal.4th 318, 333.)
In Samson v. California (2006) 547 U.S. 843, the United States Supreme Court held that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.”
The search of a parolee’s person or property may also be justified pursuant to Penal Code section 3067, which states that an inmate eligible for release on parole shall agree in writing to be subject to search and seizure by a parole officer or peace officer. This section applies only to inmates eligible for parole for an offense committed after January 1, 1997.
The searching officer must be aware that the suspect is on parole or subject to a search condition for the search to be valid. (People v. Sanders (2003) 31 Cal.4th 318; In re Jaime P. (2006) 40 Cal.4th 128.)
I-11 3. Consent
Officers may obtain consent to search. (Florida v. Bostick (1991) 501 U.S. 429; Florida v. Jimeno (1991) 500 U.S. 248; People v. James (1977) 19 Cal.3d 99, 113-114; People v. Reyes (1974) 12 Cal.3d 486, 501.) A suspect need not be advised of Miranda rights in order to give a valid consent to search. (Schneckloth v. Bustamonte (1973) 412 U.S. 218; People v. Ratliff (1986) 41 Cal.3d 675, 686.) A suspect need not be advised of his right to refuse consent or that he is free to go in order to give a valid consent to search. (United States v. Drayton (2002) 536 U.S. 194; Ohio v. Robinette (1996) 519 U.S. 33; People v. James (1977) 19 Cal.3d 99, 115-116.) During a valid traffic stop, officers may request consent to search from a driver of a vehicle without any additional showing of probable cause. (People v. Gallardo (2005) 130 Cal.App.4th 234.)
Cases have also held that a consent search may be valid despite a statement by officers that if consent is refused, officers will attempt to get a search warrant. (People v. Goldberg (1984) 161 Cal.App.3d 170; People v. Ward (1972) 27 Cal.App.3d 218, 224; and People v. Gurtenstein (1977) 69 Cal.App.3d 441.) Consent has also been held voluntary despite the fact that the suspect is handcuffed. (People v. McClure (1974) 39 Cal.App.3d 64, 69-70; People v. Ruster (1976) 16 Cal.3d 690, 701; People v. Escobedo (1973) 35 Cal.App.3d 32.)
Consent to search may be given by a third party providing officers believe in good faith that the third party had authority to consent to the search. (De Conti v. Superior Court (1971) 18 Cal.App.3d 907, landlord’s agent gave consent; People v. Wilkins (1993) 14 Cal.App.4th 761, 773; and Beach v. Superior Court (1970) 11 Cal.App.3d 1032, consent by co-occupant; People v. Ingram (1981) 122 Cal.App.3d 673, maid invited officers into motel room to see drugs.) In Illinois v. Rodriguez (1990) 497 U.S. 177, the United States Supreme Court held that the apparent authority of the third person to consent to the search of the premises is sufficient to validate a consent search, even though that individual lacks actual authority.
4. Exigent Circumstances
The existence of an emergency or other exigent circumstances will justify an entry and at least a partial search without a search warrant. (People v. Hill (1974) 12 Cal.3d 731, 754- 757; Carrington v. Superior Court (1973) 31 Cal.App.3d 635, 639; People v. Roberts (1956) 47 Cal.2d 374.) In particular, see People v. Ray (1999) 21 Cal.4th 464, re entry into residence by police officers discharging their “community caretaking functions” after responding to a call of an open door at a residence and inside appeared to have been ransacked; People v. Bacigalupo (1991) 1 Cal.4th 103, 122-123, re exigent circumstances to enter and arrest suspected murderer in his home; People v. Trover (2011) 51 Cal.4th 599, 602, re emergency aid exception requires only an objectively reasonable basis for believing a person seriously injured or threatened in residence; People v. Soldoff (1980) 112 Cal.App.3d 1, re possible shooting victim inside residence and observation of bullet hole and blood; Cleaver v. Superior Court (1979) 24 Cal.3d 297, re emergency entry to recover evidence at fire scene where evidence was in danger of being destroyed by water and smoldering ruins; People v. Duncan (1986) 42 Cal.3d 91, 104; People v. Stegman (1985) 164 Cal.App.3d 936; People v. Messina (1985) 165 Cal.App.3d 937, and People v. Osuna (1986) 187 Cal.App.3d
I-12 845, re search of suspected drug factories involving volatile and explosive chemicals; People v. Frye (1998) 18 Cal.4th 894, 990 and People v. Wilkins (1993) 14 Cal.App.4th 761, 773, re entry to arrest wife beater; People v. Chung (2010) 185 Cal.App.4th 247, re emergency entry to aid a live animal in distress; and Tamborino v. Superior Court (1986) 41 Cal.3d 919, re radio call of robbery at particular address and observation of blood spots outside.
The United States Supreme Court has recognized an “emergency aid” exception to the warrant requirement where the warrantless entry into a residence by peace officers is justified by the need to protect or preserve life or avoid serious injury. Michigan v. Fisher (2009) 558 U.S. ____; Brigham City v. Stuart (2006) 541 U.S. 398. In Kentucky v. King (2011) 131 S.Ct. 1849, the Supreme Court recognized that the need to prevent the imminent destruction of evidence is a sufficient justification for a warrantless search of a home.
5. Inspection of Auto Repair Facility
Vehicle Code section 2805 permits peace officers whose primary responsibility is vehicle theft investigations to conduct warrantless inspections of auto repair facilities, parking lots, dismantling facilities, body shops and similar facilities for the purpose of examining the autos and registration documents in order to find stolen cars and parts. As long as the inspected premises constitute a commercial enterprise as contemplated by section 2805, the business owner and his employees are on notice that they cannot expect to be free from periodic inspection. (People v. Potter (2005) 128 Cal.App.4th 611.)
6. Search of a Car
The California rule for the search of a car is set forth in People v. Chavers (1983) 33 Cal.3d 462, and People v. Superior Court (Valdez) (1983) 35 Cal.3d 11, which state that probable cause to believe that a lawfully stopped vehicle contains contraband justifies an immediate warrantless search of the automobile, including its trunk, despite the absence of additional exigent circumstances. (See also People v. Carpenter (1997) 15 Cal.4th 312, 364-5.)
The United States Supreme Court has set forth the basic rules for car searches in Arizona v. Gant (2009) 556 U.S. 332 and United States v. Ross (1982) 456 U.S. 798. In Arizona v. Gant, the Supreme Court held that “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. In United States v. Ross, the Supreme Court held that police officers who have lawfully stopped an automobile and who have probable cause to believe that contraband is located somewhere therein may conduct a warrantless search of the vehicle which is as thorough as that which a magistrate could authorize by a search warrant. This includes closed containers within the vehicle. (See also California v. Acevedo (1991) 500 U.S. 565.) In Wyoming v. Houghton (1999) 526 U.S. 295, the United States Supreme Court held that “police officers with probable cause to search a car may inspect [any] passenger’s belongings found in the car that are capable of concealing the object of the search.” (Wyoming v. Houghton, supra, at page 303.)
I-13 When officers impound a vehicle, inventories pursuant to standard police procedures are reasonable, and any contraband or other evidence of a crime discovered during the search may be seized. (Colorado v. Bertine (1987) 479 U.S. 367, 371.)
Motor homes are considered vehicles and not homes for search purposes and thus may also be searched without a search warrant and without exigent circumstances as long as the searching officers have probable cause to believe the motor home contains contraband and so long as the vehicle is being used on the highway or is capable of such use and is located at a place not regularly used for residential purposes. (See California v. Carney (1985) 471 U.S. 386, and People v. Black (1985) 173 Cal.App.3d 506.)
Since the passage of Proposition 8, the “Victim’s Bill of Rights,” on June 9, 1982, the federal standard of auto searches is applicable in California. (See In re Lance W. (1985) 37 Cal.3d 873, 890.)
7. Search Following Arrest
Federal law permits a full search of any arrestee, regardless of the offense for which the arrest was made. (See United States v. Robinson (1973) 414 U.S. 218; and Gustafson v. Florida (1973) 414 U.S. 260.) In Atwater v. Lago Vista (2001) 532 U.S. 318, the United States Supreme Court held that a custodial arrest is justified if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, such as a fine-only offense. California appellate decisions follow federal law and hold that officers in California may conduct full searches (including into pockets) following a lawful arrest, including arrests for Vehicle Code violations, for being drunk in public [Penal Code section 647(f)], and for failure to provide documentary identification after a Vehicle Code infraction [Vehicle Code section 40302(a)]. (See People v. McKay (2002) 27 Cal.4th 601 and People v. Gomez (2004) 117 Cal.App.4th 531, 539.) In People v. Diaz (2011) 51 Cal.4th 84, the California Supreme Court upheld the delayed, warrantless search of a cell phone that was “immediately associated with defendant’s person” at the time of his arrest (51 Cal.4th at page 93).
8. Plain View
An officer may seize items that appear to be contraband that are in plain view. Harris v. United States (1968) 390 U.S. 234, 236; People v. Rios (1976) 16 Cal.3d 351, 357. Also, an officer may, without a warrant, seize a container in plain view where the officer has probable cause to believe the container holds an illegal substance. (Texas v. Brown (1983) 460 U.S. 730, involving a knotted balloon.) However, if an officer sees contraband through a window or open door of a hotel room or residence, the officer will need either a search warrant or legal justification, such as exigent circumstances or consent, to make entry into the location. (People v. LeBlanc (1997) 60 Cal.App.4th 157; People v. Ortiz (1995) 32 Cal.App.4th 286.)
I-14 9. Suppression of Evidence for Fourth Amendment Violation
In Herring v. United States (2009) 555 U.S. 135 (129 S.Ct. 695), the United States Supreme Court stated that “The fact that a Fourth Amendment violation occurred – i.e., that a search or arrest was unreasonable – does not necessarily mean that the exclusionary rule applies.” The high court further stated that “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” In cases in which a judge has found a violation of the Fourth Amendment, prosecutors should argue that under the Herring decision, the evidence should not be suppressed.
K. Use of Search Warrant for AIDS Blood Test
Penal Code section 1524.1 provides for the use of a Search Warrant to test a criminal defendant’s blood for human immunodeficiency virus (HIV) when certain sexual offenses are charged. The warrant may be issued if, after considering supporting and rebutting affidavits and medical reports, the court finds probable cause to believe (1) the defendant committed the offense charged, and (2) a body fluid capable of transmitting the virus has been transferred to the victim. In Humphrey v. Appellate Division (2002) 29 Cal.4th 569, the California Supreme Court held that the same standards that apply to the issuance of search warrants in criminal cases also apply to section 1524.1 warrants. The Court upheld the warrant, finding that information and belief alone may support the issuance of search warrants.
L. Form -- Combined Search Warrant and Affidavit
See following page.
I-15 SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) ______swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
______, HOBBS SEALING REQUESTED: YES NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by ______[Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: ______it was stolen or embezzled ______it was used as the means of committing a felony ______it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, ______it tends to show that a felony has been committed or that a particular person has committed a felony, ______it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring ______there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
FOR THE FOLLOWING PROPERTY/PERSON:
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this ______day of ______, 20____, at ______AM/PM. .
______, HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES NO Judge of the Superior Court of the State of California, County of Los Angeles. SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
CHAPTER II
DESCRIBING THE PLACES, VEHICLES, AND PERSONS TO BE SEARCHED
A. Introduction
The Fourth Amendment to the United States Constitution states, in part, the following:
. . . no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Penal Code section 1529 also states that the property, thing, things, or persons to be searched must be described with “reasonable particularity.”
The general rule is that descriptions in a search warrant should be of sufficient particularity so that if an officer with no knowledge of the case were to serve the warrant, the officer would have no difficulty in locating the place, recognizing the vehicle, or identifying the person to be searched. Adherence to this general rule will satisfy the Penal Code requirement of reasonable particularity.1
It is important for descriptions to be accurate. An incorrect address or mistaken description may invalidate the search warrant.2 Thus, it is recommended the affiant personally observe the place, vehicle, and person to be searched in order to ensure an accurate description or have another reliable person do so.
1. Description in General
Generally, the description of a dwelling should include the complete address and a brief description of its outer appearance. A vehicle description should include the color, year, make, model, and license number. The description of a person should include a name (if known), physical appearance, and distinguishing marks, if any. It is also good practice to give the probable location of a vehicle or person to be searched, especially if either cannot otherwise be fully described. This adds “particularity” to the description.
It is also desirable when describing structures such as houses, apartment units, stores, etc. to include a phrase which makes clear that the search is to encompass the entire structure, its surrounding grounds, and any associated structures. Thus, in the most commonly encountered situation, the search of a house, the description might be as follows:
1Steele v. United States (1925) 267 U.S. 498, 503 states: “It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” (See also People v. Grossman (1971) 19 Cal.App.3d 8, 11.)
2See Chapter XI, Section N, for exceptions.
II-1 . . . the premises at 11301 East Valley Boulevard, El Monte, further described as a single-story dwelling house with a tan stucco exterior, dark brown wooden trim, and a red tile roof; and all rooms, attics, basements, and other parts therein and the surrounding grounds and any garages, storage areas, trash containers, and out- buildings of any kind located thereon.
2. Search of Premises
The use of the word “premises” in the description of a location to be searched provides a broad scope of the search to be conducted. “[A] warrant to search “premises” located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integral unit [citations.]” (People v. Gallegos (2002) 96 Cal.App.4th 612, 625; People v. Smith (1994) 21 Cal.App.4th 942, 950; People v. Minder (1996) 46 Cal.App.4th 1784, 1788; People v. Dumas (1973) 9 Cal.3d 871, 881, fn. 5.)
Several cases have held that a warrant to search “the premises” at a particular address is sufficient to support the search of garages, outbuildings, and appurtenances in addition to the main building. People v. Mack (1977) 66 Cal.App.3d 839, 859, and People v. McNabb (1991) 228 Cal.App.3d 462, 469, held that the word “premises” included both the house and the garage, and People v. Elliott (1978) 77 Cal.App.3d 673, 689, held that “appurtenant buildings” included the garage and the two autos within it. See also People v. Grossman (1971) 19 Cal.App.3d 8, 11-12, which held that a search warrant for the premises located and described as “13328 Merkel Avenue, Apt. A. . . “ included a carport cabinet marked “A”; and People v. Weagley (1990) 218 Cal.App.3d 569, which held that a search warrant for a location includes authority to search the mailbox of that location. People v. Dumas (1973) 9 Cal.3d 871, fn. 5, held that “premises” includes outbuildings. People v. Smith (1994) 21 Cal.App.4th 942 held that the “premises” included a detached barn on a 40 acre parcel. See also People v. Minder (1996) 46 Cal.App.4th 1784, 1789 which gave a similarly broad definition to the term “premises.”
Also, if there are any places of special interest at the location to be searched such as a cave, safe, or wall compartment, that place should be specifically described, especially if it is believed the items sought will be found within that particular place. (See examples below and in Section D.)
B. Describing Places -- Address Known -- Examples
These examples are for guidance only and need not be followed exactly either as to form or content. They can and should be modified to fit the facts of a particular case. It is better to over- describe than to under-describe.
1. House
In giving a street address it is important to specify “North,” “South,” “East,” or “West,” if that is part of the address. Also, it is important to specify “Street,” “Avenue,”
II-2 “Boulevard,” “Way,” etc. This avoids any ambiguity as to whether the address “212 Acacia” refers to 212 South Acacia Street or 212 Acacia Circle, which may be nearby and have a similar appearance.
. . . the premises at 212 South Acacia Street, Long Beach, further described as a single-story dwelling house with a brown shingle roof and light green stucco exterior; including all rooms, attics, basements, and other parts therein, the surrounding grounds and any garages, storage areas, trash containers, and outbuildings of any kind located thereon.
Another method of avoiding ambiguity in the description of a residence is by reference to the cross-streets.
. . . the premises at 210 West Temple Street, Los Angeles, further described as a single story dwelling house on the south side of Temple Street between Broadway and Spring Streets; including all rooms, attics, basements, and other parts therein, the surrounding grounds, and any garages, storage rooms, storage areas, trash containers, and outbuildings of any kind located thereon.
2. Apartment
Be certain to limit the description to the apartment unit in question and not the entire apartment building, unless the affidavit justifies a search of the entire building. Thus, include the apartment number or its location within the building.
. . . the premises at 1725 Main Street, Apartment No. 228, Santa Monica, further described as an apartment unit within a four-story multi-unit apartment house, dark green in color with light green trim, and bearing the name “LaMer Apartments,” and all rooms, attics, and other parts within Apartment No. 228 and all garages, trash containers, and storage areas designated for the use of Apartment No. 228.
If the apartment unit in not clearly marked with a number or letter, its location within the building should be clearly stated.
3. Store or Business
The name of the business, the address, and a brief description of its outer appearance should be stated.
. . . the premises known as the “Katsiganis Coffee Shop” located at 415 West Ocean Boulevard, Long Beach, including all rooms, dining areas, service areas, kitchens, pantries, stoves, refrigerators, restrooms and other parts within the business including an office and a safe contained within the office in the rear of the premises, and any storage rooms, storage areas and trash containers, attached or unattached, located thereon. This location is a coffee shop on the first floor of
II-3 a multi-story commercial building and the words, “Katsiganis Coffee Shop -- Greek Dishes a Specialty,” appear in gold letters on the front window.
This description makes it clear the affiant is requesting and the magistrate is authorizing a thorough search of all parts of the business, including the safe.
C. Describing Places -- Address Unknown -- Examples
If the specific address is unknown or the location is not marked with an address, special particularity should be used in describing it.
. . . a green stucco two-story dwelling house with a red roof and boarded up windows located on the north side of 91st Place, between Halldale Avenue and Normandie Avenue in Los Angeles, and all rooms, attics, basements, and other parts therein, including a compartment located within the west living room wall, and the surrounding grounds, and any garages, storage areas, trash containers, or outbuildings of any kind located thereon. This house is the fourth structure west of the northwest corner of Normandie Avenue and 91st Place. It is extensively marked with graffiti and the words “Little Chico” appear in large block letters on the front door.
This description is sufficiently detailed to avoid mistaking this house from other similar abandoned ones on the same block. Also, the specific reference to the wall compartment makes it unmistakable that the searching officers may go into the structure of the wall itself, if necessary.
. . . a large, dilapidated two-story barn, approximately one hundred feet on each side, faded red in color, and located on the south side of Mulholland Highway approximately 2.8 miles west of Las Virgenes Road in the Los Angeles County area east of Malibu Lake, and all rooms, attics, cellars, lofts, storage areas, and other parts therein, and the surrounding grounds and any storage areas or outbuildings of any kind located thereon, including the two junked cars and the farm implements. The roof of the barn bears faded white letters reading “Chew Mail Pouch Tobacco.” The structure is located approximately two hundred feet off the road and there are several old farm implements and two junked cars in front of the structure; one of the cars appears to be a white, 1975 Chevrolet.
These descriptions are more detailed than those in which an address is known. This is because sufficient detail must be given to avoid any possibility that the description could apply to other nearby locations.
D. “Special” Hiding Places at or Within a Location
If there is a known hiding place of special interest at the premises to be searched, a description of that hiding place should be specifically included within the description of the premises. This was done in two of the preceding examples: the safe in the coffee shop and the wall compartment
II-4 in the house with no address. Failure to specifically mention an unusual hiding place does not necessarily mean it cannot be searched if discovered since the phrase, “and all other parts therein,” is sufficiently broad to encompass secret compartments and safes. However, the better practice is to specifically mention the special or unusual hiding place, if known. Note: in the body of the affidavit, the affiant must state how he knows about the special hiding place. See, e.g., People v. Miller (1978) 85 Cal.App.3d 194, 203, which involved illegal weapons stored in a secret compartment in a residence.
E. Describing Vehicles
1. General Description
The use of a vehicle in the commission of a crime justifies its search. (See People v. McNabb (1991) 228 Cal.App.3d 462, 469.) Generally, the color, year, make, model, and license number of the vehicle to be searched will constitute an adequate description.
. . . a maroon 2005 Mercury Grand Marquis four-door sedan bearing California license number 2ABC123.
If the license number of the vehicle in unknown, other details of its appearance should be given to distinguish it from other similar vehicles. (People v. McNabb (1991) 228 Cal.App.3d 462, 469.) Also, in such a case, the probable location of the vehicle should be given. . . . an approximately 2005 Chrysler two-door hard-top, dark green vinyl top, white body, “mag” wheels, license number unknown, believed to be parked at or near 849 South Broadway, Los Angeles, 90014.
The expression “believed to be at or near” is preferable to a definite statement of the vehicle’s location and allows a search of the vehicle even if it is not found where it was “believed to be” so long as it is otherwise recognizable. (See People v. McNabb (1991) 228 Cal.App.3d 462, 469.)
If the affiant has information that the item he is searching for could possibly be found secreted within an unusual hiding place in the car which may require partial disassembly of the car, it is better practice for this hiding place to be specifically mentioned in the description.
. . . a white 2005 Cadillac Deville, California license number 2ABC123, believed to be parked at or near the south side of Pier B, Long Beach Harbor and all parts and compartments therein including the area within the front passenger door.
The body of the affidavit must contain information justifying the belief the contraband is within the front passenger door. (See Chapter IV.)
II-5 It is also good practice to list the probable location of a car in any case in which the car is not being searched in conjunction with a nearby structure also listed in the warrant. Thus, a car alone parked at the docks should be described as above.
2. Search Warrant for “Any Vehicle”
A request in the search warrant to search “any vehicle under the dominion or control” of a particular person may be too broad because it does not specifically describe the vehicle to be searched and leaves the decision of which vehicles to search to the discretion of the officer.
However, if the affiant can establish that the suspect keeps or delivers contraband in whatever vehicle he happens to be using, and that the suspect uses a number of vehicles or often uses borrowed vehicles, the warrant may then be issued for, “any vehicle under the control of or occupied by (suspect’s name) at the time this warrant is served.” (People v. Sanchez (1981) 116 Cal.App.3d 720, 727-728.)
Sometimes, the officers will learn of the existence of a vehicle belonging to the suspect while they are searching the suspect’s residence. If the vehicle is a likely hiding place for evidence or contraband, then the same probable cause that was used for the search warrant for the suspect’s residence should be sufficient for a warrantless search of the suspect’s vehicle. See, for example, People v. Dumas (1973) 9 Cal.3d 871 in which the California Supreme Court upheld the warrantless search of the defendant’s vehicle parked near his residence by officers searching his residence pursuant to a search warrant.
3. Seizure of the Vehicle
In People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, the police obtained a search warrant in a murder investigation to search the defendant’s residence, person, and vehicle. The warrant did not expressly grant authority to transport the vehicle to a crime laboratory for forensic testing. Nevertheless, the vehicle was transported to a police laboratory for a scientific analysis of trace items which was completed 12 days later. The Court of Appeal upheld the search holding that “a valid warrant to search a vehicle brings with it authorization to seize it for the time reasonably needed to undertake the lawful search.” (People v. Superior Court (Nasmeh), supra, at page 97.)
The fact that the search of the car was not completed until after the 10-day period of Penal Code section 1534 is not a constitutional violation. “As a general proposition, ‘(t)he Fourth Amendment does not specify that search warrants contain expiration dates.’ (Cite) ‘Completing a search shortly after the expiration of the search warrant ‘ -- a time period governed in this state by section 1534 -- ‘does not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence so long as probable cause continues to exist, and the government does not act in bad faith.’ (Cite)” (People v. Superior Court (Nasmeh), supra, at page 99.)
II-6 4. Installing a Tracking Device
A common investigative technique in narcotics investigations is the surveillance of a suspect driving his vehicle. Such a surveillance can help determine the suspect's criminal associates and whether the suspect may be transporting narcotics or narcotics proceeds. Often a narcotics investigator will install and monitor a tracking device on the suspect's vehicle to assist in the surveillance of the moving vehicle.
On January 23, 2013 the United States Supreme Court issued its opinion in United States v. Jones (2013)____L Ed 2d _____. The Court disapproved the warrantless installation and monitoring of a tracking device attached to the defendant's car. Although the majority opinion did not state that officers could use a search warrant to legally install and monitor a tracking device, the concurring opinion noted that "the police may always seek a search warrant."
Penal Code section 1524 subdivision (a)(4) states that a statutory ground for the issuance of a search warrant is "When the property or things to be seized consist of any item or constitute any evidence to show a felony has been committed, or tends to show that a particular person has committed a felony." This statutory language appears broad enough to encompass the installation of a tracking device on a vehicle.
The location to be searched would be a simple description in the warrant of the vehicle to which the tracking device would be attached, e.g. "A blue 2010 Toyota Camry, license number ABC123."
The items to be seized could be described in the warrant as follows: "This search warrant authorizes the installation of a tracking device on the above-described vehicle within ten days following the issuance of the warrant; further, this warrant authorizes the monitoring and recording of the movements of the vehicle as shown by the tracking device for a period of ____ days following the issuance of this warrant, probable cause having been shown for the monitoring of the tracking device for that length of time."
A search warrant is presumed to be valid for ten days after issuance. If ten days is sufficient time for both the installation and monitoring of the tracking device, then no request for additional time is necessary. But if officers are seeking to continue monitoring beyond ten days after the warrant has been issued, then the affidavit in support of the warrant must establish justification for doing so. Otherwise the officers may have to reapply for a new search warrant at the end of the 10 day period. If monitoring extends beyond ten days after the issuance of the warrant, officers should consider filing a conditional return every ten days to inform the issuing magistrate on the progress of the investigation.
II-7 F. Describing Persons -- Examples
The description of a person should include the name, sex, race, age, height, weight, hair color, eye color, and distinguishing marks to the extent they are known.3 Again, as with a vehicle, if only the person is to be searched (not in conjunction with a place) or if the description is incomplete or uncertain, then his or her probable location should be given.
. . . the person known as “Stubbs,” male/black, approximately 25-30 years, 4’11”, 140 lbs., black hair and eyes, with a mustache and goatee, and believed to be residing at 8640 California Avenue, South Gate.
If the search of the person is being conducted in conjunction with the search of his location or residence, he may be described as being at that location.
. . . the person of “Richard,” a male/Caucasian, approximately 70 years old, 5’11”, 200 lbs., brown hair and eyes, tip of middle finger on left hand missing, and believed to be within the above described premises.
It is sometimes difficult to obtain a complete description of the person to be searched. However, even a partial description may satisfy the requirement of reasonable particularity, especially if a probable location is indicated and the person is later found and searched within the location. A bare minimum description should include sex, race, approximate age, and probable location. If additional distinguishing characteristics are known, they should be included. It is insufficient, however, merely to state “any persons within the above described premises,” or “other unidentifiable persons.” (People v. Tenney (1972) 25 Cal.App.3d 16.)
G. Use of Photographs and Diagrams
The use of photographs and diagrams to supplement a written description should be considered if an adequate written description would be difficult to formulate or would be excessively lengthy.
. . . the premises of a large, dilapidated red barn located on the south side of Mulholland Highway approximately 2.8 miles west of Las Virgenes Road in the Los Angeles County area as shown on the photograph attached hereto and incorporated as Exhibit No. 1; and all rooms, attics, cellars, lofts, storage areas, and other parts therein, and the surrounding grounds and any storage areas or outbuildings of any kind located thereon.
The photograph marked Exhibit No. 1 should be attached to the combined search warrant/affidavit form as an exhibit.
. . . a small wooden shack, and all rooms and parts therein, and the surrounding grounds consisting of approximately 20 acres, located just west of the Golden State Freeway and
3Penal Code section 1525 requires “naming or describing the person to be searched or searched for . . .”, but the recommended practice is to include both the name and description in order to avoid identification problems.
II-8 south of Henry Mayo Drive (near Castaic Junction) as marked on page 123 of the Thomas Bros. Map attached hereto and incorporated as Exhibit No. 1 and as outlined in red on the aerial photograph attached hereto and incorporated as Exhibit No. 2.
. . . a silver gray 2005 Cadillac Deville Sedan as shown on the photograph attached hereto and incorporated as Exhibit No. 1 and believed to be parked at 1132 Daniels Drive, Beverly Hills.
. . . the person known as “Angel,” a male/Caucasian, approximately 30-40 years, 5’5”, 180 lbs., as shown on the photograph attached hereto and incorporated as Exhibit No. 1 and believed to be residing within the premises described above.
In the case of vehicles and persons, it may still be desirable to give their probable location. (See Sections E and F above.)
H. Including Unique Features
A structure is usually distinguished by its address, a vehicle by its license plate, and a person by his or her name. But if the warrant is to search a black Volkswagen Beetle and the license number and year are unknown, then some other distinguishing characteristic should be included in the description such as a broken headlight, a dented fender, a missing chrome strip, a particular primer spot, etc. Analogous distinguishing characteristics can be used to describe structures, persons, or any other things to be searched if the more conventional ways of describing them cannot be used or are insufficient.
If for some reason it is impossible to get a thorough description of the place, vehicle, or person to be searched, then state in the body of the affidavit the reason for the lack of specificity. One common reason is the investigating officer’s inability to get close enough to get a good description without compromising the investigation.
I. Accuracy -- Mistakes Do Not Necessarily Invalidate Search Warrant
Accuracy is important. An incorrect address or mistaken description may invalidate a search warrant. Reference to sources such as the U.S. Post Office website, road maps, and telephone books may help determine a correct address and avoid the misspelling of a street name. Old police reports may be used to obtain or verify an address, license number, vehicle description, name, and physical description. DMV records and documents are also helpful.
If problems in surveillance make it difficult to obtain a complete description, explain this difficulty in the body of the affidavit.
In the event a description is found to be incorrect after the warrant has been signed but before it has been served, it must not be served without first being corrected and signed again by both the magistrate and the affiant. (See Chapter X.)
II-9 If an address or other description is found to be inaccurate after service of the warrant, this does not necessarily mean the entire search is invalid. In People v. Amador (2000) 24 Cal 4th 387, Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, People v. Lovett (1978) 82 Cal.App.3d 527, and People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, the address given was incorrect but the search was upheld. Nevertheless, every effort should be made to ensure accuracy during the preparation of the warrant. Proofreading is essential.
J. Number of Places, Vehicles or Persons per Warrant
There in no limit to the number of locations, vehicles, and persons which may be searched pursuant to a single warrant so long as the affidavit sets forth probable cause for each.
K. Searches of Other Than Places, Vehicles and Persons
Anything that is capable of containing a sought-after item may be seized and searched pursuant to a warrant. The search warrant and affidavit must contain a “reasonably particular” description of the thing or container to be searched and its location. For example, if a suitcase reasonably believed to contain cocaine is in the American Airlines Air Freight warehouse at Los Angeles International Airport, the description of the “place” to be searched would be as follows:
. . . a blue and green suitcase bearing American Airlines Baggage Tag No. AA-171-48, presently located within the secured baggage room of the American Airlines Air Freight warehouse, Los Angeles International Airport, 267 Center Way, Los Angeles, 90045.
This permits a search of the baggage room for the suitcase and of the suitcase for cocaine. See also People v. Lester (1980) 101 Cal.App.3d 613, wherein a search warrant was obtained for a suitcase believed to contain marijuana. The suitcase was discovered by a narcotics-detecting dog at San Diego Airport following a tip from Florida authorities.
L. “Newsroom” Searches
Penal Code section 1524, subsection (g), states: “No warrant shall issue for any item or items described in section 1070 of the Evidence Code.” Evidence Code section 1070 is the so-called “newsman’s privilege” and the items described therein are unpublished information such as “notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public . . .” Thus, such items may not be seized pursuant to a search warrant.
Note: it is not the search of the newsroom that is prohibited; it is the search for “unpublished information” which is prohibited, regardless of its location. Thus, newsrooms may still be searched for other fruits, instrumentalities, and evidence of crimes as set forth in Penal Code section 1524, subsection (a).
Note also that the issuance of a search warrant for unpublished information is still permitted in most jurisdictions other than California. The United States Supreme Court has ruled that such searches are legal except where expressly prohibited by state law, as in California. (Zurcher v. The Stanford Daily (1978) 436 U.S. 547.)
II-10
M. Office of Attorney-Doctor-Psychotherapist-Clergyman
Penal Code section 1525 states in part that the application for a search warrant shall specify when applicable, that the place to be searched is in the possession or under the control of an attorney, physician, psychotherapist, or clergyman.
Penal Code section 1524 subdivisions (c) through (f) provide that no search warrant shall issue for any documentary evidence in the possession or under the control of any person who is a lawyer, physician, psychotherapist or clergyman, and who is not reasonably suspected of criminal activity related to the documentary evidence, unless certain procedures involving a special master are followed. The statute provides for the appointment of a special master by the court, for procedures to be followed in the service of the warrant, and for a possible court hearing regarding any seized property. Any prosecutor or peace officer involved in the preparation of a search warrant that may require the appointment of a special master should carefully review this statute to ensure proper compliance with these procedures.
The special master procedures are limited to the four named professionals and do not extend to other professionals, such as experts and consultants, who might be hired by the named professionals. (PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal.App.4th 1687.) A special master is not necessary if the attorney, etc. is himself reasonably suspected of criminal activity. (People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387, 404; People v. Blasquez (1985) 165 Cal.App.3d 408.) However, an attorney suspected of criminal activity is entitled to an in-camera hearing on the applicability of the attorney-client privilege to client files seized from the attorney’s office pursuant to a valid search warrant. (People v. Superior Court (Bauman & Rose) 37 Cal.App.4th 1757, 1763-4.)
N. Telephone Records and Computer Records in Possession of Foreign Corporations
Penal Code section 1524.2 provides for the issuance of search warrants “for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public where those records would reveal the identity of the customers using those services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications.”
This section further provides that the corporation shall have five days to produce the records but that if special justification can be shown the issuing court can require production of the records in less than five days.
To whom is such a warrant directed? Upon whom is it served? In adding section 1524.2 to the Penal Code, the legislature also made certain changes to Corporations Code section 2105 which now requires that all foreign corporations doing business in California file a statement with the California Secretary of State listing the name of an agent within the state upon whom search warrants issued pursuant to Penal Code section 1524.2 can be served even though the actual
II-11 records might be stored out of state. The name and address of such agent can be obtained by contacting the California Secretary of State.
Thus, for example, a search warrant in such cases would show the person/place to be searched as follows:
YOU ARE THEREFORE COMMANDED TO SEARCH:
Ms. Charlene Sample Agent, Miami Online 5555 K. Street, #242 Sacramento, CA 95814
California corporations that provide electronic communication services or computer services can be served with a search warrant for records simply by serving the warrant at a California location.
Please read carefully both Corporations Code section 2105 and Penal Code section 1524.2 if seeking such a search warrant. A sample description for a warrant for computer services records is found in Chapter III, Section O. Sample descriptions for a warrant for telephone records are found in Chapter III, Section H.
O. Crime Scene Searches
The cases of Flippo v. West Virginia (1999) 528 U.S. 11, Mincey v. Arizona (1978) 437 U.S. 385, and Michigan v. Tyler (1978) 436 U.S. 499, require the use of search warrants to conduct a search at the scene of a crime unless consent or exigent circumstances can be shown. Mincey involved a homicide which was committed at the suspect’s residence and Tyler involved the arson of the suspect’s furniture store. The necessity for such warrants and their manner of preparation are discussed further in Chapter IV, Section J. The description of the premises to be searched, however, follows the same principles set forth in this chapter. A special form for such warrants, “Statement of Probable Cause -- Crime Scene Search Warrant,” appears at the end of Chapter IV.
P. Severability
In the event a search warrant is issued for the search of more than one location, and a reviewing court rules that probable cause did not exist for the search of one of the listed locations, that ruling will not invalidate the search of the other locations for which probable cause to search did exist. (People v. Joubert (1983) 140 Cal.App.3d 946.)
Q. “Good Faith” Exception -- Descriptions
Even if the description of the premises to be searched is improper in some respect, the items seized pursuant to the search will not necessarily be suppressed. The courts have held that minor clerical errors in descriptions do not necessarily invalidate a search warrant. (See Chapter XI,
II-12 Section N.) Further, the “good faith” exception to the application of the exclusionary rule to search warrants (See Chapter XI, Section J) has been held to apply to defective descriptions. In the case of People v. MacAvoy (1984) 162 Cal.App.3d 746, officers obtained a search warrant for a fraternity house. The Court of Appeal held that the warrant description was overbroad and, therefore, invalid in that it did not limit the description of the premises to be searched to just the defendant’s room within the fraternity house when probable cause existed only for the search of that room. Nevertheless, the Court of Appeal also held that although this overbroad description invalidated the search warrant, the officers displayed good faith in serving the warrant since they searched only the defendant’s room. Thus, under the good faith exception set forth in the Leon and Sheppard cases (See Chapter XI, Section J), the items seized were not suppressed. (See People v. MacAvoy 162 Cal.App.3d at pp. 763-765.)
Regarding the presumption of good faith, please note that MacAvoy specifically states, “there is a presumption that officers are conducting a search with good faith belief in its validity when the search is conducted pursuant to a warrant.” (MacAvoy, supra, at page 763.)
Naturally, every effort should be made to ensure that descriptions are correct and not overbroad when the warrant is written.
II-13 CHAPTER III
DESCRIBING THE PROPERTY AND PERSON(S) TO BE SEIZED
A. Introduction
The warrant clause of the Fourth Amendment expressly provides that no warrant may issue except those “particularly describing the place to be searched, and the person or things to be seized.” (U.S. Constitution, Fourth Amendment.) Penal Code Section 1529 also states that the property to be seized must be described with “reasonable particularity.” What is “reasonable particularity?” A good test of “reasonable particularity” is whether or not an officer with no knowledge of the facts underlying the warrant and looking only at the description of the property on the face of the warrant would be able to recognize and select the items described while conducting the search. For example, an officer with no knowledge of a particular case would be able to recognize and seize a “Smith & Wesson .38 caliber revolver, serial No. 18-205”, if it were listed on the warrant. However, an officer executing a warrant describing the items sought only as “stolen property” would not know what to seize unless he was familiar with the facts underlying the warrant. Since search warrants are directed to “any peace officer,” the description of the property sought must be clear and specific enough for any officer serving the warrant to recognize and select the items described. It will not be presumed that officers serving the warrant have knowledge of the case.
Descriptions should be as specific and complete as possible. Model numbers and serial numbers should be included, if known. Warrants which fail to describe property with reasonable particularity are considered “general exploratory warrants” and are forbidden by both the United States and California Constitutions. General warrants are invalid and any items seized during their execution are subject to suppression. (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249-250.)
Descriptions which have been held to be “general” and thus invalid include, “All stolen property” -- Lockridge v. Superior Court (1969) 275 Cal.App.2d 612, 625-626, and Thompson v. Superior Court (1977) 70 Cal.App.3d 101; “All books, records, accounts and bank statements and canceled checks of the receipt and disbursement of money” (if listed without regard to the persons with whom the transactions had occurred or the dates of the transactions) -- Burrows v. Superior Court (1974) 13 Cal.3d 238 at pages 249-250; “Property used to commit an attempted grand theft” -- People v. Mayen (1922) 188 Cal. 237, 242; and “Television sets, power tools, appliances, hand tools, home furniture, clothing, power drill press” -- People v. Murray (1978) 77 Cal.App.3d 305, 308.
Descriptions must “place a meaningful restriction on the objects to be seized.” (People v. Murray, 77 Cal.App.3d at page 309.) See People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69, 77, for a complete discussion of cases approving and disapproving certain descriptions, and see People v. Remiro (1979) 89 Cal.App.3d 809, 832, which held that “revolutionary materials” was an adequate description.
III-1 “Specificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” (People v. Ulloa (2002) 101 Cal.App.4th 1000, 1005.)
However, the California Supreme Court has stated that “[I]n a complex case resting upon the piecing together of ‘many bits of evidence,’ the warrant properly may be more generalized than would be the case in a more simplified case resting upon more direct evidence.” (People v. Farley (2009) 46 Cal.4th 1053, 1101; People v. Carpenter (1999) 21 Cal.4th 1016, 1043; People v. Bradford (1997) 15 Cal.4th 1229, 1291, quoting Andresen v. Maryland (1976) 427 U.S. 463, 481, fn 10.)
In People v. Kraft (2000) 23 Cal.4th 978, 1043, the Court stated, “[T]he warrant was indeed broad in scope, but such breadth was the inevitable result of a murder investigation involving multiple suspected victims. We conclude the breadth of the warrant in this case was commensurate with the scope of the investigation.”
It is important for the affiant to list and describe every item for which probable cause to search exists, including evidentiary items. For example, if a particular suspect is reasonably believed to have committed an armed robbery of a liquor store, it is proper to obtain a search warrant for his residence, getaway car, and person for the fruits, evidence and instrumentalities of that crime. Such a listing of items typically might include the following:
. . . a dark colored metal revolver, ammunition, U.S. currency consisting of approximately 2-$50’s, 30-$20’s, 10-$10’s, 20-$5’s and 25-$1’s, checks made out to the Blue Fly Liquor Store, a number 8 brown paper bag, a red ski mask, men’s tan pants, a red checked Pendleton style man’s shirt . . .
However, it would be improper to list and search for items which the affiant merely hopes he might find. Thus, in the above example, it would be improper to list and search for gasoline credit card receipts showing that the suspect purchased gas in the vicinity of the liquor store on the day of the robbery, unless there was probable cause to believe such a gasoline purchase had been made, in which case such a receipt would be seizable since it would constitute evidence which “tends to show that a particular person has committed a felony.” (Penal Code section 1524, subd. (a)(4).) However, the mere hope that such a gasoline credit card receipt might exist, as opposed to probable cause to believe it does exist, does not justify listing it on the warrant. Similarly, it would be improper to list and search for a diagram showing the layout of the liquor store or a diary recounting the robbery unless there was probable cause to believe such items would be found as opposed to a mere hope that they might be found.
This is not to say that diagrams and diaries can never be properly listed, searched for and seized. For example, if a particular suspect is known from prior occasions to prepare diagrams or maintain a crime diary, such items could properly be listed. Or if the nature of the crime was such as to lead to a reasonable belief a diagram might exist, such as an elaborately staged robbery of an armored car depot, then the listing of a diagram of the crime scene as an item to be seized would be proper.
III-2
The case of People v. Frank (1985) 38 Cal.3d 711, stresses that the items to be seized should be described with particularity and that probable cause must be shown in the affidavit for each of the listed items. (Frank at pp. 726-728.)
The use of a search warrant to seize a person for whom a warrant of arrest has been issued is discussed in Chapter I, Section F.
B. Controlled Substances
The description should specify the type of controlled substance to be seized, such as heroin, cocaine, marijuana, amphetamines, etc. The use of the general terms “controlled substances,” “narcotics,” or “dangerous drugs,” without further description might be held by a reviewing court to be too indefinite, inasmuch as there are many types of controlled substances, narcotics, and dangerous drugs.4
The description of items to be seized should also include paraphernalia that is commonly associated with the sale, storage, possession, and use of the controlled substance.
. . . heroin and paraphernalia related to the use and sale of heroin, including hypodermic syringes, hypodermic needles, eye droppers, spoons, cotton, milk sugar, scales and other weighing devices, balloons, condoms, paper bindles, and measuring devices.5
The affidavit should contain the opinion of a narcotics expert (usually the officer-affiant) that such paraphernalia will be found on the premises. Case law has held that where drugs are possessed for use or sale, it is reasonable to infer that paraphernalia for their use or sale will also be present. (People v. Senkir (1972) 26 Cal.App.3d 411, 420.) This opinion may be expressed as follows:
Your affiant states the paraphernalia listed as items to be seized in this warrant are articles that are commonly found in places where [insert type of narcotic] is being sold.
Ledger buyer lists, sellers’ lists and recordations of distribution and sales of drugs may also be seized. (People v. Harvey (1991) 233 Cal.App.3d 1206.)
Finally, the warrant should include the seizure of articles that tend to identify the persons in control of the controlled substances and paraphernalia seized. This is known as “dominion and
4However, People v. Walker (1967) 250 Cal.App.2d 214, 220, held the term “dangerous drugs” was not too broad.
5Other narcotic paraphernalia not specifically mentioned can nonetheless be seized, since the enumerated items are deemed illustrative, not restrictive of the designation “narcotics paraphernalia.” (See People v. Daily (1958) 157 Cal.App.2d 649. See also Chapter X, Section I, concerning the seizure of items not described in the warrant.)
III-3 control” evidence. Such items are seizable pursuant to Penal Code section 1524, subd. (a)(4), in that by connecting a suspect to a location where illegal drugs are found, the recovered article(s) of identification “tends to show that a particular person has committed a felony.” (People v. Nicolaus (1991) 54 Cal.3d 551, 575; People v. Rogers (1986) 187 Cal.App.3d 1001, 1008; People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
. . . articles of property6 tending to establish the identity of persons in control of premises, vehicles, storage areas, and containers being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, and keys.
In the example above, “computers and the electronic files contained within” are included pursuant to the holding in People v. Balint (2006) 138 Cal.App.4th 200 that a laptop computer logically could serve as a container for information tending to show occupancy and control of the premises. The case of People v. Varghese (2008) 162 Cal.App.4th 1084 also held that officers serving a search warrant may seize and access computers in the suspect’s car and residence as “dominion and control evidence.
The cases of People v. Goodall (1982) 131 Cal.App.3d 129 and People v. Williams (1992) 3 Cal.App.4th 1535, 1542-1543, hold that documents bearing a defendant’s name found within a premise are admissible as circumstantial evidence that a person with the defendant’s name resides within that premises.
Following are examples of descriptions of property to be seized in search warrants involving controlled substances. These examples are intended only as guidelines and should be modified as appropriate to the facts of the particular case.
1. Cocaine Dealer
. . . cocaine; narcotic paraphernalia, including scales and other weighing devices, measuring devices, and containers of various types commonly associated with the sale and possession of cocaine, including paper bindles, glass vials, plastic baggies, foils, sifters, filters, screens, and cutting agents; articles of personal property tending to establish and document sales of cocaine, including U.S. currency, buyer lists, seller lists, and recordations of sales; articles of personal property tending to establish the existence of a conspiracy to sell cocaine, including personal telephone books, address books, telephone bills, papers and documents containing lists of names; and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, storage areas, and containers being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes and keys.
6See People v. Howard (1976) 55 Cal.App.3d 373, 376-377, which permitted the seizure of money as an “article of personal property” where the warrant did not mention “currency.”
III-4 2. Heroin Dealer
. . . heroin; paraphernalia related to the use and sale of heroin, including hypodermic needles, hypodermic syringes, eye droppers, spoons, cotton, milk sugar, scales and other weighing devices, balloons, condoms, paper bindles, measuring devices; articles tending to establish and document sales of heroin, including U.S. currency, buyer lists, seller lists, and recordations of sales; articles of personal property tending to establish the existence of a conspiracy to sell heroin, including personal telephone books, address books, telephone bills, papers and documents containing lists of names; and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, storage areas, and containers being searched including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, and keys.
3. Marijuana
. . . marijuana; paraphernalia commonly associated with the storage and use of marijuana, including pipes, sifters, alligator clips, baggies, scales and other weighing devices; and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, storage areas, and containers being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, and keys.
4. Methamphetamine Dealer
. . . methamphetamine; paraphernalia commonly associated with the packaging, storage, sale, and use of methamphetamine, including scales, weighing devices, and measuring devices, packaging materials including paper bindles, glass vials, and plastic baggies, foils, sifters, filters, screens and cutting agents; articles of personal property tending to establish and document sales of methamphetamine including U.S. currency, foreign currency, negotiable instruments, buyers lists, seller lists, and recordations of sales, however recorded or memorialized; articles of personal property tending to establish the existence of a conspiracy to sell methamphetamine, including personal telephone books, ledgers, address books, telephone bills, and other papers and documents containing lists of names, however recorded or memorialized; articles of personal property tending to establish the identity of persons in control of premises, vehicles, storage areas and containers being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, photographs, and keys.
5. Methamphetamine Laboratory
. . . methamphetamine and precursors and derivatives of same; chemicals used in the manufacture of methamphetamine, including ephedrine, pseudo-ephedrine, red phosphorus, iodine, Freon and hydriodic acid; laboratory equipment and apparatus including glassware, hoses, clamps, tubes, and beakers; paraphernalia used in the preparation, manufacture, use, distribution and packaging of methamphetamine,
III-5 including measuring and weighing devices, diluting agents, and baggies and other containers commonly used for the packaging of dangerous drugs; books, papers, and documents containing printed or written chemical formula and manufacturing instructions relating to the drugs and chemicals listed above; and articles of personal property tending to establish the origins of the above-described contraband and paraphernalia, including bills, receipts, ledgers, maps, and charts; and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, storage areas and containers being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, and keys. [This description may be adapted to labs for other controlled substances.]
C. Bookmaking
In a search warrant for the seizure of bookmaking paraphernalia, the description may contain all or some of the following articles, depending in large part on the information contained in the affidavit:
. . . bookmaking paraphernalia, including betting markers (records of bets made); owe sheets (records of money owed on bets); tip sheets; recordations of bettors and bets; betting tabulations; account books and ledgers; customer lists; codes of bettors, agents and other bookmakers; telephone numbers, identification and addresses of agents, runners, clerks, bettors, and informants; telephones; telephone numbers and addresses of back rooms and front offices and betting parlors; line sheets and betting line records; devices for recording wagers, including blackboards, flash papers, Formica and pieces thereof; sporting publications, including the National Daily Reporter, Daily Racing Form, J.K.’s Sports Journal, and J.K.’s Baseball Journal; monies received from bookmaking activities and used for bookmaking payoffs; and other bookmaking paraphernalia used for the purpose of recording or registering bets upon (race horses) (baseball games) etc.
The affidavit should contain the opinion of a bookmaking expert, who may be the affiant, that such paraphernalia will be found on the premises.
Your affiant states that the articles of bookmaking paraphernalia listed above in this affidavit are in fact bookmaking paraphernalia, are items commonly associated with illegal bookmaking activity, and are commonly found upon premises where bookmaking is conducted.
This warrant should also include the seizure of articles that tend to identify the persons in control of the places being searched.
. . . and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, and areas being searched, including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes, and keys.
III-6 D. Telephone Calls
Valuable and relevant evidence may often be obtained by answering a suspect’s telephone and conversing with the caller during a search. People v. Warner (1969) 270 Cal.App.2d 900, 907, states, “In a bookmaking case, evidence of a telephone conversation between an arresting officer and a person calling the suspected premises has been uniformly held to be admissible to show the purpose for which the premises are used.” Similarly, in People v. Nealy (1991) 228 Cal.App.3d 447, 452, the court held, “when a police officer participates in a telephone conversation where he is lawfully executing a search warrant and hears a third person offer to purchase a controlled substance, testimony thereon is not made inadmissible by the hearsay rule and may be received as circumstantial evidence tending to show the controlled substance seized at the location was possessed for purposes of sale.” See also People v. Morgan (2005) 125 Cal.App.4th 935, which holds the same. Therefore, officers having probable cause to believe the telephone at a location is being used for illegal purposes may answer incoming phone calls even though the warrant does not include “phone calls” among the items to be seized.
It is recommended that officers wishing to answer the phone during the execution of a search warrant specifically request such authority in the warrant.
Establishing probable cause for seizing “phone calls” is discussed in Chapter IV, Section L -- “Justification for Answering the Telephone.”
It is unlikely that a search warrant will be for phone calls only. Usually, the phone call evidence will be sought in addition to other described items. Language describing phone calls as an item to be seized might be as follows:
1. In Affidavit or in Statement of Probable Cause
. . . and all incoming telephone calls (searching officers request authorization to answer the phone and converse with callers who appear to be calling in regard to [state nature of crime] and note and record the conversation without revealing their true identity).
2. In Warrant and in Combined Warrant/Affidavit Form
. . . and all incoming telephone calls (searching officers are authorized to answer the phone and converse with callers who appear to be calling in regard to [state nature of crime] and note and record the conversation without revealing their true identity).
In People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163, 167, officers armed with a search warrant discovered evidence in the suspect’s home which gave them reasonable grounds to believe the suspect was selling drugs from that home. The court held that this justified officers answering incoming phone calls even though the warrant did not list incoming phone calls and even though the officers were unaware of the drug sales until after they began their search. The court held the discovery of a large amount of cocaine
III-7 and $10,000 was enough to render incoming calls suspect and to justify answering those calls. See also People v. Drieslein (1985) 170 Cal.App.3d 591, 600-601 and People v. Morgan (2005) 125 Cal.App.4th 935, which hold the same.
In People v. Harwood (1977) 74 Cal.App.3d 460, 465, the court held that officers searching pursuant to consent cannot answer the phone unless they receive consent specifically to answer the phone as well.
E. Stolen Property
The description should specify the stolen property involved. Merely stating that “stolen property” is being sought will make the search warrant fatally defective as a general exploratory warrant. (Lockridge v. Superior Court (1969) 275 Cal.App.2d 612, 625-26; Thompson v. Superior Court (1977) 70 Cal.App.3d 101; People v. Tockgo (1983) 145 Cal.App.3d 635.)
Whenever possible, the description should include the type, make or manufacturer of the stolen item, serial number, size, color, height, weight, shape, etc.
. . . one Sony brand, 42-inch color television set, gloss black finish, bearing serial number NG2828 4600.
. . . one .32 caliber, Smith & Wesson revolver, bearing serial number RJC 6519.
. . . Synertek “2716” integrated circuits, further described as rectangular objects approximately 1-1/4 by 3/4-inch, having 24 gold-colored pins extending downward from the face and having on the face a gold-colored, square plate with transparent insert in the center through which a small silver-colored object is visible, and further bearing the word “Singapore” and the number “2041.” (See People v. Lowery (1983) 145 Cal.App.3d 902, for additional descriptions of computer parts.)
If the list of the stolen items is extensive, a copy of a crime report containing an inventory of the stolen property can be attached.
. . . the items of personal property designated Item No. 1 through Item No. 25 on the three page Stolen Property Report bearing DR. No. 10-5431 attached hereto and incorporated as Exhibit No. 1.
If an item of stolen property cannot be adequately described, a photograph or drawing of the item can be attached.
. . . a gold ring with a four-carat diamond in the center, surrounded by three-leaf clusters of smaller diamonds, as shown on the hand of the woman in the photograph attached hereto and incorporated as Exhibit No. 1.
Crime victims may assist the police in the execution of a valid search warrant. In the case of People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, the California Supreme Court held that
III-8 it is permissible for a crime victim to accompany officers during the execution of a search warrant and point out stolen items for the officers to seize. However, only peace officers may actually seize items.
F. Property Used to Commit Felony; Property Tending to Identify Perpetrator
In most cases, the descriptions of items used by a person to commit a crime or items which may identify him or her as the perpetrator of a crime will not be exact since it is unlikely that victims and witnesses will have gotten more than a brief look at the items. Nevertheless, it may still be possible to describe the items sought with “reasonable particularity.”
Naturally, each case will depend upon its own facts. In some cases the item sought might not have been seen at all, but their existence can be inferred from the manner in which the crime was committed. For example, a garage burglar who is cutting padlocks in order to make entry can reasonably be inferred to have bolt cutters. And “bolt cutters” is probably a sufficient description of an item sought without specifying size, make or model.
A typical description for items being sought at the residence of a person suspected of committing an armed robbery in which money only was taken and observation by witnesses and victims were sketchy might be as follows:
. . . a handgun; handgun ammunition; handgun cleaning kit; containers and receipts for the aforementioned items; approximately $200 United States currency consisting of approximately 5-$20’s, 5-$10’s, and the remainder in $1 bills; a man’s dark blue shirt and dark pants . . .
A search warrant for the seizure of a known firearm used in a crime should list only the gun used in the crime and articles related to the described gun, rather than listing the seizure of “all firearms.” Millender v. County of Los Angeles (9th Cir. 2009) 584 F.3d 1143.
A typical description of items sought at the residence of a person reasonably suspected of stabbing and robbing his victim might be as follows:
. . . bloodstained clothing including Levi pants and a man’s green shirt; a bloodstained knife; bloodstained towels, wash cloths, and paper towels; a man’s brown wallet; papers, credit cards, driver’s license and other personal papers bearing the name Frederick Cook; and . . .
In the case of People v. Schilling (1987) 188 Cal.App.3d 1021, facts establishing probable cause to believe the defendant shot and killed the victim in the defendant’s own residence were set forth in a supporting affidavit for a search warrant for that residence. The list of items to be seized included the phrase, “scientific evidence, including fingerprints, powder burns, blood, blood spatters, photographs, measurements, bullet holes, hairs, fibers.” The Court of Appeal held this description was legally sufficient and concluded, “The facts known by [affiant] and communicated by affidavit to the issuing magistrate clearly gave rise to a reasonable belief that defendant may have shot Houston in his residence. There was therefore a reasonable basis for
III-9 believing that scientific evidence confirming Houston’s presence and death in defendant’s residence could be found on the premises.” (Schilling, supra, at page 1031.)
It is proper to list and search for the clothing witnesses observed the suspect wearing at the time of the commission of a crime since such clothing, if later discovered on the suspect’s person or within his residence, is evidence which tends to prove his identity as the perpetrator of the crime. Obviously if a suspect wearing a “Calgary Stampede -- 2008” t-shirt commits a robbery and that shirt is found two days later in a search of his house, such evidence will be valuable in court to prove his identity as the robber. Thus, such an item is seizable pursuant to Penal Code section 1524, subd. (a)(4), as evidence which “tends to show that a particular person has committed a felony.”
Similarly, “articles of personal property tending to establish the identity of the person in control of the premises, vehicles, and areas being searched” are lawfully seizable. This is because the probable cause to believe that the fruits, evidence and instrumentalities of a crime are within a particular premises implicitly means that whoever is in control of those premises has some knowledge of the items and was involved in the criminal activity which resulted in those items being at that location. Thus, if the “Calgary Stampede -- 2008” t-shirt is believed to be at a certain premises, whoever is in control of those premises is probably involved in the crime in which that t-shirt was observed on the perpetrator. This probability is even stronger if the criminal activity actually takes place on those premises such as narcotics sales, receiving stolen property, or bookmaking. In such cases, “computers and the electronic files contained within, utility company receipts, rent receipts, and addressed envelopes” bearing the name or information that will connect a person with the items found at that location and the criminal activity thereon. Similarly, keys found in the pocket of a person named on a search warrant are important evidence if they fit the door lock of the house or apartment where heroin or other evidence of a crime is found. The case of People v. Rogers (1986) 187 Cal.App.3d 1001, 1008, specifically approves the listing of such items. The case of People v. Rushing (1989) 209 Cal.App.3d 618, 622, specifically held that papers bearing defendant’s name and signature indicated his dominion and control over the apartment where the papers and cocaine were found.
G. Bank Records
The methods by which records can be seized or otherwise obtained from financial institutions are set forth, in detail, in the California Right to Financial Privacy Act, Government Code sections 7460 through 7493. A law enforcement officer must comply with the act to obtain bank records.
The starting point for obtaining records from a financial institution is contained in Government Code section 7480(e)(1). Government Code section 7480 provides in part as follows:
“Nothing in this chapter shall prohibit any of the following…(e)(1). The Attorney General,…a police or sheriff’s department or district attorney…from requesting of an office or branch of a financial institution, and the office or branch from responding to a request, as to whether a person has an account or accounts at the office or branch and, if so, any identifying numbers of the account or accounts.”
III-10 This subsection allows a financial institution to voluntarily provide to law enforcement information limited to the name of the account holder(s) and the account number(s). It does not permit the financial institution to voluntarily provide any additional information such as the account activity. The California Attorney General has found that this subsection is legally valid since an account holder does not have a reasonable expectation of privacy in account names and numbers. (65 Opinions of the California Attorney General 4 - 1/17/82).
Government Code section 7480(e)(1) does not compel the financial institution to provide account names and account numbers to the requesting law enforcement agency. The financial institution can voluntarily provide this information or refuse to do so, in its discretion.
If the account names and numbers are not voluntarily provided by the financial institution, or if the investigating agency is seeking more detailed information, there are six methods described in The California Right to Financial Privacy Act by which financial records can be obtained. They are as follows:
1. Customer Authorization
Financial records may be obtained and examined pursuant to the authorization of the customer as set forth in Government Code section 7473. Such authorization must be in writing and must identify very specifically the records to be examined. Also, the written authorization must contain a phrase within it informing the customer he has a right to withdraw his authorization. See Government Code section 7473 for additional requirements related to customer authorized examination of records. A suggested “Consent to Release Bank Records” form appears at the end of this chapter.
2. Administrative Subpoena or Summons
Financial records may be obtained and examined pursuant to an administrative subpoena or summons. Requirements relating to the use of administrative subpoenas are set forth in detail in Government Code section 7474. Among the many requirements of the section is one stating that a copy of the administrative subpoena must be served upon the customer as well as the financial institution. The copy must include the name of the agency or department serving the subpoena and the statutory purpose for which the information is to be obtained. The customer then has 10 days to give notice to the financial institution that the customer has moved to quash the subpoena.
3. Search Warrant
Financial records may be obtained pursuant to a search warrant pursuant to Government Code section 7475. Such a warrant should be written following the general principles set forth in this manual. Note, however, that Government Code section 7475 sets forth additional conditions regarding search warrants for financial records. For example, the financial institution will notify the customer of the service of the warrant unless a court orders the financial institution to withhold notification to the customer upon a finding that such notice would impede the investigation. Also, the normal ten-day period for
III-11 service and return of the warrant can be extended if the bank cannot reasonably make the records available within ten days. However, the officer serving the warrant has the right to examine the records sought at the time of the service of the search warrant. See Government Code section 7475 for additional details. A court order to withhold notification can appear on the face of the warrant.
Example
A sample description of the financial institution and of the items to be seized pursuant to a search warrant for bank records might be phrased as follows:
Gotham City Bank Branch Number 33 1000 Main Street Gotham City, California
FOR THE FOLLOWING PROPERTY:
All open or closed account documents connected with Gotham City Bank account number 33-101 and 33-102 or any other account in the name of Cesar Romero from (date) to the present including the following:
a. Original or certified copy of any signature cards, powers of attorney, or applications for said accounts. b. Copies of all checks, money orders, cashiers checks, and other items, both front and back, deposited into said accounts. c. Copies of all deposit slips reflecting deposits into said accounts. d. Copies of all checks, money orders, cashiers checks and other documents, both front and back, drawn on said accounts. e. Copies of all financial statements, including monthly statements, issued for said accounts or related accounts. f. Copies of any records pertaining to the identification of persons using said accounts, including photographs, driver’s license numbers, or other means of identification. g. Copies of all documents showing transfers, including wire transfers, ATM transfers or withdrawals to or from said accounts or any other accounts in the name of Cesar Romero. h. Any records concerning the use of any safe deposit boxes in relation to said accounts.
An order for nondisclosure can be phrased as follows:
ORDER FOR NON DISCLOSURE OF SEARCH WARRANT
It is hereby ordered that no officer, agent or employee of Gotham City Bank reveal the existence of this search warrant, or any action or compliance taken pursuant to
III-12 this search warrant, to any person or entity except as reasonably necessary to comply with this search warrant. In no event shall the existence of this search warrant be revealed to the person(s) or entity/entities on whose account information is being sought.
DATED: ______Judge of the Superior Court
A search warrant for bank records was held valid in People v. Meyer (1986) 183 Cal.App.3d 1150.
4. Judicial Subpoena or Subpoena Duces Tecum
The requirements for a judicial subpoena are set forth in Government Code section 7476. This section also discusses obtaining financial records for grand jury proceedings. Again, notice must be given to the customer in most situations. The customer then has ten days to give notice to the financial institution that the customer has moved to quash the subpoena. Special conditions relating to the use of subpoena duces tecum in the prosecution of insufficient funds check cases (Penal Code Section 476a) are set forth in Government Code section 7476 subd. (c). The entire section must be studied carefully before seeking a subpoena for financial records.
5. Police Request
Government Code section 7480 subd. (b) provides that a police or sheriff’s department or district attorney may obtain certain financial information upon request made to the financial institution when it certifies in writing that a crime report has been filed alleging certain fraudulent acts. For example, information relating to dishonored checks and overdrafts may be obtained upon certification to the financial institution, in writing, that the checks were used fraudulently. The bank will then provide a statement of account and other records for a period of time 30 days prior to and 30 days following the alleged illegal acts. A sample written request appears at the end of this chapter.
6. Victimized Financial Institution
A bank may, in its discretion, lawfully turn over a customer’s bank records to the police if the bank believes it is a victim of a crime committed by the customer such as a customer’s use of a bank-issued credit card after having reported it stolen. (See People v. Nosler (1984) 151 Cal.App.3d 125; People v. Nece (1984) 160 Cal.App.3d 285; and California Government Code section 7470 subd. (d).)
The California Right to Financial Privacy Act, Government Code sections 7460-7493, must be studied carefully before attempting to get financial records. See also Burrows v. Superior Court (1974) 13 Cal.3d 238 and People v. Blair (1979) 25 Cal.3d 640, regarding constitutional limitations upon the seizure of financial records.
III-13 H. Credit Balance in Bank Accounts
Certain types of criminal activity can generate large amounts of illegally obtained proceeds. This is especially true in the trafficking of narcotics. A goal of the narcotics investigator should be not just to seize narcotics, but also to seize the proceeds derived from the sales of narcotics. The seizure of the proceeds derived from criminal activity eliminates the profit motive and can help in dismantling the criminal enterprise.
Sometimes an individual maintains large amounts of the proceeds derived from criminal activity in bank accounts. If an investigator can locate and identify these accounts, an amount of money equal to the credit balance in these accounts can then be seized and forfeited pursuant to applicable forfeiture statutes.
The seizure of money from bank accounts is a two-step process, and both steps can involve the use of search warrants. First, the suspect’s bank account(s) must be identified. This is normally done by obtaining records from the bank or other financial institution (i.e., credit union, savings and loan) that identify the account holder and the account number of the suspect. The methods by which financial records can be obtained are discussed in Section G of this chapter. Second, after the account has been identified, the money in the account can be seized.
A search warrant is a proper method for seizing money held in a bank account. Penal Code section 1523 defines search warrants and states in part that it “is an order in writing…directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property…” (emphasis added). Further, Penal Code section 1524 states that a search warrant may be issued upon various grounds, including “when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.”
Possession of proceeds from narcotics trafficking not only subjects the proceeds to forfeiture under Health and Safety Code section 11470, but it also “tends to show a felony has been committed” pursuant to Penal Code section 1524. Such a felony could be the sale, possession for sale, or transportation of narcotics, but it also includes the possession of narcotics proceeds in excess o $100,000 (Health and Safety Code section 11370.6) or in excess of $25,000 (Health and Safety Code section 11370.9).
Penal Code sections 1523 and 1524 indicate that the property subject to seizure pursuant to a search warrant is very broad and should include money in a bank account. Indeed, case law authorizes a search warrant for such “things” as for the installation of a pen register (People v. Larkin (1987) 194 Cal.App.3d 650), for evidence of crime that will be located in a specified place at a future time (United States v. Grubbs (2006) 547 U.S. 90), and for the use of a thermal imaging device to detect heating conditions inside a residence (Kyllo v. United States (2001) 533 U.S. 27). Further, the Fourth Amendment has language regarding “the person or things to be seized”, indicating that a search warrant is in the nature of a seizure order.
Once property has been seized pursuant to a search warrant, the court retains control over the disposition of the property. Penal Code section 1536 states in relevant part that “All property or
III-14 things taken on a warrant must be retained by the officer in his custody, subject to the order of the court…” Law enforcement officers seizing property pursuant to a warrant issued by the court do so on behalf of the court, which has authority pursuant to Penal Code section 1536 to control the disposition of the property. This authority also arises from the court’s inherent power to control and prevent the abuse of its process. Thus, even in the absence of statutory authorization, the superior court possesses the inherent power to conduct proceedings and issue orders regarding property seized from a criminal suspect pursuant to a warrant issued by the court. People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713.
Example
A sample description in a search warrant of the financial institution for the seizure of money in a bank account might be phrased as follows:
Gotham City Bank Branch Number 33 1000 Main Street Gotham City, California
FOR THE FOLLOWING PROPERTY:
The amount of money on deposit in Account No. 277-4653, in the name of Cesar Romero.
I. Phone Records
The California Supreme Court has held a search warrant is necessary to obtain from the telephone company the name and address of the holder of an unlisted telephone number. (See People v. Chapman (1984) 36 Cal.3d 98.) Similarly, People v. McKunes (1975) 51 Cal.App.3d 487, held that an individual’s telephone company records relating to telephone calls made are protected by a reasonable expectation of privacy and cannot be obtained by police except by search warrant or other judicial order. Telephone records can be described in the warrant as follows:
1. Unlisted Service
. . . telephone records relating to telephone number (555) 555-1234 showing the name and any identifying information regarding the person to whom that telephone number is registered and the address and location of the telephone to which that number is registered.
The affidavit must contain facts, information and opinion justifying the belief that such unlisted telephone subscriber records are lawfully seizable. For example, if it can be shown that bets may be placed or narcotics ordered by calling that telephone number, a search warrant may be obtained to find the identity of the phone subscriber and location of the phone. Indeed, any criminal activity in which a particular phone number plays a
III-15 part may justify a search warrant for the name of the subscriber and location of the phone.
2. Telephone Records
. . . all telephone company records, including billing statements, telephone service records, customer service records, telephone toll records and bill file records for the following:
Persons(s): Adam J. Sample; Telephone Number(s): (555) 555-1234, including any other telephone records as described above billed to telephones at the following location(s), [insert locations], for the billing rounds which include the period of (month/year) to (month/year).
Note: Telephone toll records are maintained in “billing rounds.” Each billing round encompasses approximately 30 days but does not necessarily follow the calendar month.
The affidavit should contain facts, information, and opinion justifying the time period for which the toll call records are sought.
Pursuant to California Public Utilities Commission decision No. 93361, dated July 21, 1981, the telephone company must notify the customer of the search warrant for his telephone records unless there is a “certification for non-disclosure” contained on the face of the search warrant. Such a certification will delay notification to the customer for a period of 90 days and can be extended an additional 90 days.
A “certification for non-disclosure” is a statement that notification to the subscriber be withheld because notification would impede the investigation of the offense regarding which the warrant was issued.
3. Certification for Non-Disclosure
. . . Pursuant to an official criminal investigation of a suspected felony being conducted by [insert law enforcement agency], it is ordered that your company furnish on presentation of this Search Warrant telephone records as described elsewhere in the Search Warrant.
The telephone records described in this warrant are being sought pursuant to an official criminal investigation being conducted by [insert law enforcement agency]. There is probable cause to believe that disclosure of this search warrant would impede the investigation being conducted. It is hereby ordered that [insert name of telephone company] defer notification to the subscriber of the request for these telephone records for a period of 90 days.
III-16 This language must appear on the search warrant following the listing of the property to be seized, and justification for the deferral of notification must be set forth in the affidavit.
An extension of the initial deferral can be obtained for another 90 days if the person who procured the issuance of the warrant, or another authorized member of the police agency certifies in writing that there is probable cause to believe notification to the subscriber would impede the investigation and sends such certification to the telephone company.
4. Out-of-State Telephone Companies
Penal Code section 1524.2 provides a means of obtaining telephone records that are in the actual or constructive possession of a foreign corporation that provides electronic communication to the general public. This section provides for the issuance of search warrants “for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication service . . . to the general public . . .” This section further provides that the corporation shall have five business days to produce the records, although the issuing court can require production of the records in less than five days if special justification can be shown.
Corporations Code section 2105 now requires that all foreign corporations doing business in California file a statement with the California Secretary of State listing the name of an agent within the state upon whom search warrants issued pursuant to Penal Code section 1524.2 can be served even though the actual records are located out of state. The name and address of such agent can be obtained by contacting the Secretary of State. See Chapter II, Section N, for the procedure to be followed in obtaining such a search warrant.
J. Dominion and Control Evidence
As noted previously in B., Controlled Substances, above, it is permissible for officers to list and seek dominion and control evidence in obtaining and serving a search warrant. This typically includes computers and the electronic files contained within, utility company receipts, bills, rent receipts, letters, addressed envelopes, and keys. Such evidence is relevant to show defendant’s occupancy of the premises searched and his or her control over any evidence seized there from. (People v. Rushing (1989) 209 Cal.App.3d 618.) Officers may open folders and briefly peruse documents therein seeking such dominion and control evidence. (People v. Nicolaus (1991) 54 Cal.3d 551, 575.)
In People v. Balint (2006) 138 Cal.App.4th 200, police officers seized a laptop computer pursuant to a clause in the search warrant authorizing seizure of “any items tending to show dominion and control of the location . . .” The Court of Appeal held that the computer was properly seized under this “dominion and control evidence” clause:
[W]e conclude the open laptop computer at issue here amounts to an electronic container capable of storing data similar in kind to the documents stored in an ordinary filing
III-17 cabinet, and thus potentially within the scope of the warrant. We perceive no reasonable basis to distinguish between records stored electronically on the laptop and documents placed in a filing cabinet or information stored in a microcassette. (Citations.) (People v. Balint, supra, at page 209.)
The case of People v. Varghese (2008) 162 Cal.App.4th 1084 also held that officers serving a search warrant may seize and access computers in the suspect’s car and residence as “ dominion and control” evidence.
The case of People v. Williams (1992) 3 Cal.App.4th 1535, specifically held that documents bearing a defendant’s name found within a premises are circumstantial evidence that a person with the defendant’s name resides within and has dominion and control of the premises. (At pp. 1542-1543.) See also People v. Goodall (1982) 131 Cal.App.3d 129, which holds the same.
K. “Peer Review” Medical Records
There is a split of authority whether records of a hospital “peer review” committee involving a doctor on the medical staff may be obtained pursuant to a search warrant or subpoena for use in criminal proceedings. People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363, held that such records were subject to discovery in a criminal trial. Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, involved peer review records sought pursuant to a subpoena; the Court of Appeal held that Evidence Code section 1157 precluded discovery of these records in a criminal proceeding.
L. Pen Registers and Trap-and-Trace Devices
As defined in Section 3127 of the Federal Electronic Communications Privacy Act, the term “pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or transmitted on the telephone line to which such device is attached. The term “trap-and-trace device” means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted. Thus, the installation of both a pen register and a trap-and-trace device allows law enforcement officers to determine telephone numbers being called from and to a particular telephone number.
The Federal Electronic Communications Privacy Act regulates the use of pen registers and trap- and-trace devices (18 U.S.C. Sections 3121-3126). Section 3122 expressly authorizes a state investigative or law enforcement officer to apply for an order, or an extension of an order, authorizing the installation and use of a pen register or a trap-and-trace device, in writing under oath, to a court of competent jurisdiction of the state. Section 3123 requires the applicant to justify that the information likely to be obtained is relevant to an ongoing criminal investigation (as opposed to probable cause required for a warrant). The order shall not exceed 60 days. Extensions may be granted, but only upon application, and may not exceed 60 days. The order shall direct that the order be sealed until otherwise directed by the court, and it shall direct the person owning the line or assisting in the installation not to disclose until further order of the court. An order for a pen register or trap-and-trace device may be issued by a state court of
III-18 “general criminal jurisdiction”; (Cal Const. Art. VI, Section 10), so a Superior Court judge can issue an order.
No California case has discussed the propriety of obtaining such an order. However, a California Attorney General Opinion, No. 03-406, has concluded that the federal statutes governing the installation of pen registers and trap-and-trace devices do not provide authority for issuance of a state court order permitting a state law enforcement officer to install or use pen registers or trap-and-trace devices. The rationale of the Opinion is that in California telephone call information is protected by a right of privacy so that such records may only be obtained by a law enforcement officer upon a showing of probable cause. In view of this Opinion, California state law enforcement officers should only use the federal statute if the court order includes a provision that the affidavit establishes probable cause.
A pen register and/or a trap-and-trace device may be installed if a search warrant has been obtained. (People v. Larkin (1987) 194 Cal.App.3d 650, 654.) In contrast to the procedure described above, the warrant is valid for only ten days pursuant to Penal Code section 1534, and the warrant must establish probable cause.
M. Credit Card Information
People v. Blair (1979) 25 Cal.3d 640, 652, holds that information regarding charges made by a credit card holder cannot be obtained by police except by search warrant or other judicial order. A search warrant should be prepared and served upon the credit card company describing specifically the items sought. Generally, any description of records sought should include some limit as to the time period for which the records are sought, e.g., May 2009 through August 2009. Note: A warrant in not necessary if the credit card company is a victim of illegal use of the card. (See People v. Nosler (1984) 151 Cal.App.3d 125, and People v. Nece (1984) 160 Cal.App.3d 285.)
N. Records
Business records and other records which contain evidence of criminal activity may be seized by a search warrant. Typically, such records are seized as “evidence which tends to show a felony has been committed, or tends to show that a particular person has committed a felony.” (Penal Code section 1524(a)(4).) The records must be described with some specificity as to the persons or entities named in them, the content of the records, the time period during which they were generated and any other factor which distinguishes them from being merely “records.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249-250.)
O. Computer Services Records Involving Foreign Corporation
Penal Code section 1524.2 provides for the issuance of a search warrant “for records that are in the actual or constructive possession of a foreign corporation that provides electronic communications services or remote computing services to the general public, where those records would reveal the identity of the customer using those services, data stored by, or on
III-19 behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications.”
Describing such items will depend upon the crime being investigated. However, in a case where someone is using a computer to send e-mail threats to a school, if the e-mail service provider can be determined, a search warrant can be directed to that e-mail service provider -- even if a foreign corporation (see Chapter II, section N) -- and the items sought might read as follows:
“All records, whether hard copy or electronic, showing the name and address and other identifying information for the person with the e-mail address of “[email protected]”, and all records showing messages sent through that e-mail address and all messages received by that e-mail address for the period of [DATE] through the time of service of this warrant; and all such records for the person having that e-mail address showing the use of other e-mail addresses through miaminet.com and all messages sent and received by and through those e-mail addresses for the period of [DATE], through the time of service of this warrant.”
The same records can also be obtained by use of a search warrant from California corporations.
Penal Code section 1524.2 should be carefully read before a search warrant is prepared pursuant to the provisions of this section.
P. Computer Searches
1. Overview
Computers have become a principal means of storing both personal and business information for many people. For criminals, computers provide an excellent means of collecting and storing information that pertains to the criminal’s unlawful activities. A criminal’s computer may contain items such as a drug dealer’s list of suppliers and/or customers, a bookmaker’s records of gambling transactions and moneys owed, a street gang’s membership roster, child pornography, financial records supporting a fraud scheme, identity theft software, and the list goes on and on.
For law enforcement officers, the critical issue is how to lawfully retrieve this information. There is little California case law that discusses whether or not the search of a computer requires a search warrant that specifically authorizes such a search.
One California case that involves the search of a defendant’s computer is People v. Ulloa (2002) 101 Cal.App.4th 1000. In that case, officers obtained a search warrant to seize any computers at the defendant’s residence and to search the computers for incriminating evidence relating to the defendant’s exploitation of children. The Court of Appeal upheld the seizure of the computer and the subsequent search of the computer even though the officers did not actually know that defendant had a home computer containing incriminating evidence. The Court noted that computers are common, and the officers had specific information that the defendant had been communicating with the minor by
III-20 computer. Under the circumstances it would be reasonable to assume that the computer would contain relevant incriminating information, and that the computer would be located in the defendant’s home. The court also noted that the officers were entitled to seize the entire computer system, since the only physical way to search a computer system for evidence is to seize the whole system. (People v. Ulloa, supra, at page 1006, fn. 5.)
Another California case that involved the seizure of a computer is People v. Balint (2006) 138 Cal.App.4th 200. In this case officers were executing a search warrant at a residence seeking various specifically listed items of stolen property. The search warrant contained a “dominion and control” clause ordering the seizure of “any items tending to show dominion and control of the location. . .” A computer was not listed anywhere in the warrant among the items to be seized, including the clause encompassing dominion and control evidence. The officer in charge of the investigation seized a computer pursuant to the dominion and control evidence clause in the warrant, believing that the computer might have information within it establishing the identity of persons having dominion and control over the residence. A forensic examination of the computer revealed that it was stolen property. The Court of Appeal held that the computer was properly seized as evidence showing dominion and control of the residence. See also People v. Varghese (2008) 162 Cal.App.4th 1084, which holds the same.
Additional guidance in this area can be obtained from federal cases.
2. Federal Cases
Several Ninth Circuit federal cases have held that a search warrant is required to retrieve information from a computer.
In United States v. Lacy 119 F.3d 742 (9th Cir. 1997), U. S. Custom Agents obtained a search warrant based upon probable cause to believe that the defendant was downloading child pornography at his apartment from a computer bulletin board system. Although the agents had probable cause to believe there was computer equipment in defendant’s apartment, they did not know exactly what it was. As a result, they described the equipment in the warrant in “generic terms.” The court stated that “this type of generic classification is acceptable when a more precise description is not possible.” (Id at page 746.) The Court upheld the defendant’s conviction for possessing child pornography, finding no error in the blanket seizure of the computer equipment.
In United States v. Wong 334 F.3d 831 (9th Cir. 2003), a peace officer in a murder investigation obtained a search warrant to search defendant’s residence for various items including computer data “as it relates to this case.” During the search, officers seized various items including two Palm Pilots, a computer tower, and six laptops. They also found evidence that the murder victim (the defendant’s girlfriend) had used the computers to access the Internet. Officers then obtained a second warrant authorizing a search of the computers. The second search warrant incorporated the affidavit for the first search warrant and stated that the computers were to be searched by a computer
III-21 forensic specialist with the California Department of Justice. The specialist found child pornography while searching graphics files, and the defendant was convicted of possessing child pornography. The Ninth Circuit Court of Appeals held that probable cause existed for the two warrants. Proof that certain documents are stored on computers in a home or office is commonly based on circumstantial evidence; but since people now store many, if not most, of their documents and graphics in computers, the courts have ruled that when there is probable cause to search for documents, officers may usually infer that some or all of them will be found in computers. As to the language “as it relates to this case” found in the first warrant, the court ruled that this language was not overbroad because it was limited by other information contained elsewhere in the affidavit.
In United States v. Adjani 452 F.3d 1140 (9th Cir. 2006), FBI agents obtained a search warrant for the defendant’s residence for evidence of extortion involving the sending of threatening emails to the victims. The warrant authorized the seizure of “computer hard drives, computer disks, CDs, and other computer storage devices.” Two computers were seized at the defendant’s residence, one used by the defendant and the other used by the defendant’s female accomplice. During a search of the accomplice’s computer and hard drive, email correspondence was found implicating the defendant and his accomplice in the extortion plot. The Ninth Circuit Court of Appeal ruled that the seizure of the computers and the search of their contents were valid. The Court made the following points:
a. If there is probable cause to believe a computer or computers within premises were used in the commission of a crime and/or contain evidence of criminal activity, all computers within the premises can be seized and their electronic contents searched pursuant to a search warrant. It is not necessary to show that a named suspect owned or used a particular computer. b. Officers need not list particular file names to be searched. All files within the computer can be searched. c. The items to be looked for within the electronic files of the computer should be described with as much specificity as possible. Warrants which describe generic categories of items are not necessarily invalid if a more precise description of the items subject to seizure is not possible. d. If a search warrant authorizes the seizure and search of a computer, officers may seize any evidence of criminal activities while searching within the scope of the warrant. The only circumstance in which a search warrant might be required is if evidence of an unrelated crime is discovered. The Adjani case said it was not deciding whether or not a search warrant would be necessary under such circumstances.
In United States v. Hill 459 F.3d 966 (9th Cir. 2006), agents serving a valid search warrant secured a computer while they waited for a second search warrant that specifically authorized a search of the computer’s files. The defendant argued that the search of his computer files pursuant to the second warrant should have been limited to
III-22 files likely to be associated with those identified in the search warrant. The Court of Appeal rejected that argument and stated as follows at page 977:
Computer records are extremely susceptible to tampering, hiding or destruction, whether deliberate or inadvertent. Images can be hidden in all manner of files, even word processing documents and spreadsheets. Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer.
In United States v. Giberson 527 F.3d 882 (9th Circ. 2008), federal agents served a valid search warrant at defendant’s residence to search for records and documents that defendant was fraudulently avoiding the payment of his child support obligation. During the search, agents observed a computer connected to a printer. Next to the printer was some fake I.D. that could have been printed from the adjacent printer. Agents seized the computer and sent it to a forensics laboratory where a mirror image of the computer’s hard drive was made. Agents obtained a second search warrant authorizing a search of the mirror image of the hard drive for records relating to the creation of the fake I.D. During this search, images of child pornography were observed. Agents obtained a third search warrant to search the mirror image of the hard drive for evidence of pornography, and a search pursuant to this warrant revealed over 700 images of child pornography. The defendant’s motion to suppress was denied, and he was convicted of receiving and possessing child pornography. On appeal, the Court held that the computer was properly seized pursuant to the first search warrant, since the searching agents reasonably believed that documents specified in the warrant would be found stored in the computer. It was reasonable for the agents to secure the computer until a second and third search warrant was obtained to search it. The search of the computer was conducted pursuant to a valid second search warrant and proceeded in a reasonable manner. Pornography was not searched for until authorized by the third warrant.
These federal cases support the proposition that a search warrant is required for the search of a computer. The mere fact that a computer has been seized by, and is in the possession of law enforcement officials is not sufficient by itself to permit a search of the computer. Further, only those items described in the search warrant may be seized and used as evidence in a computer search. Finally, the search of the computer includes the computer disks and hard drives and permits the examination of all the documents in the computer to determine their relevancy.
3. Describing the Hardware to be Searched
The search warrant must particularly describe the hardware to be searched. If the warrant is based on firsthand knowledge that the incriminating data is stored in a computer or removable storage device, the requirement can be satisfied rather easily because the source of the information will usually have seen the type of equipment on which the data was stored.
III-23 If, however, probable cause is based on reasonable inferences that the data is stored on a computer or removable storage device, officers will probably not know exactly how the data was stored. The courts appreciate this problem and, consequently, have developed a rule that the description of the hardware need only be as specific as is reasonable possible. (See United States v. Lacy 119 F.3d 742 (9th Cir. 1997).) This means that the degree of specificity required will depend on how much information officers possessed about the equipment and how much information they could have obtained with reasonable effort.
. . . computers, anything capable of storing data such as portable hard drives, floppy drives, zip or jazz drives, CD-ROMS and tape media, computer peripheral devices, and smart card devices.
One effective way of dealing with the problem of describing hardware when the type of hardware is unknown is giving a fairly detailed description of the data to be seized, then inserting language in the warrant that specifically authorizes a search for the data in any hardware on which the data may be stored.
. . . [list documents to be seized] whether stored on paper or on electronic or magnetic media such as internal or external hard drives, diskettes, backup tapes, cassette tapes, compact disks (CD’s), digital video disks (DVD’s), optical disks, electronic note-books, video tape, or audio tape.
4. Describing the Data to be Seized
A warrant to search a computer must contain a description of the data to be seized and the description must be “reasonably particular.” (Penal Code sections 1525, 1529.) In many cases, however, law enforcement officers do not have enough information about the data to describe it with much specificity. However, officers should still be able to satisfy the “particularity” requirement by describing the data as best they can. The description of data should be as specific as is reasonably possible under the circumstances.
In situations where officers have little or no information about the nature of the data to be seized, they might describe it as pertaining to a certain person, occurring between certain dates, or data pertaining to a certain drive. For example, if officers are writing a warrant to search the home of a suspected cocaine dealer, they may have probable cause to believe that there are files in the suspect’s computer containing records pertaining to the suspect’s drug business. In most cases, however, they will not know exactly what these documents will be, so it would probably be sufficient to describe the documents in a way that would permit only the seizure of documents pertaining to the suspect’s drug business, such as “drug trafficking records, ledgers, or writings identifying cocaine customers and suppliers.”
Similarly, officers who have developed probable cause that the suspect stores child pornography in his computer may not know exactly what types of graphics they will find.
III-24 If so, it would probably be sufficient to describe the documents to be seized as “child pornography” or “minors engaged in sexually explicit conduct.”
5. Searching the Computer
When confronted with a computer at a search scene, officers have several options as to how to conduct the search. One option is a search of the computer at the scene. A second option is to remove the computer to another location where the search of the computer can be conducted. As stated in United States v. Hunter 13 F.Supp.2d 574, (D.Vt 1998) at page 583, “Often it is simply impractical to search a computer at the search site because of the time and expertise required to unlock all sources of information.” The third option involves a forensically trained expert making an exact duplicate of the hard drive’s contents, commonly known as a “clone” or “bit-image copy,” and then search the clone. If option two or three is used, officers should include language in the search warrant authorizing the removal of the computer for an off-site search and/or the making of a cloned copy.
Example -- Sample Language for Removing Computers for Off-Scene Search.
. . . Investigating officers are authorized, at their discretion, to seize all “computer systems,” “computer programs or software,” and “supporting documentation” as defined by Penal Code section 502, subd. (b), including any supporting hardware, software or documentation that is necessary to the use of the system or is necessary to recover digital evidence from the system and any associated peripherals that are believed to contain some or all of the evidence described in the warrant, and to conduct an off-site search of the seized items for the evidence described. Investigating officers and those agents acting under the direction of the investigating officers are authorized to access all computer data to determine if the data contains “property,” “records,” and “information” as described above. If necessary, investigating officers are authorized to employ the use of outside experts, acting under the direction of the investigating officers, to access and preserve computer data. The investigating officer has [insert current forensic turn around time + 10 days] days from the date of seizure to determine if the seized computer systems and associated peripherals contain some or all of the evidence described in the warrant. [Or the following language might be used: any digital evidence found during the execution of this search warrant will be seized, transported from the scene, and analyzed in a reasonably prudent time.] If no evidence of criminal activity is discovered relating to the seized computer systems and associated peripherals, the system will be returned promptly.
Q. Fraud Cases -- Business “Permeated with Fraud”
If an enterprise can be shown to be “permeated with fraud,” then virtually all records can be seized even though not necessarily every record will be related to a fraudulent transaction. For example, in the case of People v. Hepner (1994) 21 Cal.App.4th 761, employees of a medical practice informed insurance fraud investigators that at least 90% of the medical claims submitted
III-25 by the medical practice were either completely or partially fraudulent. The Court of Appeal held that this showed the medical practice to be “permeated with fraud” such that all of the patient records could be seized by the use of a search warrant even though some of the records might not contain evidence of fraudulent billing.
R. Evidence of Sexual Exploitation of Children and/or Minors
Penal Code section 1524 subd. (a)(5) permits the seizure of property or things which tend to show that sexual exploitation in violation of Penal Code section 311.3 and/or 311.11 has occurred or is occurring. Penal Code section 311.3 refers generally to photographing, filming, and videotaping sexual activity of children under the age of 14. Penal Code section 311.11 refers to depictions of “simulating sexual conduct” by persons under the age of 18. Descriptions of property sought pursuant to Penal Code section 1524 subd. (a)(5) should conform to section 311.3 or 311.11. The use of a search warrant to obtain evidence of a Penal Code section 311.3 violation was held valid in In re Duncan (1987) 189 Cal.App.3d 1348.
S. Child Molestation Cases
A suspect has committed acts of child molestation at a location that is not his residence. Without more, can a search warrant be issued for the suspect’s residence for child pornography? There does not appear to be any California case law on this issue. However, in a 2-1 decision the Ninth Circuit Court of Appeals said no in Dougherty v. City of Covina 654 F.3d 892 (2011). The majority opinion noted that “Other circuits have split on the question of whether evidence of child molestation, alone, creates probable cause for a search warrant for child pornography.” The opinion left undecided whether the affiant’s expert opinion that the suspect was a pedophile child molester would have provided the necessary probable cause.
If probable cause can be established that specific items, including child pornography, are at a suspect’s residence, then a search warrant may be issued for the seizure of those items. Below is a list of items that may be listed in a search warrant as property to be seized, depending on the facts of the case and expert opinions set forth in the affiant.
Example -- Child Molestation Cases
. . . photographs, slides, photographic negatives, computers and the files contained therein, drawings and other pictorial representations of a [age, sex, race] child either nude or dressed; photographs, slides, photographic negatives, drawings, and other pictorial representations of other children, nude or dressed; undeveloped film, exposed or unexposed; writings relating to sexual activity with children including notebooks, diaries, logs and correspondence; video and audio tape; receipts for the developing of photographic film; cameras and related photographic equipment; videotape games and records; audiotape records; and articles of personal property tending to establish the identity of the persons in control of the premises, vehicles, storage areas, and containers being searched including computers and the electronic files contained within, utility company receipts, rent receipts, addressed envelopes and keys.
III-26
T. Search Warrant to Seize a Person for Whom a Warrant of Arrest Has Been Issued
Penal Code section 1524(a)(6) provides for the issuance of a Search Warrant to enter and search the residence of a third party to find and seize a person for whom a warrant of arrest has been issued. This is discussed in Chapter I, Section F. The person to be arrested should be described on the Search Warrant form with “reasonable particularity.” Thus, the person should be described by name, sex, age, height, weight, hair, eyes and distinguishing characteristics to the extent known.
U. “Good Faith” Exception -- Descriptions
Naturally, every effort should be made to ensure the list and descriptions of items to be seized pursuant to a search warrant are correct in every respect and fully supported by probable cause as to each item listed. But if it is discovered after the search that the list or description of items was invalid or incorrect in some respect, the search and seizure of evidence should nevertheless be upheld according to the “good faith” exception as set forth in the case of Massachusetts v. Sheppard (1984) 468 U.S. 981, and the discussion in Chapter XI, Section J, of this manual. In the Sheppard case, the list of items sought in the search warrant presented to the magistrate related to controlled substances rather than items relating to a murder which the officers hoped to seize. This was pointed out to the magistrate who said he would make the necessary changes, but never did, and who informed the officers verbally they could search for the items relating to the murder which they had properly listed in the affidavit in support of the warrant. A search warrant was signed, the search was conducted, and items relating to the murder were seized. In court, the defense sought to suppress the seized items on the grounds that the search warrant did not list the seized items but listed controlled substances only.
On appeal, the United States Supreme Court held the seized items should not be suppressed. The court reasoned that since the officers reasonably believed the search they conducted was authorized by a valid warrant and acted in good faith reliance thereon, no purpose would be served by suppressing the evidence recovered even though the warrant description was defective. Thus, the search was upheld and the recovered items admissible in evidence.
A California case specifically following Massachusetts v. Sheppard is People v. Alvarez (1989) 209 Cal.App.3d 660. In Alvarez, the affiant/officer prepared an affidavit and search warrant in longhand. At the district attorney’s office the warrant and affidavit were typed onto separate forms (the combined search warrant/affidavit form was not used). The typed affidavit was correct, but the typist failed to type the list of items to be seized on the search warrant form. No one noticed the omission and the forms were signed. The warrant was served and narcotics were seized before the mistake was noted. The Court of Appeal held the good faith exception rationale of Massachusetts v. Sheppard was applicable and did not suppress the items seized in the search. See also People v. Rodriguez-Fernandez (1991) 235 Cal.App.3d 543, where an inadvertent omission of a standard list of narcotics to be seized was deemed to fall within the good faith exception and so the fruits of the search were not suppressed.
III-27 V. Checklist
1. Be Specific
Descriptions should be as specific as possible.
2. Be Thorough
Include every item for which probable cause to search exists but not items which only “might” be present.
3. Proofread!
Avoid mistakes in serial numbers, model numbers, brand names, etc.
4. Include List of Items to be Seized
Don’t forget to include the list of items to be seized.
W. Form -- Consent to Release Bank Records
See following pages.
X. Form -- Police Letter
See following pages.
III-28 CONSENT TO RELEASE BANK RECORDS
Date:
I, , Name of Account Holder hereby authorize , Name of Investigating Officer or any member of , Name of Investigating Agency or Department to conduct a complete search of the records for the period of
of my bank checking account No. located at . Name and Address of Bank
These peace officers are authorized by me to copy such records and retain such copies.
This written permission is being given by me to the above-named peace officers voluntarily and without threats or promises of any kind.
I understand that I have the right at any time to revoke this authorization.
ACCOUNT HOLDER WITNESS
Signature Signature
Print Name Print Name
Address Address
Address Address
Note: This Form Complies with the requirements of Government Code Section 7473
(POLICE AGENCY LETTERHEAD)
Date
Operations Officer Name of Bank Address of Bank
Re: Request for Bank Records
Dear Sir or Madam:
This is to certify that a crime report has been filed with this Department concerning a dishonored check or checks drawn on your bank (copy or copies attached).
Pursuant to California Government Code Section 7480 subd. (b), certain information in your bank’s records is requested by this Department. Please provide the information requested on the attached sheet and forward that sheet and any other documents containing the requested information to the address indicated.
Government Code Section 7480 subd. (b) mandates compliance with this request. Your cooperation and expeditious processing of this request is appreciated.
Very truly yours,
Attachment
1. Bank name: 2. Branch and address: 3. Account holder’s name: 4. Account number: 5. The date the account was closed: 6. Please provide a legible copy of the signature and any addresses appearing on the signature card. 7. Please provide the following information for the time period of ______, 20____, through ______, 20____ (cannot exceed the period 30 days prior to first alleged dishonored item and 30 days following last alleged dishonored item): a. The number of items dishonored: ______b. The dollar volume of such items: ______c. The number of items paid that created overdrafts: ______d. The dollar value of such items: ______e. The dates and amounts of deposits and debits and the account balance on such dates: ______f. Were there any credit arrangements to pay overdrafts and, if so, what were those arrangements? ______8. Name of bank representative providing above information:
Please forward the information requested above to: Officer: Department: Address: File Number: Date Mailed:
CHAPTER IV
STATEMENT OF PROBABLE CAUSE
A. Introduction
“A search warrant cannot be issued but upon probable cause, supported by affidavit . . .” (Penal Code section 1525.)
For many years, the sufficiency of the statement of probable cause in support of a search warrant was evaluated in terms of what had become known as the “two-prong” test first set forth in Aguilar v. Texas (1964) 378 U.S. 108, 114, and later in Spinelli v. United States (1969) 393 U.S. 410. California courts consistently followed the Aguilar and Spinelli cases in evaluating the validity of search warrants. See, for example, People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711. However, on June 8, 1983, the United States Supreme Court, in the case of Illinois v. Gates (1983) 462 U.S. 213, specifically abandoned the “two-prong” test and announced a new “totality of the circumstances” test to be used in evaluating search warrants. The Supreme Court stated:
[W]e conclude that it is wiser to abandon the “two pronged” test established by our decisions in Aguilar and Spinelli. In its place we affirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. [Citations omitted.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate has a “substantial basis for . . . conclud[ing]” that probable cause existed. (462 U.S. at pp. 238-9.) (Emphasis added)
Since the publication of Illinois v. Gates, many California Court of Appeal cases have held that the “totality of circumstances test” is now the standard by which to evaluate search warrants in California. For example, see People v. Spears (1991) 228 Cal.App.3d 1, 19; and People v. Costello (1988) 204 Cal.App.3d 431, 444.
Illinois v. Gates also makes it clear that even apparently innocent behavior may provide the basis for a showing of probable cause depending upon the circumstances. (Illinois v. Gates, supra, at page 244, fn. 13.) For example, in People v. Glenos (1992) 7 Cal.App.4th 1201, a valid search warrant was issued based primarily upon a suspect purchasing a large quantity of Freon -- itself legal but often used in the manufacture of illegal drugs -- using a false name for the purchase and transporting the Freon to a remote location -- remote locations are often used for the manufacture of illegal drugs. (People v. Glenos, supra, at pp. 1206-1208.)
Although the totality of circumstances test is now the law, satisfying the “two-prong” test is still a good approach to the writing of a valid affidavit in support of a search warrant. Indeed, Gates
IV-1 itself says the elements of the “two-prong” test concerning an informant’s “veracity,” “reliability,” and “basis of knowledge” are still highly relevant in determining the value of an informant’s statements. Also, considerable case law exists relating to the “two-prong” test. Thus, this manual will discuss the preparation of a search warrant affidavit in terms of both the “two-prong” test and the “totality of circumstances” test.
It is generally considered that warrants will more likely be declared valid if their supporting affidavit is evaluated in terms of the totality of circumstances test rather than the more rigid and formalistic two-prong test. (See Illinois v. Gates, supra, (1983) 462 U.S. at page 230.) Thus, cases which held warrants valid under the old two-prong test may be asserted as precedent for holding warrants with similar facts valid under the new totality of circumstances test. Note also that Gates requires the issuing magistrate to find only that a “fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates, supra, at page 238.)
In the search warrant affidavit forms used in Los Angeles County -- and shown in the appendices to this manual -- the actual statement of probable cause by the affiant will follow the pre-printed Search Warrant and Affidavit face sheet. The affidavit face sheet refers to the “attached and incorporated Statement of Probable Cause.” Thus, plain paper can simply be labeled “Statement of Probable Cause,” and the affiant’s words thereon, along with the pre-printed face sheet of the affidavit, becomes the statement of probable cause for the warrant. Other counties use similar formats.
Within the statement of probable cause the affiant should set forth in a narrative form the facts leading to his or her belief that the items sought will be found at the locations to be searched. In this manual it is presumed the affiant requesting the search warrant will be a peace officer, although the Penal Code does not require this, and a private citizen can be the affiant. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1055.)
The affidavit should begin with a statement by the affiant identifying himself/herself and reciting his/her training, experience, and expertise. The affiant should then relate both personal observations and any information received from other sources and other persons relevant to establishing probable cause for the search warrant. The affiant should also include facts justifying a belief the information contained within the affidavit, particularly information provided to the affiant by other persons, is accurate and reliable. The affidavit should then conclude with the opinion of the affiant that, based upon his/her training and experience and the facts set forth in the affidavit, the items sought will be found at the places indicated and described.
In order for a search warrant to be valid, the supporting affidavit must contain sufficient factual information for the issuing magistrate to independently form the opinion that the items sought are lawfully seizable (Penal Code section 1524) and are on the persons and/or places to be searched, and the affidavit must also contain a showing that the information within it is reliable.
A search warrant cannot be based upon mere rumor or generalized suspicion. A conclusionary statement alone, e.g., “Bert Jenkins is a heroin dealer,” will not justify a warrant. An officer’s statement that “affiant has received reliable information from a credible person and believes that
IV-2 heroin is stored in suspect’s home” is likewise inadequate. This is merely a conclusionary statement that gives the magistrate no basis for making an independent judgment regarding probable cause. “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” (Illinois v. Gates, supra, at page 239.)
To summarize: the affidavit must state sufficient factual information to establish probable cause, state the source of the information, and establish the reliability of the information. As stated in People v. Cook (1978) 22 Cal.3d 67 at page 84, “The magistrate is required to make in effect two successive determinations: first he must satisfy himself that the facts are as the [affiant] states them to be, then he must consider whether those facts constitute probable cause for issuance of the warrant.”
In preparing the affidavit, the affiant should express his/her own observations, if any, in a manner which demonstrates personal knowledge and factual information. Significant details should be included. Thus, the affiant should state:
While inside the location of 12018 Tiara Street, North Hollywood, your affiant, acting in an undercover capacity, observed the suspect, Gregory Smith, sitting at the kitchen table and placing tan powder into small balloons. The tan powder appeared to your affiant to be heroin, and this manner of packaging is typical of heroin. The location and suspect appeared as described above on the face sheet of this warrant.
It would be insufficient for the affiant to merely state, “Gregory Smith has heroin at 12018 Tiara Street, North Hollywood.” An example of an affidavit based primarily upon the observations of the affiant alone is set forth in Appendix F.
In those cases in which the affidavit is based entirely upon the observations of the affiant, the credibility of the affiant as the source of information is established by the issuing magistrate accepting the affidavit. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 154.) If the magistrate did not believe the affiant to be truthful in his statements, then the magistrate would not sign the affidavit and warrant. Also, all police officers are presumed to be credible for search warrant purposes. (People v. Hill (1974) 12 Cal.3d 731, 761.)
It is unusual for an affidavit to be based solely upon the observations of the affiant. Usually, other persons provide information to the affiant which is also included in the affidavit. For search warrant purposes, such persons are known as “informants.”
1. Use of Informants -- Two-Prong Test
A valid search warrant may be issued based entirely upon information provided to the affiant by an informant. However, the basic requirements of factual sufficiency and reliability must be demonstrated.
This was set forth in general terms in Aguilar v. Texas (1964) 378 U.S. 108, 114 as follows:
IV-3
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, [citations], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citations] was “credible” or his information “reliable”.
Thus, the Aguilar case is often cited as establishing a “two-prong” test of the validity of a search warrant based solely upon an informant’s statement. The two prongs require that: 1) the underlying circumstances or factual basis of the informant’s statement must be set forth -- thus, a mere statement by the informant that “Chris Bingham is dealing heroin” is insufficient -- and, 2) it must be shown that the informant was credible OR his information reliable.
Analysis of the two prongs shows that each actually has two parts. The first (“factual basis”) prong requires that the informant’s statement be: (a) factual, and (b) based upon personal knowledge. (This will be discussed further in Section D.) The second (“reliability”) prong requires that the affidavit show that: (a) the informant himself is credible, or (b) that his information is reliable.
The informant himself may be shown to be credible either by showing that he comes within a category of persons all of whom are presumed credible, such as police officers or “citizen informants,” or by showing that he has given accurate information on prior occasions and is thus a “tested informant.” The informant’s information may be shown to be reliable by corroborating it with other facts set forth in the affidavit. Either way, the magistrate is justified in relying upon the information provided by the informant. This will be discussed further in Sections C and F, below.
2. Use of Informants -- Totality of the Circumstances Test
In order to avoid “excessively technical dissection of informant’s tips” and “rigid” application of the two-prong test, Illinois v. Gates specifically abandoned this test in favor of the totality of the circumstances test. (Illinois v. Gates, supra at pp. 234 and 238, fn. 11.) Illinois v. Gates permits the issuance of a search warrant based upon information from an informant even though under a strict application of the two-prong test, a warrant might not be issued. This is set forth in the following quotation from Gates:
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on this tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity -- which if fabricated would subject him to criminal liability --
IV-4 we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. (Illinois v. Gates, supra at pp. 233-34, citations omitted.)
B. Affiant -- Establishing Identity, Training and Experience
The affiant should begin the statement of probable cause by stating his rank, name, serial number and assignment. Thus should be followed by a detailed statement of his training and experience.
It is important that the affiant state his training and experience in detail even though he may have never qualified as an expert in court. The courts have held that training and experience often will justify the affiant attaching special significance to the facts related in the affidavit. For example, a narcotics investigator can attach special significance to the presence of empty powdered milk boxes and toy balloon containers lying behind a suspected heroin seller’s residence. Coupled with other evidence, this may justify an opinion that heroin is being packaged and sold within that residence. (People v. O’Leary (1977) 70 Cal.App.3d 323, 329, and People v. Johnson (1971) 21 Cal.App.3d 235, 243.) The opinion of the affiant, based upon the facts set forth in the affidavit, can be considered as competent and relevant evidence by the magistrate issuing the warrant. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784; People v. Aho (1985) 166 Cal.App.3d 984, 992; and People v. Johnson, supra, at page 245.)
In People v. Veasey (1979) 98 Cal.App.3d 779, the affiant’s statement of training and experience established that he was a narcotics expert. His opinion that the phrase, “A small thing of boy,” referred to heroin was legally valid and could be so considered by the magistrate issuing the warrant. (People v. Veasey, supra, at pp. 784-785.)
Moreover, an affiant need not be a court qualified narcotics expert to express certain opinions but need only have routine training, providing it is set forth in the affidavit. People v. Johnson (1971) 21 Cal.App.3d 235, 243, stated that, “It is a matter of common knowledge that in California, officers of the major police and sheriffs’ departments receive intensive training in narcotics enforcement.” Also see People v. O’Leary (1977) 70 Cal.App.3d 323, 329, which states that extra weight should be given to the opinions of narcotics investigators.
Because a detailed description of the affiant’s expertise is often lengthy, it is recommended that officers who regularly seek warrants prepare and make copies of a thorough statement of their training and expertise. The copies can then be used in all subsequent affidavits prepared by the officer. The statement should be periodically updated. The following examples are for guidance only:
1. Narcotics
. . . Your affiant, Sgt. Jack S. Margolis, No. 121134, is employed by the Los Angeles Police Department and has been a police officer for the past eight years. For the past 27 months your affiant has been assigned to the West Los Angeles
IV-5 Narcotics Division and has worked exclusively in the investigation of Uniform Controlled Substances Act violations. During that time your affiant has conducted in excess of 400 controlled substances investigations and arrested in excess of 600 persons for violations dealing with heroin, cocaine, PCP, marijuana, methamphetamine, and other dangerous drugs. Your affiant has directly participated in over 40 undercover buys of controlled substances. Your affiant has also participated in the seizure of controlled substances in excess of 250 times. Your affiant has spoken to hundreds of persons who use controlled substances and who sell or have sold controlled substances.
Your affiant has also worked with other experienced officers in the field and has attended over 60 hours of classes at the Los Angeles Police Academy on the subject of the use, identification, packaging, and sale of controlled substances. Your affiant has also completed 28 units at California State University at Northridge on the subject of narcotics, including the usage, sales, and identification of commonly abused controlled substances. Your affiant has testified as an expert on controlled substances in various courtrooms in Los Angeles County in excess of 25 times.
2. Burglary
. . . Your affiant, Officer Loren Naimen, No. 072553, has been employed as a police officer by the Los Angeles Police Department for the past four years and is currently assigned to the Wilshire area as a patrol officer. Your affiant has made approximately 100 arrests for burglary. Your affiant has also conducted approximately 300 preliminary burglary investigations. Your affiant has also consulted with experienced investigators regarding follow-up investigations on those cases. Your affiant has been present when stolen property was recovered from burglars’ residences on approximately 20 occasions. Your affiant has also studied several LAPD publications on the subject of burglary and is thoroughly familiar with the crime of burglary and the manner in which stolen property is disposed of in Los Angeles County.
In the foregoing example, the affiant is a typical patrol officer who after four years experience has acquired considerable expertise. This experience should be expressed in the affidavit to give appropriate weight to the opinions expressed.
In some cases, the affiant may wish to rely wholly or partly upon the expertise of another in stating a belief that the items sought are within the places described. In such cases, the name, identification, and expertise of the other person should be set forth in the affidavit. It should also be stated that the facts contained within the affidavit were told to this expert. The opinions and conclusions of that expert may then be set forth in the affidavit and may be considered by the issuing magistrate.
IV-6 3. Explosives
. . . On [DATE], I met with Detective Brandon Savage, No. 72069, Los Angeles Police Department. Detective Savage stated that he is currently assigned to the Firearms--Explosives Section of the Los Angeles Police Department and has been so assigned for the past four years. He also informed me that he has extensive training and experience regarding bombings and explosives. This includes 24 hours of college credit, numerous seminars and training sessions, and personal participation in the investigation of approximately 300 bombing cases. Further, he had qualified and testified as an explosives expert in various courtrooms in Los Angeles County on approximately 25 occasions.
I related to Detective Savage the information set forth in this affidavit and he stated that, based upon that information and upon his training and experience, it was his opinion that . . .
Following the statement of identity, training and experience, the affidavit should set forth the information which will constitute the factual basis of the affidavit. A chronological narrative is usually best. The affidavit should end with a statement by the affiant that:
. . . Based upon your affiant’s training and experience, and the facts contained within this affidavit, your affiant believes the items sought will be found at the places indicated and described.
It may be desirable for the affiant to specify the reasons for this opinion, especially if they are not obvious to non-experts:
. . . In your affiant’s experience, heroin dealers usually use toy balloons in which to package and sell heroin. “Cutting” refers to the dealer mixing the heroin with powdered milk in order to increase the size of the supply. In your affiant’s opinion, the presence of the empty toy balloons boxes and empty powdered milk cartons, observed by your affiant lying on the ground behind the back door of the suspect’s residence and the other facts set forth in this affidavit, show that the suspect is a heroin dealer and is packaging heroin for sale in his residence. Your affiant notes that in the four days of surveillance, no children who might use powdered milk or play with toy balloons were observed at the suspect’s residence.
If slang terms were used in the affidavit, the affiant should give his opinion of their common meaning. For example, if an informant stated that he saw “dime bags” in the suspect’s residence, the affiant should state that “dime bags” is a slang term known to him and refers to a child’s balloon containing approximately one quarter gram of heroin and selling for $10 each. See also People v. Veasey (1979) 98 Cal.App.3d 779, wherein the phrase, “A small thing of boy,” was known to refer to heroin.
IV-7 Although this manual presumes that the affiant will be a peace officer, the Penal Code does not require this. Any person may be the affiant for a search warrant. In cases in which the police are relying entirely upon the statements of a non-officer in order to establish probable cause for a warrant, consideration may be given to have the non- officer as the affiant. Also, it is permissible to have more than one affiant. A police officer and a non-officer may both prepare affidavits supporting the issuance of a warrant. See Subsection C.6, below, regarding the use of non-officer affiants.
Also, although the sample affidavit language in this Chapter usually has the affiant officer referring to himself or herself as “your affiant” in the affidavit, it is also perfectly proper for the affiant to write the affidavit in the “first person”. Thus, the affiant may write, “My name is Alex Lindsey. I am a police officer for the Los Angeles Police Department. On [DATE], I received and read a burglary report . . .” Both of these approaches will be used in the various examples set forth in this Manual.
C. Establishing Credibility of Informants
Several categories of informants and means of establishing their credibility will be discussed in this section. The method of showing that the informant’s information is reliable although the informant himself is of unknown credibility will be discussed in Section F., on Corroboration.
1. Police Officers
Police officers and other law enforcement officers are considered credible by virtue of their occupation. (People v. Hill (1974) 12 Cal.3d 731, 761.) The affiant need only state that the person from whom he received information is a police officer in order to satisfy the requirement of reliability. For example, in People v. Paris (1975) 48 Cal.App.3d 766, a statement given the affiant by a police officer regarding his off-duty observation of kilos of marijuana was considered credible.
In People v. Senkir (1972) 26 Cal.App.3d 411, 419-420, a search warrant was issued based entirely upon information regarding a tested informant given to the affiant by a fellow officer. The Court of Appeal held that probable cause existed for the issuance of the search warrant.
Reference by the affiant to another officer should clearly establish the latter’s identity and status as a law enforcement officer.
. . . On [DATE], I was told by my fellow officer, Sgt. Danica Taylor, No. 112204, LAPD West Los Angeles Area Patrol, that she had observed . . .
Obviously, a police officer acting as a conduit cannot transform information that is unreliable into information that is reliable. Information from a source that is unreliable retains its original character as unreliable information, even if it is given to a police officer who then passes it on to a police officer-affiant.
IV-8 2. Citizen Informants
“The courts have recognized a distinction between informers who are virtual agents of the police and citizen informants who are chance witnesses to or victims of crime. The former are often criminally disposed or implicated, and supply their “tips” to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain. The latter are innocent of criminal involvement, and volunteer their information fortuitously, openly, and through motives of good citizenship. Because of these characteristics, the requisite showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer.
“It may therefore be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable.” (People v. Ramey (1976) 16 Cal.3d 263, 268-269; Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 575-576.)
In relating information received from a citizen informant, the name of the citizen need not be disclosed in the affidavit, but the affiant must include some facts by which the magistrate can conclude that the informant was, in fact, a citizen informant as distinguished from an untested informant. (See subsection C.4, below; People v. Lombera (1989) 210 Cal.App.3d 29, 32.) The affiant should relate how he came in contact with the citizen informant, whether the informant appears to be a responsible and credible person, whether the informant is a juvenile or an adult, whether the informant is in custody or a suspect himself, how the informant acquired the information he is relating, and any reasons the informant may have stated for reporting his information to the police, etc. Merely to state that the information was received from a “citizen informant” is insufficient. (See People v. Smith (1976) 17 Cal.3d 845.) However, in the case of People v. Terrones (1989) 212 Cal.App.3d 139, the Court of Appeal held that even though the affiant did not expressly state facts showing that the persons he called “confidential citizen informants” fit within that category, other facts within the affidavit did make it reasonably inferable that the persons were, in fact, citizen informants. It is improper to refer to a person supplying information by way of an anonymous phone call as a citizen informant since he is not acting “openly.” (People v. McFadin (1982) 127 Cal.App.3d 751, 758.) Such a person is more properly considered an untested informant and as such must be corroborated. (See IV.C.4., below.)
Although the name of the citizen informant need not be set forth in the affidavit, the affiant should state that the citizen informant did give his name to the affiant. An example of the manner in which an informant can be shown to fit within the category of a “citizen informant,” and the manner in which his information might be stated is set forth in IV.D.2., below.
An informant may have some involvement with criminal activities but nevertheless be considered a citizen informant. In People v. Schulle (1975) 51 Cal.App.3d 809, the defendant’s 14-year old daughter was considered a citizen informant even though, as indicated in the affidavit, she admitted using marijuana. The court stated that she was
IV-9 entitled to the status of a citizen informant because she was motivated by “good citizenship.”
The affiant should attempt to obtain detailed information from the informant and determine why the informant has come to the police. If the informant is a juvenile, this should be expressly mentioned in the affidavit. (People v. Scoma (1969) 71 Cal.2d 332; and People v. Smith (1976) 17 Cal.3d 845 (concurring opinion).) It is also worthwhile to corroborate the story of such an informant to whatever extent possible.
If the affiant is justified in believing a person to be a citizen informant at the time the affidavit is prepared, the validity of the search warrant will not be affected even if it is later shown that the person was not credible. (Burke v. Superior Court (1974) 39 Cal.App.3d 28; People v. Barrett (1969) 2 Cal.App.3d 142; and People v. Schmidt (1978) 83 Cal.App.3d 968, 975.)
In an appropriate case it may be desirable to have the citizen informant himself be the affiant or a co-affiant for the search warrant. See IV.C.6., below, regarding “Informant Sworn Before Magistrate.”
3. Tested Reliable Informants
This type of informant usually has criminal associations and may be an active criminal himself but nevertheless is known to provide accurate information. The showing of reliability is usually accomplished by the affiant stating that on prior occasions the informant has provided information leading to the seizure of contraband, the arrest of suspects, or that he has given accurate information regarding criminal activities.
In People v. Dumas, the court wrote: “In order to establish the reliability of an informant it is not necessary to relate that his prior information led to convictions. It is sufficient that the prior information was accurate or was of such substance as to cause a reasonable person to conclude that it is reliable.” (People v. Dumas (1973) 9 Cal.3d 871, 876. See also People v. Mayer (1987) 188 Cal.App.3d 1101, 1117.) Information received from a reliable informant might be prefaced as follows:
. . . On [DATE], your affiant met with a confidential reliable informant. Your affiant believes the informant to be reliable because he/she has given your affiant information on six prior occasions during the past year which has proven to be accurate and resulted in the recovery of heroin on each occasion and the arrest of at least one person on each occasion. The most recent of the six prior contacts was within the past 30 days. Six criminal cases were filed as a result of these arrests, and convictions have been obtained in at least four of these cases. The informant has never given inaccurate information . . . .
. . . On [DATE], I received a telephone call from a confidential reliable informant whose name and voice I recognized. I believe the informant to be reliable because he/she has given me information on four prior occasions during the past
IV-10 two months which proved to be accurate and resulted in the recovery of narcotics on each occasion and in the arrest of a total of seven persons; at least one person was arrested as a result of the information on each occasion. Four criminal cases were filed as a result of these arrests which are currently pending. The informant has never given inaccurate information . . . .
. . . Your affiant believes the informant to be reliable because he/she gave your affiant information on one prior occasion within the past six months which resulted in the arrest of an individual and the recovery of rock cocaine. The individual arrested was subsequently convicted.
In the last example the informant’s reliability was based upon a single arrest and conviction. It appears that a single “incident” may establish reliability. See People v. Gray (1976) 63 Cal.App.3d 282, 288, which states: “While one past incident showing reliability is not sufficient to compel a magistrate to accept the reported observations of an informant as true, he does not abuse his discretion if he arrives at that conclusion, particularly where there is no indication the informant was involved in the illegal activity reported.” (Emphasis in original.) People v. Prewitt (1959) 52 Cal.2d 330, 334-337, and People v. Metzger (1971) 22 Cal.App.3d 338, 345, held that an informant who had given information resulting in arrests on two separate occasions was reliable.
It is good practice, however, to corroborate, if possible, any information received from an informant who has previously provided information resulting in only one or two arrests. (People v. Dumas (1973) 9 Cal.3d 871, 876; and People v. Gray (1976) 63 Cal.App.3d 282, 288.)
If arrests have resulted from information supplied by an informant and charges have been filed but the case has not yet progressed to the preliminary hearing or trial stage, these facts should be stated since they constitute more substantiation of the informant’s reliability than arrests alone. (People v. Superior Court (Johnson) 6 Cal.3d at pp. 714, 715; and People v. McFadin (1982) 127 Cal.App.3d 751.)
If the information previously supplied by the reliable informant has resulted in the issuance of a search warrant and the recovery of contraband, these facts should be specifically mentioned. Also, if, as a result of the informant’s information, persons have not only been arrested but have charges pending, or have been held to answer or convicted, this also should be specifically mentioned. “If the fact of prior valid arrests of suspects is a sufficient index of an informant’s reliability, the fact of a finding of probable cause to hold suspects by a federal magistrate is even more significant.” (People v. Dumas (1973) 9 Cal.3d 871,876.)
It is also proper for one affiant to use another officer’s reliable informant even if the affiant himself has had no prior contact with this informant. (People v. Lopez (1986) 181 Cal.App.3d 1101, 1117.) The affiant should state who the other officer is, why that other officer believes the informant is reliable, and how the affiant learned of the reliability.
IV-11 . . . On [DATE], I met with a confidential reliable informant. I have had no prior contact with this informant but was informed by my fellow officer, Investigator James Falco, No. 012555, LAPD, Central Narcotics Division, that he (Falco) has known this informant for approximately six months. Investigator Falco stated that he believes the informant to be reliable because the informant has given him information on several occasions over the past six months and most recently within the past month, which has always proven to be accurate. Moreover, this information resulted in the recovery of stolen property on three occasions and the arrest of a total of six persons, one of whom has been convicted of receiving stolen property as a result.
An informant may also be considered reliable if he has given accurate information regarding criminal activities in the past even if his information has not resulted in either arrests or the recovery of contraband. Note the following language in People v. Mayer (1987) 188 Cal.App.3d 1101, 1117: “Arrests need not lead to conviction in order to establish the reliability of an informant. . . Similarly, that portion of the affidavit indicating the informant had given credible information which was confirmed by an undercover officer in another investigation provided a firm basis for the magistrate to conclude the informant was reliable. The reliability of an informant may be established by other officers to the affiant.” Similar language appears in the California Supreme Court opinion in People v. Dumas (1973) 9 Cal.3d 871, 876:
In order to establish the reliability of an informant it is not necessary to relate that his prior information led to convictions. It is sufficient that the prior information was accurate and was of such substance as to cause a reasonable person to conclude that it is reliable. (People v. Dumas (1973) 9 Cal.3d 871, 876.)
In People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69, 75, an informant who had previously given accurate information regarding the location of two caches of stolen property was held to be reliable. Again, corroboration is desirable.
As with citizen informants (People v. Lombera (1989) 210 Cal.App.3d 29, 32), it is not necessary to give the name of reliable informants in the affidavit although it may be necessary to identify an informant in later court proceedings. (See Chapter VI on protecting the identity of informants.) Also, it is unwise to describe in detail the results of investigations based upon information provided in the past by the informant if doing so might furnish clues to his identity. It is sufficient to say that accurate information was given, or persons arrested, or contraband recovered, without discussing in detail the information previously given, naming the persons arrested, or giving exact descriptions of the contraband recovered or exactly where and when it was recovered.
If the affiant does not wish to name his informant in the affidavit, he should include an explanation of why the identity has not been disclosed.
. . . Your affiant requests that the identity of the informant be kept confidential because your affiant believes that the disclosure of the informant’s identity would
IV-12 destroy or impair his/her future usefulness to law enforcement officers engaged in investigating criminal activity and would subject him/her to great bodily injury or death from those he/she has informed upon and their associates.
This statement conforms to Evidence Code sections 1041 and 1042 as the statutory basis of non-disclosure of informants.
The use of joint pronouns in the body of the affidavit will help protect the confidentiality of the informant, e.g., “he/she saw heroin on the kitchen table,” or “the blank County checks were shown to him/her.” Protecting the identity of informants is discussed at length in Chapter VI.
An informant may be considered reliable even though he has not always been truthful or accurate in the past. In People v. Barger (1974) 40 Cal.App.3d 662, the informant originally denied any knowledge of a particular murder. Three days later, he stated he had been at the scene of the murder and gave a full and detailed statement of what he saw. The court held that the informant’s original statement did not destroy his reliability since it was not unreasonable for him to originally deny being present where a killing occurred. Moreover, the informant had given accurate information on a prior occasion, and the affiant was able to corroborate much of the information given by the informant in which he admitted being at the crime scene.
Another example is People v. Murphy (1974) 42 Cal.App.3d 81. Here the affiant had previously obtained nine search warrants for heroin based upon the informant’s statements. Heroin was found in only one of those searches. Nevertheless, the court held that the informant could still be considered reliable even though his information “did not always pay off.” The court gave several reasons why the other searches might not turn up heroin even though the informant’s information had been good. The court said, “Circumstances change: narcotics dealers move about, sell and use up their narcotics supply or cache them in new places.” (People v. Murphy, supra, at page 87.) The court concluded that the informant should not be considered unreliable “merely because [his] average of successful narcotics searches was low.” (People v. Murphy, supra, at page 88.)
If the affiant is reasonably justified in believing an informant to be reliable at the time the affidavit is prepared, the validity of the search warrant will not be affected even if it can later be shown that the informant lied in his statements to the affiant. (People v. Schmidt (1978) 83 Cal.App.3d 968, 975.) “The only relevancy of subsequent events to the validity of the warrant lies in the light they may throw on the applicant’s good faith, reasonable belief in the truth of the reliable informant’s information.” (People v. Schmidt, supra, at page 975.)
4. Untested Informants
Information received from an untested informant who does not qualify as a citizen informant is not considered reliable by itself. The typical untested informant is an
IV-13 anonymous voice on the telephone or a person who has been arrested on another matter and who wants to give information in hopes of gaining favor with the affiant or other law enforcement agents.
However, if that information can be corroborated by other facts indicating that reliance on the information is reasonable, the information will be considered reliable within the meaning of Aguilar and Illinois v. Gates. Thus, a valid warrant may issue based upon information from an untested informant if it is corroborated. (People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712; People v. Love (1985) 168 Cal.App.3d 104; and People v. Rooney (1985) 175 Cal.App.3d 634.)
For example, in People v. Zepeda (1980) 102 Cal.App.3d 1, a woman told officers that her husband had burglarized a Taco Bell on September 4th or 5th and got $1,200 to $1,300. She also said he burglarized another Taco Bell on October 26th and stole a safe which her husband and another man were cutting up in her garage. She gave a piece of the safe to the officers. Officers verified a Taco Bell burglary on September 4th in which $1,309 was taken and another Taco Bell burglary in which a safe was taken. This corroboration was set forth in the affidavit and was held sufficient to justify considering the woman’s information as reliable. Thus, issuance of a search warrant based thereon was upheld.
If similar information is received from two independent untested informants, they can be considered as corroborating one another and thus their information will be deemed reliable. People v. Balassy (1973) 30 Cal.App.3d 614, 621, states: “[O]ne “unreliable” informer’s statements may be corroborated by those of another, if they were interviewed independently, at a different time and place.” Similarly, People v. Green (1981) 117 Cal.App.3d 199, 205, states: “[C]orroboration of an unreliable informant’s statements may be met by those of another, if they were interviewed independently, at a different time and place.” (See also, People v. Sheridan (1969) 2 Cal.App.3d 483, 489; and People v. Terrones (1989) 212 Cal.App.3d 139, 147.)
In People v. Childress (1979) 99 Cal.App.3d 36, two independent anonymous phone callers told police they purchased marijuana from a described defendant at his residence. Officers corroborated this information by a “rap sheet” which showed defendant had prior narcotics arrests and by a one hour surveillance which showed three persons going to the back door of defendant’s residence, exchange something which the officers were unable to identify, and depart. The Court of Appeal held that the information from the untested informants was sufficiently corroborated by the rap sheet and surveillance to justify issuance of a search warrant. (See also, People v. Green (1981) 117 Cal.App.3d 199 re corroboration of untested informants.)
Another method of establishing that an untested informant is reliable is to have the informant personally swear to the truth of his statement before the issuing magistrate. This is discussed in Subsection C.6, below.
IV-14 The case of Illinois v. Gates may properly be considered an untested informant case since the initial informant’s tip in the case was an anonymous letter. Anonymous letters are considered the same as tips from untested informants. And, as even those cases which embrace the strict two prong test acknowledge, if an untested informant can be adequately corroborated, then a valid warrant may be issued. (People v. Superior Court (Johnson), supra, at page 712.)
Information from an untested informant and an unidentified citizen informant that there was heavy foot traffic at a location and verification by the affiant that the defendant lived at the location was held insufficient to justify a search warrant for the location for evidence of drug dealing. The Court of Appeal said that the affiant should have engaged in further investigation to substantiate his belief there was drug dealing taking place at the location. (Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1109.)
5. Statements Against Penal Interest of Suspects and Accomplices
A statement against penal interest is a statement in which the speaker admits the commission of a crime or the intention to commit a crime. (See Evidence Code section 1230.) Such a statement is considered to be both reliable and factually based for the purpose of satisfying the two prong test, particularly if the declarant did not know that he was making his statement to a police officer. This is true whether the statement inculpates only the person making it or whether it also inculpates others. If the affiant knows of such statements against penal interest, either personally or through a reliable informant, he should include them in the affidavit and specify the manner in which they were obtained.
The great significance attached to statements against penal interest is noted in People v. Mardian (1975) 47 Cal.App.3d 16, 31, as follows:
. . . [W]here the declarant is or may be the subject of a police inquiry and makes a statement potentially adverse to his interests, that statement, when reported by a reliable informant, satisfies both prongs of the Aguilar test. [Emphasis added.]
Other cases have also explicitly held that declarations against interest are reliable. Ming v. Superior Court (1970) 13 Cal.App.3d 206, 214, discussed statements of an accomplice made to an undercover officer and stated:
The utterances of a suspected accomplice, who exposed himself to prosecution because he has made declarations against a penal interest, can be relied upon without independent corroboration, to establish probable cause to conduct a search of another person, since such statements are “trustworthy” because they contain “an internal guaranty of reliability.”
The reliability of statements by an accomplice to an undercover operator, and the Ming case holding, were affirmed by the California Supreme Court in People v. Fleming (1981) 29 Cal.3d 698, 708, and the Court of Appeal case of People v. Aho (1985) 166
IV-15 Cal.App.3d 984, 991. Such statements are considered reliable both as to the person making them and to the other members of the criminal enterprise. See also People v. Christian (1972) 27 Cal.App.3d 554 wherein statements by a crime participant to an undercover officer were deemed reliable.
Statements against interest by an accused were discussed in People v. Aguirre (1970) 10 Cal.App.3d 884, 890-891: “Our Evidence Code allows reliance on such admissions by an accused as proof of the truth stated therein. This reflects the notion that such statements have a built-in reliability surrounding them which approaches the magnitude of first hand personal observation.”
In the case of In re Duncan (1987) 189 Cal.App.3d 1348, a suspected pedophile exchanged lewd photographs of children with an undercover officer and in an accompanying letter indicated he had additional lewd photographs of children. This was held sufficient to issue a search warrant for his residence for evidence that sexual exploitation of a child in violation of Penal Code section 311.3 had taken place (as authorized by Penal Code section 1524, subd. (a)(5)).
In People v. Miller (1978) 85 Cal.App.3d 194, the defendant told Internal Revenue Service agents he had secret compartments in his apartment and garage in which he stored illegal weapons. He also showed parts for the construction of a silencer and automatic weapons to one agent. Based upon these statements, a search warrant was obtained. The Court of Appeal held the warrant valid by declaring that these facts justified the conclusion that the defendant did possess illegal weapons in his apartment. The court rhetorically asked, “What more logical inference could be drawn from defendant’s own statements that he possessed illegal firearms and that he had constructed special hiding places for them?” (85 Cal.App.3d at page 205.) See also, People v. Dumas (1973) 9 Cal.3d 871, 885, in which the defendant told the informant that he (defendant) possessed stolen bonds and was trying to fence them, and Jones v. United States (1960) 362 U.S. 257, wherein defendants admitted to police officers they were narcotics users.
In People v. Brewer (2000) 81 Cal.App.4th 442, 451-459, a defendant who had been arrested but not advised of his Miranda rights made incriminating statements that he had five pounds of marijuana at his house in response to questions asked by sheriff’s deputies. These statements were included in an affidavit for a search warrant to search the defendant’s residence. The Court of Appeal held that so long as the statements obtained in violation of Miranda were not coerced, they could be used to support the issuance of the search warrant.
The foregoing cases -- except Jones and Brewer -- mainly involve situations in which the declarants were not in custody and did not know that their statements were being made to police officers or would be reported to police officers. Thus, the courts reason, the statements were made “before the declarants had an opportunity, or any apparent reason to fabricate or contrive a false story . . .” (Ming v. Superior Court (1970) 13 Cal.App.3d 206, 214; People v. Fleming (1981) 29 Cal.3d 698.)
IV-16 Statements against interest made by a suspect to a reliable informant who then relates the statement to the police retain their reliability. In Caligari v. Superior Court (1979) 98 Cal.App.3d 725, an officer surveilled an informant who met with a suspect. The suspect then went alone to an apartment and returned with cocaine. The suspect told the informant he got the cocaine from his supplier in the apartment. The informant, whose reliability was described and established by the officer, related to the officer the suspect’s statements regarding cocaine in the apartment. A search warrant was obtained for the apartment and was upheld by the Court of Appeal. Thus, hearsay declarations against interest related by a criminal suspect through a reliable informant to an officer/affiant retain their reliability. Or, put in another way, double hearsay by the suspect, through the informant, and to the affiant, is as reliable as if made by the suspect to the affiant directly. (Caligari, supra,at page 733.) Similar facts and a similar holding appear in People v. Love (1985) 168 Cal.App.3d 104, 110-111.
The courts have also held that an in custody accomplice who provides detailed information regarding his criminal activities with an outstanding suspect and admits that he has conspired with the outstanding suspect in the commission of other crimes is reliable. (See People v. Foster (1988) 201 Cal.App.3d 20, 24; People v. Hall (1974) 42 Cal.App.3d 817, 823; Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, fn. 7; and People v. Belmontes (1988) 45 Cal.3d 744, 767-769.)
An example of the use of statements against interest in an affidavit is set forth below in Subsection D.3.
6. Informant Sworn Before Magistrate
If an informant can give factual information but does not fit within any of the preceding categories of reliable informants, and his information cannot be shown reliable by corroboration, he may nevertheless be deemed reliable if he personally swears to the truth of his information before the issuing magistrate. The California Supreme Court held in Skelton v. Superior Court (1969) 1 Cal.3d 144, that if the magistrate issuing the warrant was able to observe the demeanor and appearance of an informant brought before him, and question him if necessary, the magistrate could then personally determine that the informant was credible. Therefore, no additional showing of credibility was necessary.
In a sense, this procedure is analogous to a witness testifying in court and a judge basing his verdict upon his assessment of that testimony. Just as a judge can find a defendant guilty of a crime based upon the testimony of a single witness, so can a magistrate find probable cause to search based upon the sworn statement of an informant appearing before him. If the magistrate does not believe the informant to be credible, he or she then will not issue the requested search warrant.
In taking an informant directly to the issuing magistrate, the following procedure is suggested:
IV-17 a. The statement of the informant should be set forth in the form of an affidavit on a separate piece of paper. It should be headed “Statement of (informant’s name).” The statement should include the identity of the informant, his information, and the manner in which he obtained his information. It should be as detailed and factual as possible, and demonstrate that he is speaking from personal knowledge. It should be written in the first person, i.e., “I saw . . .” b. The police officer/affiant will prepare his own affidavit in support of the warrant. He will attach and incorporate by reference in his affidavit the informant’s statement and describe the manner in which he obtained that information from the informant. The following is an example:
. . . On [DATE], at 2:10 PM, your affiant was introduced to Mr. Lee Stokes who was then in the custody of the Los Angeles Police Department. Your affiant was informed by fellow officer Doreen Taras, No. 12642, LAPD Pacific Division, that Mr. Stokes had been arrested earlier that day for possession of heroin. Your affiant spoke to Mr. Stokes. He stated he would assist your affiant in locating narcotics dealers in the Venice area. He then related the information set forth in the “Statement of Lee Stokes” which is attached hereto as Exhibit No. 1 and incorporated as if fully set forth herein.
The affiant will then complete his own affidavit. The statement of the informant will be plainly marked Exhibit No. 1 and attached to the officer’s affidavit. c. Both the affiant and the informant will then appear before the magistrate. The magistrate should read the entire affidavit, including the informant’s statement. The informant should be introduced to the magistrate, the informant should be placed under oath, and the magistrate should be permitted to question the informant, if he wishes, and make additions or corrections to the informant’s statement. The last line of the informant’s statement should read, “I swear under penalty of perjury that this statement is true.” He should then affix his signature and the date. Underneath the informant’s signature, the magistrate should write, “I have examined (informant’s name) under oath and find his/her statement to be truthful.” This should be followed by the magistrate’s signature and the date. d. The name of the “informant/affiant” should also be inserted on the face of the search warrant along with the officer/affiant’s name. Penal Code Section 1529 prescribes that the search warrant should name on its face “every person whose affidavit has been taken.” However, if it is desired to keep the name of the “informant/affiant” confidential until after the warrant is returned and becomes a public record, then the
IV-18 “informant/affiant’s” name need not be placed on the face of the search warrant. (People v. Sanchez (1972) 24 Cal.App.3d 664, 678.)
e. The other forms should be sworn to and signed by the affiant and the magistrate in the usual manner. (See Chapter VII on “Mechanics of Preparation.”)
It is helpful to advise the informant of what will be required of him prior to his appearance before the magistrate.
Note that the questioning of the informant by the magistrate is not part of the affidavit. The questioning is only for the purpose of allowing the magistrate to determine if the informant is truthful. If the informant says something during the questioning that should be included as part of the affidavit, then that information should be added to the informant’s written statement. A conversation between the magistrate and the informant is not considered as a substantive part of the affidavit unless it is written down so as to become part of the signed affidavit.
The use of informants sworn before magistrates may appear cumbersome but works well in practice. Furthermore, this procedure forecloses later attacks upon the reliability of the informant or upon the reasonableness of the affiant/officer relying upon the informant. Thus, this procedure should be used whenever appropriate. The use of an informant sworn before a magistrate works particularly well when using the “oral affidavit” procedure for obtaining a search warrant. This is discussed in detail in Chapter IX.
7. Information about Informant’s Background and Motivation to Assist Police
Must the affidavit include information about the informant’s criminal background and the motives for the informant to provide information to the police? Is the failure to disclose all these details in the affidavit a “material omission?”
In People v. Cobb (1983) 146 Cal.App.3d 290, the affidavit in support of a search warrant was based on the information provided by an informant, but the affidavit omitted negative information about the informant’s background, including two prior felony convictions, his current probationary status, and the fact that his sole motivation in assisting the police was to help a friend obtain leniency in connection with another narcotics prosecution. The Court of Appeals held that the information omitted from the search warrant was material.
However, the weight of authority seems to be that this information is not material. Other cases have held that details of an informant’s criminal past need not be set forth if the affidavit makes it clear that the source of the information is not a citizen informant but a police tipster. In People v. Kurland (1980) 28 Cal.3d 376, the California Supreme Court stated this concept as follows:
IV-19 A “citizen-informant” is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminal conduct. . . Thus, experienced stool pigeons or persons criminally involved or disposed are not regarded as “citizen informants” because they are generally motivated by something other than good citizenship. (Italics in original.)
Such persons frequently have criminal records and a history of contact with the police. Often they are free only on probation or parole or are themselves the focus of pending criminal investigations. All familiar with law enforcement know that the tips they provide may reflect their vulnerability to police pressure or may involve revenge, braggadocio, self-exculpation, or the hope of compensation. (Citations) The details of their criminal pasts are not necessary to place the magistrate on notice of their potential unreliability. (Cite.)
Both an issuing magistrate and a reviewing court must initially assume that information from such sources is unreliable for purposes of probable cause. Such a rule alerts the magistrate to the very danger defendant urges -- that the statements of tipsters from “criminal society” may receive unwarranted weight.
We therefore conclude that, in most cases, the issue of possible unreliability is adequately presented to the magistrate when the affidavit reveals that the affiant’s source of information is not a “citizen-informant” but a garden-variety police tipster. In such circumstances, predictable details of the informant’s criminal past will usually be cumulative and therefore immaterial. (Kurland, supra, at pages 393-394.)
Other cases holding that an informant’s criminal background need not be disclosed in the search warrant affidavit include People v. Helmquist (1984) 161 Cal.App.3d 609, 618; People v. Lopez (1985) 173 Cal.App.3d 125, 134; People v. Mayer (1987) 188 Cal.App.3d 1101, 1122; People v. Crabb (1987) 191 Cal.App.3d 390, 395; People v. Webb (1993) 6 Cal.4th 494, 522; and People v. Carpenter (1997) 15 Cal.4th 312, 362.
Note that even if a reviewing trial court should decide that the omissions in the search warrant affidavit are material, then an “add and retest” procedure pursuant to Franks v. Delaware (1978) 438 U.S. 154 should be implemented as described in Chapter XI. Under this procedure, the reviewing trial court will reconsider the affidavit taking into consideration the information that was not included in the original affidavit. If the original magistrate would still have issued the warrant, then the search warrant is upheld. Since the omitted information would normally be details of the informant’s criminal background and relationship with the police that the issuing magistrate could have inferred from the information presented in the original affidavit, the search warrant should be upheld. Even if a motion to quash the warrant were granted, the evidence could still be admitted under the good faith exception of United States v. Leon,supra, (1984) 468 U.S. 897.
IV-20 8. Other Sources of Information -- Official Channels
In some cases, it is desirable to include information obtained from sources such as the Department of Motor Vehicles, telephone company, utility companies, court records, business license records, etc. Often this information is helpful in establishing that a particular suspect lives at a particular place or that a vehicle is registered to a certain suspect at a certain address, etc. Such information might be set forth as follows:
. . . On [DATE], I checked with the Department of Motor Vehicles and was informed that the yellow van described above is registered to James Baker, 6230 Sylmar Avenue, Van Nuys.
. . . On [DATE], your affiant was informed by his fellow investigator, Carole Zisman, No. 82944, Wilshire Division, that she had just checked with the Southern California Gas Company and was informed that the utilities at 417 South Hill Street, Los Angeles, were listed to Mr. William Shaffer.
. . . On [DATE], I contacted Pacific Telephone Company and spoke with Mr. Ed Taras who stated he is a security agent for Pacific Telephone Company and that according to company records the telephone number (213) 288-1251 is listed to Mr. Brad Rosenberg, 9355 Burton Way, Beverly Hills, 90210.
It is not necessary to specifically establish the reliability of the clerks providing information from records, since they are merely relating information contained within business records in order to aid the police and have no reason to lie. In this sense, they are citizen informants.
It is not permissible for officers to obtain from the telephone company the name and address of the holder of an unlisted telephone number without using a search warrant or subpoena. The California Supreme Court has held that such information as to an unlisted number is protected by a “reasonable expectation of privacy.” (People v. Chapman (1984) 36 Cal.3d 98.) A subpoena or search warrant is also necessary if officers wish to obtain records of telephone calls made from a particular telephone whether or not that telephone number is unlisted. (People v. McKunes (1975) 51 Cal.App.3d 487.)
Please note, however, that under federal law, now applicable to suppression motions in California pursuant to Proposition 8, telephone records obtained from phone companies without a search warrant or subpoena are admissible in evidence. (See Smith v. Maryland (1979) 442 U.S. 736.) Thus, even if officers do obtain such records improperly under California law, i.e., without a search warrant or subpoena, such evidence is still admissible in court and in an affidavit for a search warrant for other evidence.
This occurred in the case of People v. Bencomo (1985) 171 Cal.App.3d 1005, wherein officers -- without a search warrant or subpoena -- obtained subscriber information from a phone company. This information was then included in an affidavit in support of a
IV-21 search warrant for additional evidence. The Court of Appeal held that since the telephone subscriber information was not excludable under federal law, it could not be stricken from the search warrant affidavit and could properly be considered in support of the search warrant. (See People v. Bencomo (1985) 171 Cal.App.3d at page 1015.)
Despite the holding of Bencomo, officers should obtain a search warrant or subpoena for telephone records since it is improper under California case law not to do so (see People v. Chapman, cited above) even though such information would not be excluded per Proposition 8.
D. Establishing Factual Basis of Information -- Personal Knowledge
Once the reliability of an informant has been established, it is still important to “allege the informant’s statement in language which is factual rather than conclusionary and establish that the informant spoke with personal knowledge of the matter contained in the statement . . .” (People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711; Illinois v. Gates (1983) 462 U.S. 213 at page 234.)
The following examples set forth factual information and show personal knowledge.
1. Confidential Reliable Informant
. . . On [DATE], your affiant met with a confidential and reliable informant. Your affiant believes this informant to be reliable because he/she has given your affiant information on three prior occasions within the past two months, which has proven to be true on each occasion and resulted in the recovery of at least two stolen automobiles, numerous stolen auto parts, and the arrest of at least one person. Your affiant does not wish to give further details as to past information provided by this informant for fear it will furnish clues to his/her identity. Your affiant wishes to keep the identity of this informant confidential because your affiant believes disclosure of his/her identity would impair his/her future usefulness to law enforcement officers and endanger his/her life. [Reliability and confidentiality now established.]
The informant told your affiant that within the past week he/she had been inside the garage at 8640 California Avenue, South Gate, and had observed three VW Jetta automobiles. He/she stated that two were black and one was red. All had the engines removed and were partly “stripped.” He/she recalled that the license plate of one began “RYO.” Another had large flower decals on the rear windows.
He/she went inside the house at the location and observed several VW tires and wheels stacked within the house. He/she also saw several auto radios and auto tape players.
He/she told your affiant that while inside the house he/she saw a man whom others present called “Stubbs.” He/she described “Stubbs” as an African-
IV-22 American male, approximately 25-30 years, 4’10”, 140 lbs, black hair and eyes, mustache and goatee.
He/she stated that Stubbs appeared to live in the house. Stubbs answered the phone when it rang, took beer from the refrigerator, had keys to a lock on the garage door, and also referred once to the premises as “my house.” He/she also saw Stubbs go to the west wall of the living room and remove a board revealing a compartment within the wall. Inside the wall, the informant saw several wallets and credit cards.
The informant repeated that everything he/she related was based upon his/her own personal observations.
The affiant would then add other information to the affidavit, including a description of the premises, information re the theft of the three VW’s, wallets and credit cards, information concerning the identity and possible criminal record of “Stubbs,” etc.
It is not uncommon, however, for informants to fail or refuse to give the underlying sources of their information. Their information may nevertheless be valuable if sufficiently detailed or corroborated. (See Section F of this chapter and Illinois v. Gates (1983) 462 U.S. at page 234.)
An affiant should encourage his informant to state the source of his information. If the informant will only say, “I know what I’m talking about,” or “I know everything about it,” etc., this should be included in the affidavit as it implies personal knowledge.
As a general rule, the affiant should relate all relevant information given him by the informant. However, if certain details will provide clues to the informant’s identity, they may be omitted providing the informant’s statement still supports the issuance of the warrant. In such a situation, the following statement should be added. “Your affiant does not wish to give the informant’s statement in greater detail for fear it will provide clues to his/her identity.” The phrase stating the affiant’s desire to keep the informant confidential should also be included within the affidavit, as noted previously.
Information should not be omitted if doing so will make the affidavit misleading. An omission of material information may result in a warrant being declared invalid. See Chapter XI, Court Proceedings.
The case of People v. Hobbs (1994) 7 Cal.4th 948 allows the sealing of information that might provide clues to the informant’s identity. See Chapter VI, Section I, Sealing the Affidavit to Protect Informant’s Identity—“Hobbs Warrants.”
IV-23 2. Citizen Informant
The source or factual basis of the citizen’s information must be set forth just as information from any informant, i.e., was it the informant’s personal observations, something he heard, etc.?
. . . On [DATE], at 7:15 PM, your affiant received a phone call from a citizen informant who gave his name and address and spoke briefly to him. Your affiant then went to the residence of this citizen informant in the City of Torrance. The informant told your affiant that at approximately 6:30 PM that day, he had observed two men pushing a blue Chrysler into the garage at 825 Maple Street, Torrance.
The informant thought something was peculiar because the driver’s window was smashed out, and the two men kept looking around. He wrote down the license number of the car and the address of the garage. Your affiant was then given a piece of paper by the citizen informant. The paper had the following written upon it: “Chrysler 1ABC123 825 Maple Street.”
The informant then accompanied your affiant in his police car and pointed to the garage which he saw the car pushed into. Your affiant noted the address of that location to be 825 Maple Street, Torrance, and observed the location to be as described above on the face sheet of this search warrant and affidavit form.
Your affiant has had no prior contact with this citizen informant. The informant was not under arrest or a suspect in any crimes. He stated that he gave the information because he “just wanted to help the police” and “didn’t want to live in a neighborhood with thieves.” The informant appeared to be a citizen acting in the interest of law enforcement and for no other reason. (Status as citizen informant established)
Your affiant checked the license number given by the citizen informant through official police channels and was informed that license number 1ABC123 was registered to a 2005 Chrysler 300, and that the car had been reported stolen on [DATE], at 8:30 AM, and was still outstanding.
The affidavit would be prepared in a similar manner if a patrol officer had received the information from the citizen and transmitted it to the affiant. The affiant would state that he received the information from a fellow officer who received it from a citizen informant. It would be necessary to set forth the identity of the other officer, and the manner in which he received the information from the citizen informant. One reliable informant may transmit information received from another reliable informant with no loss of reliability provided the basis for the reliability of each informant is articulated. (People v. Hogan (1969) 71 Cal.2d 888, 891; People v. Senkir (1972) 26 Cal.App.3d 411, 418, and Caligari v. Superior Court (1979) 98 Cal.App.3d 725, 727.)
IV-24
The name of the citizen informant need not be stated in the affidavit (People v. Lombera (1989) 210 Cal.App.3d 29, 32), but may be subject to disclosure during later court proceedings. (See Chapter VI concerning protecting the identity of informants.) The identity of the informant may be further disguised in the affidavit by the use of a joint pronoun: “he/she told your affiant . . .”
3. Declaration Against Interest
. . . During the course of an undercover narcotics investigation, your affiant was introduced to “Al” on [DATE], at 2:15 AM in Denny’s Restaurant in West Los Angeles. “Al” appeared as described on the face sheet of this affidavit.
Your affiant stated to Al, “I hear you can do keys.” Al replied, “You look cool. How many do you want?” Your affiant replied, “How much do you charge? I won’t pay over $15,000 each, and I don’t want to stay in Los Angeles any longer than I have to.” Al replied, “I’m dealing out of my pad, and can deliver whenever I see the cash.” Your affiant then stated, “I’ll want 10 keys, but I need 24 hours to get the cash. Can you do it?” Al replied, “It’s cool. Meet me here tomorrow night.” Your affiant and Al then carried on a general conversation for a few minutes and departed separately.
The affiant in the foregoing example would be justified in believing that “Al” did have large quantities of cocaine at his residence. He should also state that in his expert opinion the expression, “do keys,” means “sell kilos of cocaine,” and that “It’s cool” means “the transaction is agreed upon.” He should also state that $15,000 is the current price of a kilo of cocaine, and that large-scale dealers very often deal from their residence. (People v. Johnson (1971) 21 Cal.App.3d 235, 243; People v. Freeny (1974) 37 Cal.App.3d 20, 26; and People v. Sanchez (1981) 116 Cal.App.3d 720, 727.)
4. Observations of the Affiant
A legally sufficient affidavit may be based solely upon the observations of the affiant. Begin with a statement of identity, training, and experience, as discussed in Section B, above, and then continue with the affiant’s observations.
. . . On [DATE], at 6:30 PM, your affiant was walking a foot patrol and approaching 6542 Miles Avenue, Huntington Park. Your affiant paused briefly by a high hedge and was able to see through a thin spot in the hedge. Your affiant observed a 2005 Chevrolet automobile containing two men backed into the driveway at 6542 Miles Avenue. The car was backed into the driveway in such a manner that the trunk was as close to the front door of the house as possible, without moving the car off the driveway. The trunk was approximately 15 feet from the front door.
IV-25 The two men, the auto, and the house at 6542 Miles Avenue were observed to be as described above on the face sheet of this affidavit.
Your affiant then observed the two men to exit the auto, open the trunk, and begin carrying packages into the house, pausing briefly to open the door of the house with a key. Your affiant observed them to quickly carry approximately 40 to 50 packages into the house. The packages were each wrapped in either red or green cellophane and were approximately 2”x 4”x 10”. Your affiant has seen similar packages on numerous occasions both on the street and in training, and on those occasions where they were seized the contents were analyzed as marijuana. The packages appeared to be “kilo bricks” of marijuana to your affiant.
The hedge by which your affiant originally made his observations runs between 6542 Miles Avenue and 6548 Miles Avenue next door. Your affiant stood at the end of the hedge where it stops at the public sidewalk. This is an area open to public access.
Your affiant believes, based upon his training and experience, and the facts contained within this affidavit, that large-scale traffic in marijuana is being conducted by the two men described above using the auto and residence described. Your affiant believes that the items sought as described above on the face sheet of this affidavit are associated with large-scale trafficking in marijuana, and will be found on the person and within the vehicle and premises to be searched.
There are many instances when an affidavit can be based solely upon the observations of the affiant. He must, however, describe his observations in detail as was done in the example above. Further, it should be made clear in the affidavit that the affiant committed no illegal acts in making his observations. Such observations cannot be used in an affidavit and will be excised from the affidavit during 1538.5 proceedings, unless they were not illegal under federal law. (See Chapter XI, Court Proceedings.)
Note, however, that a “technical trespass” such as walking onto a suspect’s yard or porch or walking in the common area of an apartment house is not considered an illegal act. (People v. Zichwic (2001) 94 Cal.App.4th 944, 953; People v. Rice (1970) 10 Cal.App.3d 730, 739; and People v. Walker (1969) 276 Cal.App.2d 39, 42.) Views from areas of public use such as pathways or driveways are not illegal even though they may be technically private property. Officers may lawfully make observations from areas open to public use. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629.) Or, as stated in People v. Terry (1969) 70 Cal.2d 410, 427: “Police officers in the performance of their duties may, without violating the Constitution, peaceably enter upon the common hallway of an apartment building without a warrant or express permission to do so. [Citation.] Even if such an entry constitutes a trespass, a simple trespass without more does not invalidate a subsequent search and seizure.”
IV-26 E. Double Hearsay
Double hearsay is perfectly acceptable for use in affidavits for search warrants. “We have concluded that such hearsay upon hearsay does not necessarily, or as a matter of law, impose a Fourth Amendment taint upon a search warrant based, in whole or in part, upon it.” (People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 469.) Thus, information related by party one to party two and by party two to the affiant may be used in a search warrant affidavit. The reliability of such information will be determined by the reliability of the statement by party one, the reliability of party two, who acts as a conduit, and any corroboration. (See People v. Superior Court (Bingham), above; Caligari v. Superior Court (1979) 98 Cal.App.3d 725; and People v. Love (1985) 168 Cal.App.3d 104, for examples of the use of double hearsay.)
F. Corroboration -- Detailed Information; Innocent Behavior as Corroboration
Failure to satisfy one or both prongs of the Aguilar test may be excused “if the supporting affidavit also recites facts indicating that reliance on the information is reasonable.” (People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712.) In other words, if the information supplied by the informant can be sufficiently corroborated, it can be taken as true.
Illinois v. Gates places great significance upon corroboration. “Our decisions applying the totality of the circumstances analysis outlined above have consistently recognized the corroboration of details of an informant’s tip by independent police work.” (462 U.S. at page 241.) Illinois v. Gates recognizes that corroboration may be provided by non-criminal conduct. “[I]nnocent behavior frequently will provide the basis for a showing of probable cause; . . . the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-criminal acts.” (Illinois v. Gates, supra, at fn. 13.)
Gates also pointed out that if significant portions of an informant’s tip which can be verified are verified, it is reasonable to believe that the unverified portions are also true. (462 U.S. at page 243.) Also, anonymous tips which relate not only to existing conditions, but also predict future actions of suspects are accorded great weight if those future actions occur as predicted.” (462 U.S. at page 245.) The case of People v. Murtha (1993) 14 Cal.App.4th 1112, also held that an informant’s tips may be considered reliable if they predict future activity that does occur as predicted. (Murtha at page 1122.)
Corroborating information can be supplied by other informants, by the affiant himself, by other officers, or by any means which shows the information given is reliable. Often, additional investigation or surveillance by the affiant and other officers will supply the necessary corroboration, and together with an informant’s statement, will establish probable cause for the issuance of the warrant, even though the original information alone or the corroboration alone would have been insufficient to justify issuance of the warrant. This was done in People v. Benjamin (1969) 71 Cal.2d 296, 301-302:
The affiant and his fellow officers, not content to rest their case for the issuance of the warrant upon an untested informant’s statement, here undertook a diligent and careful
IV-27 investigation in order to amass incriminating facts, and the results of the examination are reflected in the affidavit by means of detailed and precise allegations grounded in personal observation.
Untested informants can corroborate one another if they independently relate facts not known to the general public. (People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712; People v. Sheridan (1969) 2 Cal.App.3d 483; People v. Green (1981) 117 Cal.App.3d 199, 205; and People v. Balassy (1973) 30 Cal.App.3d 614, 621.)
Corroboration which merely goes to “pedestrian facts” such as a suspect’s physical description, his residence, and his vehicles may be insufficient to corroborate an untested informant. (People v. Johnson (1990) 220 Cal.App.3d 742, 749.)
1. Use of Corroboration
Assume an untested informant, e.g., an anonymous phone caller, tells the affiant, “Edward Kane just got a big shipment of heroin and is going to cut and package it at the “LaMer Motel” in Santa Monica on Main Street. Because the informant is untested and does not state how he acquired his information, this statement alone does not satisfy the Aguilar two-prong test or the totality of circumstances test. However, if the affiant can sufficiently corroborate this information, probable cause for a warrant can be established. Attempts at corroboration would normally involve law enforcement placing Edward Kane under surveillance. If Edward Kane were observed to engage in an apparent narcotics transaction, or if foot traffic indicative of narcotics sales were observed at this hotel room, that would be sufficient corroboration.
2. Detailed Information
Information from an informant will be considered factual and based upon personal knowledge if it is so detailed that the inference can be drawn that the informant must have personal knowledge. For example, if the informant states that “Ben Gold is fencing stolen property at his radio repair shop on Hollywood Boulevard,” and then goes into great detail about the layout of the back room, the hiding places in the attic, the type of items that Ben will buy, the prices paid, the method of payment, the method Ben uses to avoid detection, etc., this detail will be presumed to have resulted from the personal observations of the informant even though he/she may be unwilling, or fails, to state this explicitly. (People v. Ramirez (1984) 162 Cal.App.3d 70; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 713-714; People v. Mardian (1975) 47 Cal.App.3d 16, 33; People v. Stewart (1983) 140 Cal.App.3d 11, 15; and People v. McFadin (1982) 127 Cal.App.3d 751, 764.)
Detailed information is especially meaningful if it relates information that would be known only to one who was in personal contact with the criminal activity being investigated and could not be gained from newspaper articles or other sources available to the general public. Illinois v. Gates (1983) 462 U.S. 213 stresses the significance of a range of detailed information, as follows:
IV-28
Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. (462 U.S. at page 234. Emphasis added.)
Finally, the anonymous letter contained a range of details relating not just too easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. (462 U.S. at page 245. Emphasis added.)
G. Staleness
1. General
It is important to make clear in the affidavit that the information set forth is current and thus can reasonably be expected to reflect the circumstances existing with respect to the place to be searched and items to be seized as of the time the affidavit is signed. To a large extent, whether or not information is considered “stale” depends upon the crime being investigated and the items sought. For example, a narcotics dealer may not possess narcotics twenty days after a controlled buy was made, but a burglar will probably still possess his burglar tools and some items of loot (depending upon exactly what was taken) 30 days or more after the crime.
Updating old information may be accomplished by presenting recent corroborating evidence that shows the criminal conduct under investigation is still continuing or that the items sought are still at the place to be searched. (People v. Dumas (1973) 9 Cal.3d 871 at page 885; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.)
Information which might alone be considered stale and no longer necessarily reflecting an existing situation may be updated by additional information which shows that the original information is still good.
In Hemler v. Superior Court (1975) 44 Cal.App.3d 430, undercover agents skin-searched an informant and surveilled him as he bought heroin from a suspect (a controlled buy). They then waited 34 days before obtaining a search warrant for the suspect’s residence. The warrant was declared invalid since the court felt there was no reason to believe the suspect was still selling heroin 34 days later. If the agents had acted promptly, the warrant would have been valid.
2. Narcotics Cases
Narcotics cases in which information was not considered stale include People v. Mesa (1975) 14 Cal.3d 466 -- six days not stale; Brown v. Superior Court (1973) 34 Cal.App.3d 539 -- nine days delay between arrest of suspect and search of his home for narcotics not stale where defendant in jail and not able to remove the narcotics; People v.
IV-29 Hernandez (1974) 43 Cal.App.3d 581 -- 12 days on the fringe of unreasonableness, but warrant upheld; People v. Thompson (1979) 89 Cal.App.3d 425 -- 10-16 days not stale where narcotics activity ongoing and continuing; and Alexander v. Superior Court (1973) 9 Cal.3d. 387 -- information one year old may not be stale if the affiant can show “special circumstances that would justify a man of ordinary prudence to conclude that the illegal activity had persisted for more than a year.” (9 Cal.3d at page 393.) In the case of People v. Brown (1985) 166 Cal.App.3d 1166, officers received information from a citizen informant regarding a field of two-inch tall cultivated marijuana plants. They waited four to six weeks before getting a search warrant issued. The Court of Appeal held the warrant valid and specifically found it was not stale, reasoning that the plants would still be too small to have been harvested.
In People v. Hulland (2003) 110 Cal.App.4th 1646, officers obtained a search warrant for defendant’s residence 52 days after a single undercover purchase of narcotics from defendant. The Court of Appeal held that the delay of 52 days clearly made the information stale. Further, the court found that the good faith exception did not apply, since the affidavit was so lacking in probable cause that it would be unreasonable for an officer to believe that probable cause existed. The evidence seized pursuant to the warrant was ordered suppressed.
In People v. Hirata (2009) 175 Cal.App.4th 1499, an 82-day delay between a drug transaction involving the defendant and the issuance of a search warrant for the defendant’s residence was held to be stale where there was no evidence of additional transactions involving the defendant during the 82-day period. The Court of Appeal also ruled that the good faith exception did not apply because a reasonably well-trained officer would have recognized that probable cause in the case had grown stale by the time the warrant was sought and executed. The trial court’s ruling suppressing the evidence was affirmed.
3. Special Fact Situations
In People v. Carrington (2009) 47 Cal.4th 145, probable cause existed to believe that the defendant had committed two business burglaries two months before a search warrant was issued for her residence. The California Supreme Court stated that “No bright-line rule defines the point at which information is considered stale. (Cite.) Rather, ‘the question of staleness depends on the facts of each case.’ (Cite.)” (47 Cal.4th at pages 163-164.) In rejecting the defendant’s argument that the information contained in the affidavit was too stale to provide probable cause for issuance of the search warrant, the California Supreme Court stated the following:
“In the present case, the checks from NDN Enterprises still were outstanding two months after the burglary. In view of the nature of the items sought—the outstanding checks still could be forged and cashed, and a key to Blackard Designs still could be useful to defendant—there existed a fair probability that these stolen items remained at defendant’s residence despite the passage of time.” (47 Cal.4th at page 164.)
IV-30
The following cases have also upheld the validity of a search warrant despite the passage of a substantial period of time between the crime and the issuance of a search warrant:
• People v. Superior Court (Brown) (1975) 49 Cal.App.3rd 160 (31 days had passed from the date of a burglary which the defendant was reasonably believed to have committed to the date that a search warrant was issued for the defendant’s residence). • People v. Miller (1978) 85 Cal.App. 3rd 194 (11 days had passed after the defendant committed a robbery, burglary, and kidnapping involving the use of a fictitious license plate, guns, and various items of disguise, and the issuance of a search warrant for his apartment and two autos). • People v. Superior Court (Bingham) (1979) 91Cal.App.3rd 463 (several months had passed between the observation of three items of property allegedly destroyed in a fire in defendant’s possession and the issuance of a search warrant for defendant’s residence). • People v. Cooks (1983) 141 Cal.App.3rd 224 (evidence relating to multiple murders occurring over a period of months would still be at the premises to be searched despite the passage of a substantial period of time and despite the passage of eight days since the receipt of the primary information upon which the affidavit was based). • United States v. Jacobs (9th Cir. 1983) 715 F.2d 1343 (nearly four-month delay between the earliest bank robbery committed by the defendant and the issuance of a search warrant for articles of clothing worn during a bank robbery). • People v. Frank (1985) 38 Cal.3rd 711 (upholding a search warrant for evidence relating to a murder issued seven months after the crime was committed). • People v. Stipo (2011) 195 Cal.App.4th 664 (over six months had passed between a search warrant issued to obtain defendant’s Internet Protocol (IP) number from his internet provider and a second search warrant issued to search defendant’s residence for his computer equipment and computer records).
In appropriate cases in which staleness might appear to be an issue, the affiant should specifically state that despite the passage of time he still believes the items sought will be found at the places indicated, and he should give his reasons for this opinion, i.e., past experience with this sort of crime, large number of items taken, items will be retained for use in future offenses, no reason for suspect to dispose of items and it has value to him, etc. See, for example, People v. Cletcher (1982) 132 Cal.App.3d 878 and People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, re search warrants for stolen property taken several months earlier (Bingham) and two years earlier (Cletcher); and Andresen v. Maryland (1976) 427 U.S. 463, 478, fn. 9, which upheld a search warrant for real estate records three months after fraud committed; and People v. Webb (1993) 6 Cal.4th 494, 521, involving a three and one-half month delay between the commission of a double murder and the issuance of a search warrant for a car used by the suspected murderer at the time of the murders, where the affidavit noted that the suspect had been in custody on drug charges during the three and one-half months
IV-31 4. Information as to Suspect’s Residence
If a search warrant is for a suspect’s residence, the affidavit should clearly state facts establishing that the suspect does in fact reside at the location to be searched. Such facts might include surveillance; subscriber information from utility companies in the suspect’s name; previous law enforcement contacts with the suspect at the residence; probation, parole, or other law enforcement records; statements from neighbors, family members, or informants; admissions by the suspect, etc. Failure to properly connect a suspect to the location to be searched could result in the search warrant being quashed and the evidence seized being suppressed. (See People v. Hernandez (1994) 30 Cal.App.4th 919.)
However, appellate courts have upheld search warrants even where the allegation of residence in the premises to be searched appears conclusionary or stale or has been omitted from the affidavit.
For example, in People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, the affidavit stated only that the premises to be searched “is now, and has been at all times mentioned herein, occupied by [the suspected burglar].” The Court of Appeal rejected the defendant’s argument that the affidavit was insufficient in that this allegation of residence was conclusionary. In finding this allegation of residence to be sufficient, the Court of Appeal stated that “Hearsay reports of one’s place of dwelling are easily verified and thus not inherently suspect in the same way as commonly circulated reports of criminal activities which may well be the product of nothing ‘more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.’ Citation.” (People v. Superior Court (Brown) 49 Cal.App.3d at page 167.)
In People v. Gibson (2001) 90 Cal.App.4th 371, 380-381, the defendant was convicted of multiple counts of pimping based, in part, on evidence recovered from his residence pursuant to a search warrant. The search warrant for defendant’s residence was issued on June 7, 1999, but the last police surveillance linking defendant to the location was in January, 1999. The defendant claimed that this evidence was too remote in time, i.e. stale. The Court of Appeal upheld the search warrant, noting that police surveillance had clearly established the defendant resided in the residence between October, 1998 and January, 1999. Further, there was no reason to believe that the defendant had moved; so it was reasonable for the magistrate to conclude that in light of the known facts, the defendant’s residence had not changed in the preceding 5-6 months.
In People v. Bell (1996) 45 Cal.App.4th 1030, the affiant failed to include any information in the affidavit linking the residence to be searched to the suspect. The Court of Appeal nevertheless upheld the search on good faith grounds stating that, “while linking the Bells to the location to be searched is obviously not a mere technicality, it is in most cases of this nature, a routine matter.” (45 Cal.App.4th at page 1056.)
IV-32 5. Specific Time Reference
Finally, it is important to set forth a time reference for certain activity that is included in the affidavit. In People v. McDaniels (1994) 21 Cal.App.4th 1560, an affidavit to a search warrant stated that an untested informant had made a controlled buy “within the past seventy hours.” The trial court found the affidavit fatally defective because it did not give a reference date linked to the phrase “within the past seventy hours.” The Court of Appeal reversed the trial court and upheld the search warrant, stating that “...a `common sense’ approach easily reveals the reference point to be the time when the affidavit was signed.” (21 Cal.App.4th at page 1565.) The Court of Appeal also found that, in any event, the Leon good faith exception applied. To avoid this type of problem, the affidavit should clearly set forth either the date or a specific time frame when certain activity took place. The following are examples:
. . . On [DATE], your affiant observed...
. . . The informant stated that he/she was inside Lorelle Taras’ residence on a specific date your affiant does not wish to disclose but which was between the dates of [DATES] . . .
. . . The informant stated that on a date after [DATE], he/she was inside Megan Turcat’s residence and observed . . .
H. Use of Police Reports as Exhibits in Affidavit
In Chapters II and III, the use of exhibits to assist in describing the items to be seized and the locations to be searched was discussed and recommended. It is also helpful to use exhibits in establishing probable cause for the search. The most commonly used exhibits are crime reports and follow-up reports. For example, in a search for described items of stolen property, the affiant may attach and incorporate the original crime report rather than recounting the details of the offense. The following language might be used:
. . . On [DATE], I received and read an official LAPD Crime Report, DR. No. 10- 187171, consisting of three pages, which is attached hereto as Exhibit No. 1 and incorporated as if fully set forth herein . . .
If the exhibit or report is physically attached to the affidavit, it may be assumed that the issuing magistrate considered all the material presented in support of the application for the search warrant, even in the absence of an incorporation clause in the affidavit. “The absence of an incorporation clause is not a fatal defect. Incorporation by reference is a technical phrase, and police officers are not expected to use a lawyer’s terminology… Moreover, ‘absent some palpable indication to the contrary, it is assumed the magistrate considered all the material presented him in support of an application for search warrant.’ (Cite)”. People v. Stipo (2011) 195 Cal.App.4th 664, 670.
IV-33 Since the crime report is prepared by police officers and is usually based upon their own observations and statements and the observations of the “citizen informant” victim and witnesses, it is considered reliable. The affiant would then relate the details of his subsequent investigation or, if he had prepared a follow-up report, attach and incorporate that report.
. . . Acting upon the information contained within Exhibit No. 1, your affiant and his fellow officers conducted an investigation as set forth in the seven page LAPD Investigator’s Report which is attached hereto and incorporated as Exhibit No. 2 . . .
Everything contained within Exhibit No. 1 and No. 2 is now part of the affidavit just as if it had been written out fully in the affidavit itself.
Other exhibits such as arrest reports, buy notes, chemists reports, notes made by civilian witnesses, rap sheets, etc., may also be attached and incorporated. C.I.I. rap sheets are relevant if they show prior arrests or convictions for the same crimes currently under investigation. Such records can be considered as evidence that the suspect is currently engaged in the same criminal activity as shown on the C.I.I. report. (People v. Aho (1985) 166 Cal.App.3d 984; People v. Kershaw (1983) 147 Cal.App.3d 750, 760; People v. Sanchez (1972) 24 Cal.App.3d 664, 667; People v. Childress (1979) 99 Cal.App.3d 36; and People v. Thomas (1980) 112 Cal.App.3d 980, 985, fn. 1.)
Of course, the same requirements regarding reliability of informants, personal knowledge, statements of accomplices, staleness, corroboration, etc., apply to information contained within attached exhibits. Thus, the information contained within exhibits should be read as though it had been written out in the affidavit in order to see if the affidavit establishes probable cause.
Any omissions or errors in an exhibit should be explained and corrected in the body of the affidavit. If the exhibit alone does not adequately describe the crime, location, or investigation, etc., it should be expanded upon in the body of the affidavit. Although exhibits are valuable and often shorten the time necessary to prepare an affidavit, it is unusual for exhibits alone to justify issuance of a search warrant.
I. Sufficiency of Information
Whether or not probable cause for issuance of a search warrant has been established can be determined only on a case by case basis. However, in certain recurring situations, the courts have held warrants valid. These cases do provide some guidance for the preparation of warrants.
Factual information from a single reliable informant that he recently saw narcotics or other contraband within a particular location will justify issuance of a warrant. It should be made clear in the affidavit that the informant was able to recognize the type of contraband he claimed to have seen. (People v. Hansborough (1988) 199 Cal.App.3d 579, 584; Jones v. United States (1960) 362 U.S. 257; and People v. Mesa (1975) 14 Cal.3d 466.) An example of this type of warrant is set forth in Appendix D.
IV-34 A search warrant based upon the statements of a single reliable informant may also be issued for items other than controlled substances. This includes items such as stolen property, guns used in crimes, clothes worn during the commission of crimes, bookmaking paraphernalia, and other items. If the informant satisfies the totality of circumstances test, his statement of the location of the items can be relied upon by the issuing magistrate. However, the affiant must establish that the particular item was stolen, or used as means of committing a felony, or falls within one of the other statutory categories of seizable property.
IV-35
1. Narcotics Offenses
If it can be established that a suspect is a narcotics dealer, then a warrant can be issued for the place where he conducts his sales and for his residence. (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315; In re Christopher R. (1989) 216 Cal.App.3d 901, 905.) The courts have held that it is reasonable to believe that a drug dealer has a “stash” at both locations. (People v. Aho (1985) 166 Cal.App.3d 984,992; People v. Johnson (1971) 21 Cal.App.3d 235, 243.) One way to show that a suspect is a dealer is for an informant to make a “controlled buy” from the suspect. (See Appendix E for a sample “Controlled Buy Search Warrant.”)
Obviously, there are numerous factual situations that establish probable cause for the issuance of a search warrant for narcotics. The following cases upheld the search of a location pursuant to a search warrant.
• People v. Johnson (1971) 21 Cal.App.3d 235, 243 (search warrant was properly issued for defendant’s residence after drugs and a machine gun were found at an apartment the defendant had rented). • People v. Hernandez (1974) 43 Cal.App.3d 581 (search warrant was properly issued for suspect’s residence after officer overheard informant order narcotics from suspect over the phone and consummate the transaction with the suspect at a bar). • People v. Dickenson (1974) 43 Cal.App.3d 1034 (search warrant was properly issued for the premises where the co-defendant was seen to visit during the progress for the sale of narcotics, and on the second occasion an ounce of cocaine, the amount of the agreed purchase, was found near the co-defendant’s purse). • People v. Watson (1979) 89 Cal.App.3d 376, 384-5 (search warrant was properly issued for a location from which a controlled buy had been made by an informant). • People v. Thompson (1979) 89 Cal.App.3d 425, 428-430 (search warrant was properly issued after officers monitored a phone call from the informant to the suspect who said he had heroin available for sale and the phone number was registered to the location searched). • People v. Veasey (1979) 98 Cal.App.3d 779, 784-5 (search warrant was properly issued after officer monitored a phone call from the informant to a suspect who stated that defendant could “do a small thing of boy now” (heroin) and phone number was listed to the location searched). • Toubas v. Superior Court (1981)114 Cal.App.3d 378 (search warrant was properly issued for a location where defendant had displayed a sample of cocaine to an undercover officer). • People v. Levine (1984) 152 Cal.App.3d 1058, 1066 (search warrant was properly issued after officer monitored a phone call from an informant to the defendant who discussed the price and availability of a gram of cocaine, and the phone number was listed to the location searched).
IV-36 • People v. Aston (1985) 39 Cal.3d 481, 496 (search warrant upheld for a location where the suspect went during undercover negotiations for the purchase of cocaine and returned with a quantity of cocaine). • People v. Rochen (1988) 203 Cal.App.3d 684, 689 (search warrant upheld for the address provided by an informant after officers monitored a phone call between the informant and the defendant in which the defendant stated that she had PCP for sale and invited the informant to come over). • People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 (controlled buy justified the issuance of a search warrant for the premises where the buy was made). See also People v. Hall (1971) 3 Cal.3d 992, 996-7 (controlled buy justified the arrest of the two persons inside the location from where the controlled buy had been made). • People v. Cleland (1990) 225 Cal.App.3d 388, 393 (search warrant was approved for the residence of a person arrested away from the residence with a salable quantity of marijuana; affidavit included narcotic officer’s expert opinion that persons who sell marijuana often keep an additional amount in their home). “[A] seizure of a significant amount of contraband from a suspect’s person, combined with an expert’s opinion as to the likelihood that additional contraband might be found at that suspect’s residence, can justify the issuance of a search warrant for that suspect’s residence.” (225 Cal.App.3d at page 393.) But see People v. Pressey (2002) 102 Cal.App.4th 1178 (there is insufficient probable cause for a search warrant for the residence of a suspect, who is arrested elsewhere in possession of narcotics for personal use and there is no evidence that the suspect is a dealer of narcotics). • People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315 (surveillance of a person who was observed carrying marijuana and selling it justified the issuance of a search warrant for the seller’s apartment). • People v. Rodriguez-Fernandez (1991) 235 Cal.App.3d 543 (search warrant was approved for a location that a van had recently left, where the van was stopped by police, searched, and found to contain a large amount of cocaine). • People v. Glenos (1992) 7 Cal.App.4th 1201, 1207-8 (search warrant was properly issued for a suspected drug laboratory based upon the suspect’s purchase of a large amount of Freon -- used in drug manufacturing -- under a false name and transporting it to the location for which warrant was issued). • People v. Romero (1996) 43 Cal.App.4th 440 (search warrant was properly issued for a residence that a drug dealer was observed to visit before consummating a drug deal with an undercover officer). • People v. Thuss (2003) 107 Cal.App.4th 221, 234-6 (search warrant upheld for defendant’s residence after the discovery of recently cut marijuana stems and leaves in a trash can that contained defendant’s residential trash). • United States v. Nielson (9th Cir. 2004) 371 F.3d 574, 580 (information from three untested informants provided probable cause for the search warrant where the “interlocking tips from different confidential informants enhance the credibility of each.”) • People v. Stillwell (2011) 197 Cal.App.4th 996 (search warrant was properly issued for the defendant’s residence after a narcotic detection dog alert of a
IV-37 pickup truck containing the defendant had resulted in the recovery of the makings of a methamphetamine lab in a backpack located in the bed of the pickup truck).
Of course, it is necessary to connect the suspect to the location to be searched. In People v. Hernandez (1994) 30 Cal.App.4th 919, the police made two controlled buys from a suspect and observed the two vehicles used by the suspect parked behind a residence. No other connection was made between the suspect and the residence, but a search warrant was issued for the search of the residence. The Court of Appeal invalidated the search warrant stating that, “The presence of the vehicles raised suspicions, but failed to establish a nexus between the criminal activities and the residence.” (Hernandez at page 924.)
In People v. Garcia (2003) 111 Cal.App.4th 715, officers obtained a search warrant for a bar that was open to the public, based on sales of methamphetamine from the bar by a customer who was neither an owner nor an employee of the business. The Court of Appeal concluded that the warrant was facially invalid. The affidavit submitted in support of the warrant must establish probable cause to believe that controlled substances will be found at the business establishment. The sale of controlled substances by a customer is insufficient, because there is no probable cause to believe the controlled substances are stored in the business establishment rather than on the person or in the possession of the customer.
A search warrant may be issued based upon observations made by officers after entering premises, on “emergency” grounds. In People v. Duncan (1986) 42 Cal.3d 91, an officer entered a residence based upon information and observations that justified a reasonable belief that burglars might still be inside the residence. While inside, the officer observed a chemical laboratory and smelled ether. Firefighters were called who ventilated and secured the house. A search warrant for an illegal drug lab was ruled valid. In the case of People v. Glance (1989) 209 Cal.App.3d 836, firefighters observed an illegal drug lab on the premises where they were extinguishing a fire. Officers were called and a search warrant obtained. It was held valid on appeal.
Please note also that both Duncan and Glance approve the procedure of the first person seizing the lab equipment and calling a narcotics expert officer who then enters and determines that an illegal drug lab does exist on the premises.
Search warrants for narcotics and controlled substances may also be based upon information received from informants plus corroboration. Generally, in such cases, an informant relates that a suspect is a narcotics dealer. Police then investigate and find the suspect has a record of narcotics sales, and upon surveilling the suspect’s residence they observe frequent brief visits by numerous persons. “Frequent brief visits to a residence by numerous persons is an indication of narcotics traffic . . .” And “a suspect’s narcotics arrest record is relevant to the magistrate’s determination of probable cause.” (See People v. Kershaw (1983) 147 Cal.App.3d 750, 759-760; see also People v. Mikesell (1996) 46 Cal.App.4th 1711, 1720; People v. Love (1985) 168 Cal.App.3d 104; People v. Aho (1985) 166 Cal.App.3d 984; People v. Medina (1985) 165 Cal.App.3d 11; People v.
IV-38 Ramirez (1984) 162 Cal.App.3d 70; People v. Haybron (1980) 108 Cal.App.3d 31; and People v. Green (1981) 117 Cal.App.3d 199; and see the sample search warrant, Appendix C.)
Information from an informant shown to be reliable that he saw narcotics in a specific location will justify issuance of a search warrant, if the information is expressed in a detailed and factual manner. Corroboration is not required. (See People v. Hansborough (1988) 199 Cal.App.3d 579.)
It is not necessary that a particular suspect be known in order to obtain a search warrant for a place at which drug trafficking is taking place. If probable cause establishes that drug trafficking is taking place, a search warrant can be issued for the location even though the involvement of the ultimate defendant is unknown or cannot be fully established at the time the warrant is obtained. (People v. Fernandez (1989) 212 Cal.App.3d 984, 989.)
If a narcotics detecting dog alerts to the presence of contraband in a closed container in a public area, the container may be seized and a search warrant may be obtained to search the container for the particular substance to which the dog alerts. The dog’s qualifications as to detecting cocaine or explosives or other illegal substances must be set forth in the affidavit. (People v. Mayberry (1982) 31 Cal.3d 335; People v. Lester (1980) 101 Cal.App.3d 613.)
2. Controlled Delivery/Anticipatory Search Warrant
In United States v. Grubbs (2006) 547 U.S. 90, the United States Supreme Court upheld the legality of “anticipatory search warrants.” The Court defined an anticipatory search warrant as “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place (cite). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time - a so-called ‘triggering condition.’” (547 U.S. at page 94.)
In Grubbs, the defendant purchased a videotape containing child pornography from a web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to defendant’s residence. A postal inspector obtained an anticipatory search warrant for defendant’s residence with the “triggering condition” being the controlled delivery of the videotape. The warrant was served, and various items were seized, including the videotape.
A unanimous Supreme Court upheld the constitutionality of anticipatory search warrants and stated the following:
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that
IV-39 (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. . . In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs, “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” (cite), but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable cause determination. (Grubbs, supra, at page 96.)
Before the Supreme Court’s decision in United States v. Grubbs, supra, anticipatory search warrants involving a “controlled delivery” had been judicially approved in several cases. Controlled delivery usually refers to a situation in which a package known to contain contraband is delivered to a location, under police surveillance and direction. This situation often arises as a result of the discovery of contraband in overseas mail by U.S. Customs Agents during their lawful inspection of packages arriving from foreign countries. Border searches of incoming international mail are per se reasonable under the Fourth Amendment without any need to show probable cause. (See People v. Blardony (1998) 66 Cal.App.4th 791, citing United States v. Ramsey (1977) 431 U.S. 606.) The courts have held that it is permissible for the package to be resealed and delivered, and the location to which it is sent may be searched pursuant to a warrant if the package is accepted. (People v. Warren (1990) 219 Cal.App.3d 619; People v. Salih (1985) 173 Cal.App.3d 1009; Alvidres v. Superior Court (1970) 12 Cal.App.3d 575.) The items sought in the search warrant should include the original package and contraband, other contraband of the type contained in the package, paraphernalia, and correspondence relating to the smuggling of the contraband. (See People v. Superior Court (Marcil) (1972) 27 Cal.App.3d 404, 416; People v. O’Leary (1977) 70 Cal.App.3d 323, 329; and United States v. Vesikuru 314 F.3d 1116 (9th Cir. 2002).)
The affidavit for such a warrant should describe in detail the manner in which the contraband was first discovered, the chain of custody of the package and contraband, and the manner in which it is to be delivered under police surveillance. Both the affidavit and warrant can and should be prepared before the package is delivered and the following should appear on the face of the warrant:
“THIS WARRANT CAN BE SERVED ONLY UPON DELIVERY AND ACCEPTANCE OF THE DESCRIBED PACKAGE.(initials of magistrate).” If the package is not accepted, the warrant cannot be served.
Controlled delivery warrants need not be limited to situations involving customs agents. In People v. Superior Court (Evans) (1970) 11 Cal.App.3d 887, a controlled delivery was lawfully made of a package accidentally found by an airport clerk to contain hashish.
A similar situation involving what was termed an “anticipatory warrant” was approved in People v. Sousa (1993) 18 Cal.App.4th 549. In this case, a search warrant was issued for
IV-40 a residence contingent upon an anticipated undercover buy of narcotics taking place at that residence. The details of the planned buy were set forth in the affidavit and the affiant stated that if the buy did take place, it would be his opinion that more narcotics and related paraphernalia would be found within the residence. The Court of Appeal held the warrant was valid. It stated:
“Where, as here, the affidavit sets out in detail the anticipated events upon which execution is contingent, and the magistrate determines that the right to search will exist upon the occurrence of these events, the determination of probable cause is not improperly delegated by leaving to the officers the future determination of whether those events have actually occurred.” (At page 560.)
The Court also stated that the preferred practice is to state the contingency on the face of the warrant (as with controlled delivery warrants). For example, if the execution of the warrant is contingent upon an undercover buy, the following should appear on the face of the warrant:
“THIS WARRANT CAN BE SERVED ONLY IF A SALE OF NARCOTICS TAKES PLACE AT THE PREMISES TO BE SEARCHED. (initials of magistrate).” If the sale of narcotics does not take place, the warrant cannot be served.
The advantage of an “anticipatory warrant” is that it allows a search immediately upon the happening of the contingency and without the delay that would occur if the warrant was written after the happening of the contingency.
3. Narcotics Traffic
Surveillance of narcotics traffic -- such as numerous persons going to a location, remaining at the location for a few minutes only, and than departing -- may be considered evidence of narcotics sales. Such traffic can corroborate information from an untested informant. (See People v. Mikesell (1996) 46 Cal.App.4th 1711, 1720; People v. Kershaw (1983) 147 Cal.App.3d 750, 759; People v. Thomas, (1980) 112 Cal.App.3d 980; People v. Childress (1979) 99 Cal.App.3d 36; People v. Gray (1976) 63 Cal.App.3d 282, 289; and People v. Fernandez (1989) 212 Cal.App.3d 984.) Heavy foot traffic by itself will not justify the issuance of a search warrant for drug dealing. (Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1109.)
4. Growing Marijuana
Case law establishes that when growing marijuana plants are being cultivated, it is reasonable to believe that additional marijuana and related paraphernalia will be found within structures adjacent to the marijuana plants. Thus, if marijuana is being cultivated in a back yard, a search warrant for the yard and residence is valid. It must be clear, however, that if the growing marijuana was first observed by a peace officer, he was in a place where he had a lawful right to be. (See Hart v. Superior Court (1971) 21
IV-41 Cal.App.3d 496; People v. Brown (1985) 166 Cal.App.3d 1166; and People v. Wilson (1987) 191 Cal.App.3d 161.) If officers observe only a single marijuana plant which does not appear to be cultivated, a search warrant may issue for the single plant but not for an adjacent structure. (See People v. Pellegrin (1978) 78 Cal.App.3d 913.)
In People v. Thuss (2003) 107 Cal.App.4th 221, 234-6, a search warrant for defendant’s residence was upheld based on the discovery of recently cut marijuana stems and leaves in a trash can that contained defendant’s residential trash.
Case law permits the observation of marijuana fields by aerial over flight. When a field is identified, a search warrant for the field and adjacent structures is valid. Aerial over flights are not considered a violation of a reasonable expectation of privacy. (See California v. Ciraolo (1986) 476 U.S. 207; People v. McKim (1989) 214 Cal.App.3d 766; People v. Romo (1988) 198 Cal.App.3d 581; People v. Stanislawski (1986) 180 Cal.App.3d 748; and People v. Smith (1986) 180 Cal.App.3d 72.)
A search warrant based upon the observation of growing marijuana from an adjacent field was held lawful even though the officers committed a technical trespass in going upon the field from which the observation was made. (People v. Freeman (1990) 219 Cal.App.3d 894.)
5. Burglary, Robbery and Other Offenses -- Search of Suspect’s Residence
There are numerous cases that hold that once the identity of the perpetrator of a particular crime is established, the residence of that person may be searched for the fruits, instrumentalities, and evidence of that crime. People v. Miller (1978) 85 Cal.App.3d 194, 204, specifically states, “A number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items.” -- cited with approval by the California Supreme Court in People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 and People v. Carrington (2009) 47 Cal.4th 145, 163.
People v. Carrington (2009) 47 Cal.4th 145 upheld the issuance of a search warrant for defendant’s home where probable cause existed that the defendant had committed two business burglaries two months before. The Supreme Court stated the following:
In the present case, the checks from NDN Enterprises still were outstanding two months after the burglary. In view of the nature of the items sought -- the outstanding checks still could be forged and cashed, and a key to Blackard Designs still could be useful to defendant -- there existed a fair probability that these stolen items remained at defendant’s residence despite the passage of time. (47 Cal.4th at page 164.)
In People v. Miller (1978) 85 Cal.App.3d 194, police received and corroborated information that the suspect had committed a series of burglaries and robberies and a kidnap for ransom. Based upon this information and corroboration, a search warrant was
IV-42 obtained for the suspect’s residence and for his two autos authorizing a search for various specifically described fruit, instrumentalities, and evidence of the crimes. The Court of Appeal held the warrant valid, stating:
The connection between the items to be seized and the place to be searched need not rest on direct observation. It may be inferred from the type of crime involved, the nature of the item, and the normal inferences as to where a criminal might likely hide incriminating evidence. (85 Cal.App.3d at page 201.)
Similarly, in the case of People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, a magistrate issued a search warrant for a suspect’s residence for items taken 31 days earlier in a burglary. The facts connecting the suspect with the burglary were that he had been seen in the vicinity of the burgled premises and his fingerprints were found at the point of entry. The Court of Appeal upheld the warrant for the stolen property, stating,
[T]his court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property. (49 Cal.App.3d at page 167.)
People v. Meyer (1986) 183 Cal.App.3d 1150, upheld the issuance of a search warrant for a suspect’s home when probable cause was established that he had committed welfare fraud. Regarding the presence of records in the suspect’s home that would show welfare fraud, the Court of Appeal agreed with the trial judge’s statement that,
[T]he court accepts as a matter of common knowledge that individuals frequently, if not always, keep personal and business records of the kind herein sought to be seized in their residences. The law does not require actual knowledge that such records existed or were in fact kept in a particular residence. (183 Cal.App.3d at page 1162.)
The case of People v. Frank (1985) 38 Cal.3d 711, involved a search warrant for the residence of a person reasonably suspected of torturing and murdering a two-year-old girl. As to certain of the items listed to be seized, the California Supreme Court noted, “The existence of some of the items was properly inferred from the condition of the body and circumstances of the crime.” (E.g. pliers, blonde hair, bits of skin or flesh, rope or cloth used to bind hands and feet, and the victim’s clothing; 38 Cal.3d at page 722.) Thus, even though neither the affiant nor any informant had personally seen these items at the suspect’s residence, the issuance of a search warrant for them was still proper. Note also that in this case seven months elapsed between the crime and the search.
The following format is recommended for an affidavit in support of a search warrant of a suspect’s residence for fruits, evidence and instrumentalities of a crime:
IV-43 a. Statement of identity, training and experience of affiant. b. Facts of crime(s) being investigated. Crime reports can be used as exhibits. c. Facts establishing probable cause for believing suspect committed crime(s) being investigated. Investigators’ reports can be used as exhibits. d. Facts establishing where suspect resides (the place to be searched) and any autos he may use. e. How descriptions of suspect(s), residence(s), and auto(s) were obtained, and how descriptions of items to be seized were obtained. f. Opinion of affiant, and reasons therefore, that suspect committed the crime(s) being investigated and that specific fruits, instrumentalities and evidence thereof will be located within his residence and autos and upon his person.
Naturally, if the affiant or an informant has actually seen the desired items within the suspect’s residence, this should also be specifically included in the affidavit. (See People v. Stewart (1983) 140 Cal.App.3d 11.)
An example of such a search warrant for a robber’s residence is set forth in Appendix B and for a burglar’s residence is set forth in Appendix C.
6. Airport Searches Involving Trained Dogs
Case law holds that police may use trained dogs to detect narcotics contained within luggage at airports. Once the dog “alerts” to the luggage, it may be seized and a search warrant obtained for it. However, unless exigent circumstances or consent can be shown, the luggage should not be searched until the search warrant is issued. (See People v. Mayberry (1982) 31 Cal.3d 335; and People v. Lester (1980) 101 Cal.App.3d 613.)
The Mayberry case states, “One who secretes illegal narcotics in his suitcase has no protectable privacy interest in those narcotics, nor any legitimate objection to an unintrusive method of detection which reacts only to such contraband.” (31 Cal.3d at page 341.)
7. Sex Offenses
Once a suspect can be reasonably identified as having committed a particular sex offense, the suspect’s residence, auto, and person may be searched for any specifically described fruits, instrumentalities and evidence of the offense -- just as in the case of burglars and robbers. In particular, the clothes worn by a rapist will have great evidentiary value in court if they were described by the victim following the attack and are later recovered during a search of the suspect’s residence. It should be recalled that clothing worn during the commission of an offense is subject to seizure since it is evidence which “tends to show that a particular person has committed a felony.” (Penal Code section 1524, sub. (a) (4).)
IV-44 In the case of People v. Haslouer (1978) 79 Cal.App.3d 818, a search warrant was issued for a bottle of “Making Love Body Lotion” and sexually explicit playing cards which the defendant used in a scheme to molest some neighborhood children in his home. The warrant was based upon statements of the victims. The items were validly seized pursuant to Penal Code section 1524 as “property or things . . . used to commit a felony . . .” and as “evidence which tend to show a felony has been committed. . . .” Such items very effectively corroborated the testimony of the victims in court and resulted in the defendant being convicted. Thus, it is recommended that search warrants be considered in appropriate sex offense cases.
See In re Duncan (1987) 189 Cal.App.3d 1348, for an example of a case where a search warrant was obtained for a suspected pedophile’s residence. In this case, an undercover officer exchanged photographs of unclothed children with the suspect. Accompanying correspondence from the suspect stated he had additional photos. This formed the basis of the search warrant.
J. Crime Scene Searches
1. Generally
The United States Supreme Court cases of Flippo v. West Virginia (1999) 528 U.S. 11; Thompson v. Louisiana (1984) 469 U.S. 17; and Mincey v. Arizona (1978) 437 U.S. 385, specifically hold that premises may not be searched without a warrant solely because a crime was committed thereon.
Usually there is no difficulty in conducting a warrantless search at the scene of a crime because the person in control of the premises, who is usually also the victim, wants the officers to search and to conduct a thorough investigation. Thus, such searches are valid as consent searches. Indeed, the validity of such searches is so well established that they are rarely challenged in court, and therefore it has rarely been necessary to point out that such searches are, in fact, consent searches.
There are occasional cases, however, in which the crime occurs within premises under control of the suspect. A typical example might be a shooting which occurs within the suspect’s home. Even in these cases the suspect often will consent to a search, probably in hopes of allaying suspicion. But if consent is refused or cannot be obtained (suspect missing or physically incapacitated), then a warrant is necessary. A limited “emergency walk-through search” may be conducted for suspects still suspected to be on the premises or for persons reasonably expected to be injured and in need of assistance. (Flippo v. West Virginia (1999) 528 U.S. 11; Maryland v. Buie (1990) 494 U.S. 325; Tamborino v. Superior Court (1986) 41 Cal.3d 919; People v. Block (1971) 6 Cal.3d 239, 244; and People v. Hill (1974) 12 Cal.3d 731, 755.) But a thorough search will require a warrant.
Preparation of crime scene warrants follows the same principles set forth for other search warrants. The affiant must first describe the place he wants to search. This should be simple since in most situations officers will already be at the “crime scene.” Secondly,
IV-45 the affiant must decide just what it is he wants to search for and must describe these items with reasonable particularity. Thirdly, the affiant must prepare his “statement of probable cause” in which he must state in a factual and legally sufficient manner why he believes that items he is seeking will be at the place to be searched. Also, it should be made clear from the statement of probable cause that the items sought fall within one or more of the statutory grounds for seizure as set forth in Penal Code section 1524, i.e., stolen property, evidence of a felony, etc. A sample “Statement of Probable Cause -- Crime Scene Search Warrant” appears at the end of this Chapter.
2. Arson Scene Searches
The investigation and search of the scene of fires is governed by the U.S. Supreme Court case of Michigan v. Tyler (1978) 436 U.S. 499. This case holds that fire fighters and arson investigators may lawfully remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. Also, in this case the court held it was permissible for arson investigators who exited a building at 4:00 AM due to darkness, steam and smoke to reenter the next morning as a “continuation” of the initial “reasonable” investigation of the cause of the fire. (436 U.S. at page 511.) The court concluded its opinion by stating:
[E]vidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson had occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime. (436 U.S. at page 512.)
Thus, an initial investigation as to the cause of the fire is permissible without a warrant, and any evidence of arson observed during such an investigation may be seized. But a protracted search in order to gather evidence specifically to aid in a prosecution must be pursuant to a search warrant. Such a warrant should not be difficult to prepare since it will be based primarily upon the personal observations of the affiant at the scene and his opinion that the fire was arson and that evidence related to arson will be at the scene. (Cleaver v. Superior Court (1979) 24 Cal.3d 297.)
K. Covert Searches Under Warrant -- “Sneak-and-Peek” Search Warrants
A “sneak-and-peek” search warrant is a warrant that authorizes surreptitious entry of a location, without notice, often during the nighttime, when the occupants are not present. The critical issue involved is that notice of the search must eventually be given.
There is no California case law that discusses the legality of this type of search warrant, so any officer that utilizes such a warrant does so at some risk. Some federal cases suggest that a covert entry search warrant is permissible if provision is made to provide notice within a reasonable time after the surreptitious entry. (United States v. Freitas (9th Cir. 1986) 800 F.2d 1451; United States v. Johns (9th Cir. 1988) 851 F.2d 1131, 1134-1135; United States v. Villegas (2nd Cir.
IV-46 1990) 899 F.2d 1324, 1337.) Such warrants are also authorized under the Patriot Act at 18 U.S.C. section 3103a.
Any covert warrant application should pass three crucial tests: a sufficient showing of need for such a warrant, provision for a minimum of delay in giving notice, and the existence of appropriate restrictions during the search. Covert searches under warrant should be used only with great care and under exceptional circumstances. One legal obstacle that exists for such a warrant is that no evidence is “seized” as required by Penal Code Section 1524. To avoid this problem, the search warrant should contain the standard description of property to be seized, but it should also give the officers serving the warrant the discretion to photograph these articles in lieu of physically seizing them or of merely taking a sample of any narcotics contraband at the location.
After describing the property to be seized, the following, or similar language, can be set forth, as follows:
. . . However, in the discretion of the officers executing this search warrant, any of the above-described property may be photographed by the officers instead of being physically seized. Also, in the discretion of the officers executing this search warrant, a sample or portion of the above-described property may be seized. Also, in the discretion of the officers executing this search warrant, neither a copy of the search warrant nor an inventory of items seized or photographed need be left at the location searched.
The search warrant and affidavit should make complete disclosure to the magistrate of the type of search that is contemplated in the service of the warrant. Language similar to the following should be included in the affidavit:
. . . Your affiant is aware that the service of this search warrant in the normal manner will alert the suspects under investigation, as well as other as yet unidentified members of this narcotics organization, that they are the objects of a police investigation. This would frustrate the investigation by allowing members of this narcotics organization to go into hiding and to secrete contraband that is not recovered during the execution of this warrant. For this reason, your affiant requests permission to serve this search warrant, in the discretion of the officers executing this warrant, when the locations to be searched are unoccupied and in a manner that would not alert the suspects that they are under police investigation. Such service might include surreptitious entry, service of the warrant during nighttime hours, not leaving an inventory of items seized, and photographing contraband and items of evidence instead of physically seizing them. Your affiant requests such permission through the signing of this warrant by the magistrate.
The search warrant affidavit should clearly indicate that notice of the entry pursuant to the warrant onto the premises will be provided to the owners and/or occupants of the property within a reasonable time. Language similar to the following should be included in the affidavit:
. . . Your affiant and fellow officers are currently involved in an investigation of a major cocaine distribution organization. If members of this organization become aware of the
IV-47 service of this search warrant, this investigation will be seriously compromised. Your affiant anticipates that the investigation against this cocaine distribution organization will be concluded within the next 30 days; and, at the conclusion of this investigation, but no later than 30 days after the service of this warrant, notice of the entry pursuant to this warrant will be given to the owners of the property and occupants of the location where the entry was made. If your affiant and/or fellow officers have the opinion that good cause exists to delay such notice, officers may petition the court for an additional delay in providing notice, not to exceed 30 days in length.
L. Justification for Answering the Telephone
Valuable evidence can often be obtained by answering the telephone during the search of a location. “In a bookmaking case, evidence of a telephone conversation between an arresting officer and a person calling the suspected premises has been uniformly held to be admissible to show the purpose for which the premises are used.” (People v. Warner (1969) 270 Cal.App.2d 900, 907.) Telephone conversation evidence can be valuable in other cases as well. (People v. Sandoval (1966) 65 Cal.2d 303, 308; People v. Drieslein (1985) 170 Cal.App.3d 591, 602; and People v. Nealy (1991) 228 Cal.App.3d 447, 452; and People v. Morgan (2005) 125 Cal.App.4th 935 -- narcotics dealing.)
In People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163, 167, officers armed with a search warrant discovered evidence in suspect’s home which gave them reasonable grounds to believe that the suspect was selling drugs from that home. The court held that this justified officers answering incoming phone calls even though the warrant did not list incoming phone calls and the officers were unaware of the drug sales until after they began their search. The court held that the discovery of a large amount of cocaine and $10,000 was enough to render incoming calls suspect and to justify answering those calls.
In People v. Harwood (1977) 74 Cal.App.3d 460, 465, the court held that officers searching pursuant to consent only cannot answer the phone unless they receive consent specifically to answer the phone as well.
It is recommended that officers wishing to answer the phone during the execution of a warrant specifically request such authority in the affidavit. Also, the description of items sought should include language regarding telephone conversations. (See Chapter III, Section D.)
1. Bookmaking
. . . Based upon the facts set forth in this affidavit, it is your affiant’s opinion that the suspect, Cary Eley, is conducting bookmaking activities within her residence. Also, it has been your affiant’s experience that such activities are almost always conducted over the phone. Persons call to place bets and to request payoffs. Thus, your affiant requests this warrant contain an authorization for officers to answer the telephone within the premises during the search in order to obtain evidence such as bets being placed and payoffs requested. It is your affiant’s
IV-48 opinion that callers will attempt to place bets and request payoffs in the phone conversations.
2. Narcotics Sales
. . . Based upon the facts set forth in this affidavit, it is my opinion that the suspect, Sharon Lee Wardman, is selling heroin using her residence as her main base of operations and taking orders over the phone for pickup and delivery -- the so-called “phone buy” method. Thus, I also request this warrant authorize searching officers to answer the residence phone. It is my opinion persons will call ordering narcotics and that such calls will constitute evidence of the commission of a felony.
M. Form -- Crime Scene Search Warrant
See following pages.
IV-49 STATEMENT OF PROBABLE CAUSE -- CRIME SCENE SEARCH WARRANT
1. My name is I am a Peace Officer for the Department. My assignment and experience are as follows:
2. On , 20 , at AM/PM, I was informed that the crime of appeared to have taken place sometime within the past hours/days at the address of
which is described as a
3. This information was told to me by I was also told the following (how did premises/crime first come to attention of police, how/why was entry made, what was seen within and by whom, what crime(s) appear(s) to have been committed within the premises, and other facts relevant to probable cause for the search warrant):
4. I personally arrived at the scene on 20 , at AM/PM. I observed and was told the following (if applicable):
5. Opinion: Based upon the foregoing, it is my opinion that the crime(s) of was (were) committed at the described premises, that the items sought are seizable pursuant to Penal Code section 1524, and that these items will be found at the described premises. I also seek to photograph, diagram and fingerprint the premises.
6. I request that the search warrant may be served at any time of the day or night. Officers are now within the described premises and no purpose would be served by having them wait until daylight hours to serve the warrant.
CHAPTER V
NIGHTTIME SEARCHES
A. Introduction
For search warrant purposes, nighttime is defined as those hours between 10:00 PM and 7:00 AM Before a warrant may be served at night it must contain a statement or “direction” that it can be served at night and its supporting affidavit must set forth facts and circumstances establishing good cause for a nighttime search.
This is set forth in Penal Code section 1533 which reads as follows:
Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 AM and 10 PM. When establishing “good cause” under this section, the magistrate shall consider the safety of the peace officers serving the warrant and the safety of the public as a valid basis for nighttime endorsements.
If the affidavit does not contain an adequate showing of good cause for night service or if the warrant does not contain a direction authorizing a nighttime search, must any evidence obtained by a nighttime search be suppressed? Before the passage of Proposition 8 in 1984, the answer was yes. (See Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 328.) However, the passage of Proposition 8 precludes California courts from excluding relevant evidence except insofar as such exclusion is compelled by the federal Constitution. (In re Lance W. (1985) 37 Cal.3d 873, 879.) Thus, under current California decisional law, evidence seized during an improper nighttime search should not be suppressed. (See the discussion in Section B., below.)
B. “Good Faith” Exception -- Effect of Proposition 8
The case of People v. Swan (1986) 187 Cal.App.3d 1010, specifically held that the “good faith” exception to the exclusionary rule set forth in the Leon and Sheppard cases -- discussed in Chapter 1 -- applies also to searches conducted pursuant to an invalid night search direction. Thus, if an officer acted in reasonable good faith in relying upon a night search endorsement, the fruits of the night search should not be suppressed.
Suppose “good faith” cannot be shown; must the fruits of an invalid night search be suppressed? The case of Rodriguez v. Superior Court (1988) 199 Cal.App.3d. 1453, says no. In the Rodriguez case, the magistrate issuing the search warrant authorized nighttime service even though there was no showing in the affidavit that nighttime service of the warrant was necessary. As a result, the officer did not act in good faith in relying on the magistrate’s authorization of a nighttime search. The Court of Appeal held that as a result of Proposition 8, the fruits of a night
V-1 search should not be suppressed even if the probable cause requirements of Penal Code section 1533 were not met and even if good faith cannot be shown. Rodriguez arrived at this holding by noting that federal law does not compel the exclusion of evidence seized in violation of night search statutes and that under Proposition 8, the same rules of exclusion that apply under federal law are now applicable in California. Rodriguez states, “If exclusion of evidence seized in searches violative of nighttime service requirements is not compelled under current federal law, evidence seized in violation of section 1533 should not be excluded if the search is otherwise reasonable in a constitutional sense.” (Rodriguez, supra, at page 1470.)
Thus, under Rodriguez, even if there is no basis whatsoever for night execution of a search warrant, the fruits of the search will not be suppressed so long as the search is otherwise constitutionally valid. Of course, officers should nevertheless establish good cause in the affidavit for a nighttime search when one is requested, in the interest of professionalism and to comply with California law as set forth in Penal Code section 1533.
C. Requirement of Magistrate’s Direction on Warrant
Most search warrant forms currently in use contain a pre-printed nighttime service endorsement. Several formats have been specifically approved by the courts. In People v. Grant (1969) 1 Cal.App.3d 563, 566-7, the court approved the use of a form in which an “X” was placed in a box on the search warrant indicating approval of nighttime service. In People v. Young (1970) 12 Cal.App.3d 878, 881, the search warrant form contained a direction commanding the officers, “to make an immediate search in the daytime (at any time of the day or night, good cause being shown therefore).” The judge underlined the words in parenthesis and dated and initialed the margin. The court ruled this was a valid nighttime service direction. Additionally, the magistrate can simply write on the search warrant, “Authorized for Nighttime Service” and sign the warrant. This should be written just above his signature.
Caveat: If nighttime service is desired, always double-check that the nighttime service direction is included clearly and unmistakably on the search warrant.
D. Requirement of “Good Cause” in Affidavit
What is good cause for nighttime service? The California Supreme Court in the case of People v. Kimble (1988) 44 Cal.3d 480, 494, discussed the standard of good cause for a night search as follows:
In recent years, a number of Court of Appeal opinions have offered different verbal formulations in an attempt to clarify the “good cause” standard in this context. It is difficult, however, to anticipate all of the numerous factors that may justify the authorization of a nighttime search and we think that the Sixth Circuit, in interpreting the comparable federal rule on nighttime searches, adopted the proper perspective in suggesting that “[t]he Rule requires only some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation. The procedural requirements of the Rule ensure that the fact that nighttime search is contemplated by the police is brought to the attention of a magistrate and that he
V-2 or she consciously decide[s] whether such a particularly abrasive intrusion is called for in a given situation.” (United States v. Searp (6th Cir. 1978) 586 F.2d 1117, 1121, emphasis added.)
Although the standard for night searches set forth in Kimble is very broad, case law clearly permits a night search upon a showing of probable cause to believe that the items to be seized may be moved, destroyed, secreted, or otherwise made unavailable if the warrant cannot be served during nighttime hours. (People v. Watson (1977) 75 Cal.App.3d 592, 595.)
The affidavit will be read as a whole to determine whether good cause for a night search exists. Penal Code section 1533 does not require a separate and specific statement of good cause. (People v. Lopez (1985) 173 Cal.App.3d 125, 138.) Nevertheless, it is recommended that the affiant include a specific request and statement of reasons for nighttime service in the affidavit. Several examples are set forth in this Chapter. This statement should incorporate by reference all the information set forth in the affidavit as well as set forth specific facts and reasons justifying nighttime service.
Whether or not good cause exists for a nighttime search warrant depends upon the facts of each case. Cases in which nighttime service was ruled valid and sample requests for nighttime service are set forth below.
1. Heroin Sales at Night
In People v. Govea (1965) 235 Cal.App.2d 285, 299, the court held that the fact that heroin sales took place at night in that case justified nighttime service. The showing of good cause in such a case might be set forth as follows:
. . . I request this search warrant be endorsed for nighttime service based upon all the information set forth in this affidavit and the following: My investigation in this case has shown that the heroin sales have taken place all hours of the day and night, including between 10:00 PM and 7:00 AM. To make the strongest possible case, this warrant should be served when heroin sales are in fact taking place at the location to be searched, which includes the hours between 10:00 PM and 7:00 AM
The above example might be used in any case in which sales or transfer of contraband is taking place at night. The affidavit should specify that the nighttime sales took place between the hours of 10:00 PM and 7:00 AM, and not merely “in the nighttime.” NOTE: This example was written in the first person. It is perfectly acceptable for affidavits to be written in the first person.
The fact the suspect is a heroin dealer or other drug dealer will not alone justify a nighttime endorsement. There must be a showing of nighttime “operations” in order to justify service of the warrant at any time when narcotics are being sold from the premises to be searched. “[T]he magistrate’s exercise of discretion cannot be based solely on the nature of the contraband to be seized or the type of crime involved.” (People v. Watson
V-3 (1977) 75 Cal.App.3d 592, 597; People v. Flores (1979) 100 Cal.App.3d 221, 234.) Similarly, the mere fact that marijuana was being cultivated in a remote area did not justify nighttime service. (Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 327-30.)
2. Suspect Arrested -- Confederates Outstanding
If it can be shown that friends, associates, or confederates of an arrested person may learn of the arrest and destroy, dispose of, or secrete the items sought, a nighttime warrant is valid. “It is common knowledge that those in the possession of contraband or stolen goods make every effort to effectuate its immediate disposition when they learn that persons connected with it have been apprehended by the authorities.” (Galena v. Municipal Court (1965) 237 Cal.App.2d 581, 591-2.) See also People v. Watson (1977) 75 Cal.App.3d 592, 598, and People v. Flores (1979) 100 Cal.App.3d 221, 234, concerning possible removal of evidence by accomplices of a dope dealer as good cause for a night search.
. . . I request this warrant be endorsed for nighttime service based upon the information set forth in this affidavit. Additionally, it has been my experience in the past that when a burglar is arrested he will attempt to notify friends and associates immediately so that they can destroy, secrete or dispose of the stolen property and other items of evidence which can be used against him or her. The suspect in this case, Zanda Frailich, has lived in Hollywood for at least six months and has been seen with friends and associates on four occasions during surveillance of her. On three of these occasions she was seen with the same two men. DMV records also show her residing at the premises sought to be searched for the past six months. Further, the extent of her burglary operation makes it likely that she has others working with her. It is also likely that the fact of her arrest will become known quickly either as a result of her disappearance or her two authorized phone calls at booking. In view of this, it is my opinion that this warrant must be served as soon as possible, before her arrest becomes known and the items sought destroyed, disposed of, or secreted.
A similar justification for nighttime service could be employed in the case of the arrest of a person suspected of virtually any offense so long as it reasonably appears that associates or confederates would learn of the arrest and conceal or destroy the items sought. Naturally, the items sought must be capable of destruction, disposal, secreting, or losing evidentiary value. Also, there should be a showing that it is likely there are persons who will destroy the items upon learning of the arrest. See People v. Lowery (1983) 145 Cal.App.3d 902, 909-910, concerning stolen computer chips and suspect free on bail; and People v. Lopez (1985) 173 Cal.App.3d 125, 138, regarding proceeds of a burglary and four suspects still outstanding.
In the case of People v. Siripongs (1988) 45 Cal.3d 548, at pp.569-70, the California Supreme Court approved the night search of an arrestee’s residence for items stolen in a robbery/murder. The affiant/officer requested a night search as follows: “I request that nighttime service of this warrant be granted. The stolen property is easily transported
V-4 and/or sold. [Defendant] was allowed to make the one phone call he requested. He made that call to a location in Cerritos. He spoke to the answering party in Thai only. I believe he did this to prevent us from overhearing instructions to dispose of whatever contraband or evidence is still in his residence.” The Supreme Court also held that the fact officers had Siripong’s house under surveillance and saw no movement within did not negate the justification for night service.
In the case of People v. Kimble (1988) 44 Cal.3d 480, a double murder was committed followed by the burglary of the murder victims’ business. Probable cause was developed pointing to two suspects. Their residences were searched pursuant to night search warrants. The Supreme Court held that the “exigencies of the situation” justified the night searches. It noted,
Because the evidence consisted, in part, of recently stolen stereo equipment, the magistrate could reasonably infer that the persons who had stolen the property would attempt to dispose of it as quickly as possible, and this would be particularly true if -- as it appeared -- the offenders recognized that the equipment could connect them not only with a burglary but with two murders as well. Finally, in view of the nature of the homicides that were under investigation, the magistrate could reasonably conclude there was an exceptionally compelling interest in permitting the police to expedite their investigation in order to apprehend a dangerous killer or killers who remained at large. (Kimble, supra, at page 495.)
It would probably be improper to ask for a nighttime search of the residence of every arrested person on the bare assertion that he or she might have confederates who could learn of the arrest and might destroy the items.
3. Arrest of an Occupant -- Avoiding All Night Vigil
If one occupant of a location has been arrested and other persons remain within the location, good cause for a nighttime search can be shown.
Example:
. . . Your affiant requests that this search warrant be approved for service at any time of the day or night based on all the information contained in this affidavit including the following:
The suspect was arrested within his residence at 11:00 PM. Remaining at the residence are the suspect’s wife and two children. It is now 12:00 AM and it is anticipated this warrant will be signed at approximately 2:00 AM. The delay of the service of this search warrant until daytime would require police officers to remain in the residence until 7:00 AM. Such delay would result in an unnecessary waste of time and expense. In addition, such delay would result in
V-5 an increased risk that the items sought within the residence would be tampered with, secreted or destroyed by the remaining occupants of said residence.
The legal justification for the night search in this example is based upon two grounds:
a. The persons remaining within the location are likely to try to destroy the items sought (as discussed in “Suspect Arrested-Confederate Outstanding,” above), and
b. Since officers are already within the location, the greater expectation of privacy sought to be protected by Penal Code section 1533 no longer exists, and thus it is no longer a reason not to search at night. Or, as stated in Civil Code section 3510: “When the reason of a rule ceases, so should the rule itself.” (See also Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, 787.)
Similarly, in People v. Lowery (1983) 145 Cal.App.3d 902, police obtained a search warrant for the defendant’s business premises for stolen computer chips. The defendant was free on bail and officers were concerned that the defendant and his associates would attempt to enter the business and remove the stolen items. Since the warrant would not be completed until 10:00 PM, the officers requested night service so they would not be forced to maintain an all night vigil to keep the defendant and his associates from entering the business and removing or destroying the items sought. The Court of Appeal ruled that since the premises to be searched was a business and since it would be wasteful of police resources for them to maintain an all night vigil, a night search was justified. (Lowery, supra, at page 910.)
For a discussion of the right of police officers to occupy premises following an arrest therein or for other reasons while pending the arrival of a search warrant, see Chapter X Section B -- “Occupying Premises before Search.”
4. Premises Unoccupied
If premises are known to be unoccupied, a night search may be permitted. In Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, the court approved the execution of a search warrant at night of an unoccupied apartment stating that Penal Code section 1533 was designed to protect persons from the “peculiar abrasiveness” of night searches and that “the reason for it was wholly inapplicable to an unoccupied apartment.” (17 Cal.App.3d at page 787.) In fact, in Tidwell the magistrate even neglected to insert the “nighttime direction” in the warrant. Nevertheless, the court upheld the search. (See also People v. Flores (1979) 100 Cal.App.3d 221, 234.)
Generally, if premises are known to be unoccupied and there is no specific reason to justify an immediate search, then the better practice is to conduct a daytime search rather than face a possible problem with a night search. However, if the premises are known to
V-6 be unoccupied and there is a good reason for an immediate search, then a night search should be requested.
Example
. . . It is now 9:45 PM and it is anticipated this warrant will not be ready for signing until midnight. I request a nighttime search based upon the facts set forth above and the following: Following the arrests of the three occupants of the residence, four officers remained within in order to prevent friends and associates of the occupants from entering and disposing of or destroying the stolen property and other items sought. The arrested persons are all longtime residents of Los Angeles County and so are likely to have friends and associates who may learn of the arrests. [Ferdin v. Superior Court (1974) 36 Cal.App.3d 774, 781.] Also, they can make the fact of their arrest known while making their authorized two phone calls at booking. Since no purpose would be served by requiring the four officers to wait within the now otherwise unoccupied premises until 7:00 AM, and since there may be a confrontation if friends of the arrestees come to the premises to dispose of items, I therefore request an endorsement permitting a search during the nighttime hours. (See People v. Flores (1979) 100 Cal.App.3d 221, 245, specifically held that possible violent confrontation with a dope dealer’s accomplices justified a night search. See also People v. Lowery (1983) 145 Cal.App.3d 902, 909-10, re dealer in stolen computer chips.)
5. Items “Perishable”
If the desired items are such that they will lose their evidentiary value with the passage of even a few hours, a night search may be sought. An example might be evidence of gasoline or other liquids. Items that will become contaminated upon exposure to air might also justify a night search.
. . . Your affiant requests a night search based upon the facts set forth above and the following: It appears the fire was started with gasoline which is highly volatile and will evaporate quickly. Traces of gasoline within the containers sought and on the clothes of the suspect and within his residence and car will evaporate and become undetectable if this warrant is not served at the earliest moment.
6. Items “Consumable”
A night search warrant for foodstuffs, liquor, and cigarettes was approved in the case of In re Donald R. (1978) 85 Cal.App.3d 23. In that case the items were stolen from a market. The informant told police the items were being consumed at a party within the suspect’s residence. The court approved a nighttime search based upon the fact the items were consumable and were actually consumed so that they “would be further dissipated with the passage of each day and hour.” (85 Cal.App.3d at page 26.) The court also pointed out that the fact some of the items might still be unconsumed if officers waited
V-7 until daylight does not render a night search improper since the People are entitled to have as much of the evidence as possible, not just what is left at 7:00 AM
The court concluded, “Here the disposability of the stolen goods, coupled with facts concerning defendant’s actions with reference thereto, is sufficient to demonstrate the propriety of a nighttime search.” (85 Cal.App.3d at page 27.)
7. Prevention of Additional Crimes
People v. McCarter (1981) 117 Cal.App.3d 894, 907, held a night search endorsement was lawful when police officers justifiably feared the items sought might be used to commit additional murders if they were not promptly seized. See also People v. Kimble (1988) 44 Cal.3d 480, which authorized a night search in order to enable police to seize evidence which would lead them to apprehend an outstanding murderer. The court stated, “the magistrate could reasonably conclude there was an exceptionally compelling interest in permitting the police to expedite their investigation in order to apprehend a dangerous killer or killers who remained at large.” (Kimble, supra, at page 495.)
8. Suspect Has Discovered Investigation
Nunes v. Superior Court (1980) 100 Cal.App.3d 915, held that a night search endorsement for specifically described items of stolen property was lawful when it was established in the affidavit that the suspect has “made” the investigators and would dispose of the items sought.
Similarly, a night search endorsement was permitted in People v. Cletcher (1982) 132 Cal.App.3d 878, when it appeared that the suspect, then in possession of stolen property, may have seen the owner of the stolen property looking through the suspect’s window shortly before the warrant was prepared. Thus, an immediate night search was permitted even though the actual theft took place a full two years earlier.
9. Probable Disposal of Stolen Items
In the case of People v. Lopez (1985) 173 Cal.App.3d 125, a home was burglarized by four suspects and dozens of small but valuable items taken. It took ten days for the police to obtain the necessary evidence connecting one suspect to the burglary and showing his residence to be the probable repository of the stolen items. Some items, it was known, had already been disposed of and were no longer at that residence. Also, all four suspects were still outstanding, and it appeared they had continuing access to the stolen property. Thus, the magistrate authorized night service to prevent the probable disposal of more of the remaining stolen items. The Court of Appeal upheld this night service direction. (Lopez at page 138.)
V-8 10. Officer’s Safety -- Public Safety
As noted above, Penal Code section 1533 contains the following phrase regarding officer safety and public safety as “good cause” for nighttime service: “When establishing ‘good cause’ under this section, the magistrate shall consider the safety of the peace officers serving the warrant and the safety of the public as a valid basis for nighttime endorsements.”
No appellate cases have yet discussed these grounds for night service. However, if it can be shown that public safety or officer safety would be enhanced by night service, then the relevant facts should be expressed in the affidavit and night service sought.
E. Noting Nighttime Service Request on Search Warrant Forms
A specific nighttime service request in the combined search warrant and affidavit form is not necessary but is desirable. Most forms include a space by the affiant’s signature where a specific notation of the nighttime service request is made. Other forms have similar blanks. Such forms should be studied and filled out in an appropriate manner.
Example:
Nighttime service request (see Attachment No._____)
Example:
Nighttime Search Requested: Yes No
F. Serving a Nighttime Warrant
See Chapter X for a full discussion of serving a search warrant. Nighttime warrants follow the same principles except that a longer time should be allowed for occupants to respond to knock and notice if it appears they are in bed. (See Chapter X, Section D.)
Also, nighttime warrants should be served promptly. It tends to cast doubt on the affiant’s veracity if the statement requesting a nighttime search stresses the necessity for an immediate search and then three days pass before the warrant is served.
G. Search Commences Before 10:00 PM But Continues After 10:00 PM
If a search pursuant to a “daytime” only search warrant commences before 10:00 PM but continues past 10:00 PM, the search is still lawful since a warrant is considered “served” at the time the premises are entered. (People v. Zepeda (1980) 102 Cal.App. 3d 1, 7-8.) Thus, a search commencing before 10:00 PM is considered a daytime search, regardless of how long the actual search takes.
V-9 H. Exceptions
Failure to show good cause for a night search in the affidavit is irrelevant if the warrant was executed in the daytime. (People v. Daily (1958) 157 Cal.App.2d 649, 653.) Thus, a search warrant served at 9:30 PM was served “in the daytime” as contemplated by section 1533, and no good cause or direction for nighttime service was required. (People v. Bruni (1972) 25 Cal.App.3d 196, 198; and People v. Glass (1976) 56 Cal.App.3d 368.)
It can also be argued that if the charged defendant was not inside the premises at the time of an unlawful nighttime entry, he or she lacks standing to object to the unlawful entry. See People v. Pompa (1989) 212 Cal.App.3d 1308, 1311, where this argument was held applicable to entries which were unlawful because of non-compliance with knock notice requirements.
Recall also that under Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, discussed in Section B of this chapter, violation of the night search statute should not result in suppression of the fruits of the search.
V-10 CHAPTER VI
INFORMANTS -- PROTECTING IDENTITY
A. Introduction
The primary statutory law regarding informant disclosure is set forth in Evidence Code sections 1040-1042. There are also a great many reported cases concerning informant disclosure. These cases and code sections establish certain well defined principles regarding disclosure. Unfortunately, these principles are often misunderstood and misstated. Many persons feel that disclosure of an informant’s identity is always necessary whereas, in fact, there are many grounds upon which disclosure can be avoided. Indeed, disclosure should be the exception and not the rule.
Generally, disclosure will be ordered if the informant was a percipient witness to the crime the defendant is charged with or if the defendant can show a “reasonable possibility” that the informant can testify in a manner that will exonerate the defendant or benefit his case. However, if the defendant is found in clear possession of contraband, or if there has been a lapse of time (even just a day or two) between the informant’s observations and the recovery of the contraband, disclosure should not be required.
The most significant factor in disclosure motions is whether or not the informant specifically named or described the defendant as possessing the contraband with which he is later charged. If the person named by the informant is the one later charged with possession of the contraband, then disclosure should not be required. The Evidence Code also provides for an in camera hearing at which the informant himself and/or other witnesses may be called by the prosecution in order to establish that the informant, in actuality, cannot offer testimony or evidence exonerating the defendant. Neither the defendant nor his attorney may appear at this hearing.
It is the purpose of this chapter to set forth the general principles of informant disclosure law and cite some of the applicable cases. This is not intended to be an exhaustive treatise nor a substitute for a careful reading of the cases. To a great extent, disclosure depends upon the exact facts of the individual case and the theories of exoneration propounded by the defendant. Thus, thorough knowledge of the factual context of the reported cases is essential. Techniques that may be employed during the preparation and execution of search warrants in order to lessen the likelihood of disclosure are discussed in Section G., below.
Also, while the issue of informant disclosure arises most often in the context of search warrants, the principles of informant disclosure law are applicable -- with minor variation -- to all cases involving the use of informants. Thus, this chapter can be of value in both search warrant and non-search warrant cases.
VI-1 B. Informant Disclosure -- General Principles
1. No Disclosure to Attack Probable Cause
Evidence Code sections 1040 through 1042 set forth the statutory law regarding confidentiality and disclosure of informants. Generally, an officer can refuse to name an informant if:
Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice. (Evidence Code section 1041; People v. Flannery (1985) 164 Cal.App.3d 1112, 1117.)
A sufficient showing of “public interest” against disclosure can be made by asserting that disclosure of the identity of the informant will impair his future usefulness to law enforcement and will endanger his life. (People v. Pacheco (1972) 27 Cal.App.3d 70, 80.) Indeed, merely referring to the informant as an informant brings him within the protection of Evidence Code sections 1040-1042. (People v. Otte (1989) 214 Cal.App.3d 1522.)
Further, Evidence Code section 1042 subd. (b) states that:
[W]here a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as the result of it.
Or, as stated by the California Supreme Court in the case of People v. Hobbs (1994) 7 Cal.4th 948, 959:
It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause. (Citations.) (Emphasis in original.)
(See also Theodor v. Superior Court (1972) 8 Cal.3d 77; People v. Keener (1961) 55 Cal.2d 711, 723; and People v. Flannery (1985) 164 Cal.App.3d 1112, 1117.)
2. Luttenberger Motions
The case of People v. Luttenberger (1990) 50 Cal.3d 1, permits the defense, upon a proper showing and in accordance with certain procedures, to discover police records and other background information on confidential informants. A Luttenberger motion seeks information about the reliability of an informant used in an affidavit for a search warrant but not the identity of the informant. Theoretically, if the defense can find information suggesting that the informant was not as reliable as the affiant stated, this information can
VI-2 then be used in a motion to traverse the search warrant. (See Chapter XI, Section H., Motion to Traverse Search Warrant.)
Typically, the defense will ask for reports or other information about past cases in which the informant provided information to police, the informant’s criminal record, payments to the informant, and any promises or representations made to the informant in exchange for information. Of course, if such information were given to the defense without limitation, this would jeopardize the confidentiality of the informant and his/her future usefulness to law enforcement. The California Supreme Court resolved this conflict between the defendant’s right to discovery and the People’s concern for protecting the confidentiality of informants by requiring the defense to make a substantial preliminary showing of the need for discovery and for an in camera review of all documents to strike any reference to an informant’s identity before any such discovery is provided to the defense.
The showing that the defense must make before an in camera review of documents by the judge can take place is as follows:
a. Raise a Reasonable Doubt
“[B]efore an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability of the information he furnished.” (Luttenberger at page 22.)
The case of People v. Duval (1990) 221 Cal.App.3d 1105, held that the defendant’s testimony that an informant did not exist did not justify informant disclosure or traversal of a search warrant. See also People v. Oppel (1990) 222 Cal.App.3d 1146, 1153, which held that the affidavit of the defense attorney on information and belief was not, as a matter of law, evidence that could constitute a factual showing justifying the divulgence of an informant’s identity.
However, in People v. Estrada (2003) 105 Cal.App.4th 783, the defendant submitted a declaration denying that he had made the controlled buy which provided the probable cause for a search warrant to search his residence. The Court of Appeal held that this was a sufficient showing to obtain discovery pursuant to Luttenberger.
b. Specify Information Sought
“[T]he motion for . . . discovery . . . should include affidavits supporting defendant’s assertions of misstatements or omissions in the warrant affidavit. Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it.” (Luttenberger at page 22.)
VI-3 c. Demonstrate Materiality of Information Sought
“To obtain an in camera hearing . . . the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination.” (Luttenberger at page 23.)
If the defendant does make the necessary preliminary showing and an in camera examination of documents takes place,
[T]he trial court should determine, in its in camera examination of the police records specified by the defendant, whether the defendant’s allegations of material misrepresentations or omissions are supported by the requested materials. If the trial court decides the documents do not support defendant’s charges of misrepresentation, the court should report only this conclusion to the defendant, and should not order production of any of the reviewed material. (Luttenberger at page 24.)
The Supreme Court then went on to say that,
If, on the other hand, the court finds the requested documents contain information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, then it should order disclosure of the documents to the defendant. Before doing so, the court must of course excise all information that could reveal the informant’s identity. (Luttenberger at page 24.)
Please note, however, that even if the defendant does make a showing of good cause for disclosure of documents, the court still retains discretion to protect against the disclosure of information which might hamper the prosecution or violate some governmental interest. The court noted, “this may be particularly true when the information sought is not directly related to the issue of a defendant’s guilt or innocence.” (Luttenberger at page 21.)
The Luttenberger case should be read carefully prior to litigating a Luttenberger motion.
3. Disclose Informant Only If “Material”
Evidence Code section 1042 and case law require that the identity of an informant must be disclosed:
[W]hen defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration. (Honore v. Superior Court (1969) 70 Cal.2d 162, 168. See also People v. Hobbs (1994) 7 Cal.4th 948, 959.)
VI-4 Such informants are referred to as “material witnesses.” (People v. Goliday (1973) 8 Cal.3d 771, 777.) They are distinguished from informants who are said to have, “merely pointed the finger of suspicion at the defendant” and who need not be disclosed. (People v. Wilks (1978) 21 Cal.3d 460, 469; In re Robert B. (1985) 172 Cal.App.3d 763, 770; People v. Hardeman (1982) 137 Cal.App.3d 823; People v. Martin (1969) 2 Cal.App.3d 121, 128; and People v. McCoy (1970) 13 Cal.App.3d 6, 13.)
Informants who may be determined to be material witnesses fall within two categories: 1) those who are eyewitnesses to or actual participants in the charged crime, and 2) those who “might” provide evidence favorable to the defendant.
An informant in the first category is usually referred to as a “percipient witness” and is typically an informant who was present during the commission of a charged crime such as an undercover buy of narcotics. Since he may offer a version of the events supporting a plea of innocence he is deemed material. For example, in the case of People v. Goliday (1973) 8 Cal.3d 771, two informants were present during an alleged sale of drugs by the defendant to an undercover officer. The defendant was arrested shortly thereafter and charged with this sale. The Supreme Court ordered disclosure on the grounds that, “the two informers might have supported the defendant’s plea of innocence to the sale count by testifying that the defendant declined to sell drugs to Officer Nettles.” (8 Cal.3d at pp. 778-9.) The Court also stated that the defendant need only show a reasonable possibility the informant might testify favorably on his behalf and need not prove conclusively that the informant would help his case. (See also In re Tracy J. (1979) 94 Cal.App.3d 472.)
An informant who was a percipient witness to the charged crimes need not be revealed if there is not even a “possibility” his or her testimony could benefit the defendant. Such a situation might arise if, for example, the crime was videotaped and the evidence of guilt overwhelming. In such a case the informant would arguably not be considered material on the issue of guilt. Also, if an in camera hearing is held (see Section F., below) and after examining the informant and/or other witnesses the judge is convinced the informant would not testify in a manner beneficial to the defendant, then disclosure should not be ordered. See People v. Lanfrey (1988) 204 Cal.App.3d 491, which held that it was proper to deny informant disclosure where after an in camera hearing the trial court ruled there was no reasonable possibility that the percipient witness informant could give evidence on the issue of guilt which might result in the defendant’s exoneration.
The second category of material informants consists of those who were not percipient witnesses to the charged crime but whose statements suggest that someone other than the defendant “might” have committed the crime charged.
For example, assume the informant says Mr. Adams is dealing heroin at a location. However, only Mr. Baker is there when the location is searched and heroin recovered. Mr. Baker is then arrested and charged with the heroin possession. The courts have held that Mr. Baker has a right to know the identity of the informant because the informant might say that the heroin really belonged to Mr. Adams. The defendant (Mr. Baker) need
VI-5 not offer proof that the informant will testify that the heroin belonged to Mr. Adams. Instead, he need only point to the informant’s own statement that Mr. Adams was the one who had the heroin at the location and assert that therefore the informant “might testify it belonged to Mr. Adams.”
This is exactly what happened in People v. Garcia (1967) 67 Cal.2d 830. The two informants named three persons as selling heroin from a location. A search warrant was issued for that location, and heroin was found under a mattress. Defendant Garcia was arrested at the location but the three persons named by the informants were not there. Garcia claimed he had only entered the location one-half hour earlier to get a fix and had no knowledge of the narcotics. He sought disclosure of the informants claiming they would exonerate him by testifying that the heroin belonged to the three persons named by the informants. The Supreme Court agreed with the defendant and stated the informants were material witnesses and must be disclosed since they might say the heroin belonged to the three named persons and not Garcia.
In Honore v. Superior Court (1969) 70 Cal.2d 162, the informant was in the defendant’s apartment along with three or four others while the defendant herself was in jail. The informant left the apartment and told the police he had seen marijuana inside the apartment. Later that same day the defendant was released from jail and returned home. Shortly thereafter the police arrived with a search warrant and recovered marijuana. The informant was held material since he had been in the apartment earlier with the others and would be able to say if the marijuana was there before the defendant got home and if one of the others at the location might have brought it into the apartment without defendant’s knowledge or consent. (Honore v. Superior Court at pp. 168-169; see also People v. Reynolds (1982) 137 Cal.App.3d 1016.)
The general principle requiring disclosure in cases in which the informant’s statements implicate someone other than the defendant is set forth in the following quotation from Williams v. Superior Court (1974) 38 Cal.App.3d 412 at page 423. This quotation should be read carefully:
Where possession of contraband is among the elements of the crime charged and it is imputed to the defendant by reason of the location at which the contraband is discovered by the police, and where such discovery stems in whole or part from an informer’s very recent observation of contraband on those same premises, the Supreme Court has compelled disclosure of the informer’s identity if the evidence shows that persons other than the defendant were on the premises when the informer observed the contraband and that the defendant was not then present or may not have been present, or if the record is silent as to whether the defendant was present. (Citations deleted.)
The significance of Williams is that if the informant does name the defendant as being in possession when he (the informant) observed the contraband, then disclosure should not be required. For example, in the case of People v. Thomas (1975) 45 Cal.App.3d 749, an informant told police that he had been present at the named defendant’s residence and
VI-6 saw high grade heroin in the defendant’s possession. A search was conducted (by police and the defendant’s parole agent) and the defendant was discovered bending over a dresser with his hand extended towards an open dresser drawer. Heroin was found in the drawer and the defendant told the officer it was his.
At the disclosure hearing, the defendant denied knowledge of the heroin and denied admitting it was his. He claimed that the informant knew whom the heroin belonged to and would say it belonged to a Vido Tolliver.
The trial judge denied the informant disclosure motion and the Court of Appeal affirmed. The appellate court stated that in view of the statements of the informant to the police that the defendant possessed the heroin and the circumstances of the seizure there was no “reasonable possibility that the informant could give evidence that might tend to exonerate the defendant.” (Thomas at page 754.)
Similarly, in People v. Hardeman (1982) 137 Cal.App.3d 823, the informant’s statement in the affidavit supporting the search warrant specifically related that it was the named defendant alone whom the informant observed selling heroin. This fact was given great weight by the Court of Appeal in denying disclosure of the informant’s identity. (Hardeman at page 829.)
In Williams v. Superior Court (1974) 38 Cal.App.3d 412 (the case quoted at length above), the affidavit for a search warrant was based upon the statement of an informant that on the day before the search and on the day of the search he had seen the defendant and another person packaging and selling heroin in the defendant’s residence. Upon executing the warrant, hand rolled balloons of the heroin were found in the defendant’s dresser drawer. The court stated that there was a “reasonable possibility” that the informant might testify that the defendant was merely present when he (the informant) had been at the residence and that the heroin was sold, packaged, and controlled solely by the other person present. The court further stated that from such testimony the trier of fact might infer that the defendant had no control or right to control the heroin later found in her dresser and had no knowledge of its presence there. (Williams at page 422.) See also People v. Tolliver (1975) 53 Cal.App.3d 1036, which required the disclosure of the informant when narcotics were found within a residence occupied by two suspects. The court ruled that the informant, who had been within the residence and purchased heroin from both defendants according to his statements to the affiant, . . . might have given testimony in favor of defendant Calep or in favor of defendant Tolliver, which would throw the onus of control or right to control the narcotics found in the premises on the other defendant or on some third person present in the residence when the informer was there. (People v. Tolliver (1975) 53 Cal.App.3d at page 1050.)
In Tolliver, and in Williams, the narcotics were not found in the actual physical possession of either defendant and the informant’s observations were “very recent.” But if the defendants had been in actual possession at the time of service of the warrant or if there had been a lapse of time since the informant’s observations, then disclosure would be unlikely. (See Sections C. and D., below.) Further, disclosure could be avoided by
VI-7 presenting evidence at an in camera hearing that the informant could not testify in a manner which would benefit the defendant. (See Section F., below.)
Disclosure was not ordered in the case of People v. Wilks (1978) 21 Cal.3d 460. In this case, an informant told police that narcotics were being sold by persons in a particular motel room and described the suspect (defendant) who was supplying the narcotics to those persons. Police staked out the location and observed the defendant (who matched the description given by the informant) enter the motel room, remain a short time, and then leave. The defendant began walking to a second motel. Officers approached him and he ran into apartment No. 6 of the second motel and then quickly exited and voluntarily approached the officers.
After conversing with the officers, the defendant gave consent to search apartment No. 6 of the second motel. During that search, nine balloons of heroin, narcotic paraphernalia, and a revolver were found. After denial of an informant disclosure motion, the defendant was convicted of illegal possession of heroin and ex-con with a gun.
The Supreme Court affirmed the trial court’s denial of the disclosure motion. The Court ruled that under the facts of the case, the informant’s information related only to probable cause for the defendant’s detention, and there was no reasonable possibility the informant could give exonerating evidence. The Court stated:
Here, the informant’s sole relationship to the case was to provide partial justification for appellant’s detention. This was a separate issue which had been adjudicated at the pretrial hearing on the motion to suppress. Further, the prosecutor did not attempt to inject this issue into the trial. Therefore, the trial court was not required to order the disclosure of the identity of the informant. (Wilks at page 469, citations deleted.)
This case is significant since it is a unanimous decision of the California Supreme Court. Furthermore, the case reaffirmed the principle that, “an informant is not a material witness when he simply points the finger of suspicion toward a person who has violated the law.” (Wilks at page 469, citations deleted.)
4. Burden of Proof on Defendant -- Exonerating Evidence Only
The case law is quite explicit that the burden of showing the materiality of an informant is on the defendant.
“We emphasize that a defendant seeking to discover the identity of an informant bears the burden of demonstrating that, in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.” (People v. Garcia (1967) 67 Cal.2d 830, 839.)
VI-8 In People v. Brownlee (1977) 74 Cal.App.3d 921, the Court held, “It is incumbent on Brownlee to justify the request for disclosure of the identity of the informant by showing that there is a reasonable possibility that the informant could produce evidence establishing his innocence.” (74 Cal.App.3d at page 930; see also In re Robert B. (1985) 172 Cal.App.3d 763, 769-770; People v. Hardeman (1982) 137 Cal.App.3d 823, 828; and People v. Reel (1979) 100 Cal.App.3d 415, 423.)
Similarly, the case of People v. Fried (1989) 214 Cal.App.3d 1309, 1314-1315, held that the burden of showing grounds for disclosure falls upon the defendant and that, “[T]he mere assertion that the informant is a material witness. . .does not trigger the requirements [for disclosure].” The court noted: “Here, defense counsels’ offer of proof failed to demonstrate that the informant was in a position to perceive ‘. . .either the commission or the immediate antecedents of the alleged crime’ or that the informant did more than simply point ‘the finger of suspicion’ at defendants.” (Fried at page 1315, citations omitted.)
The case of People v. Duval (1990) 221 Cal.App.3d 1105, also denied informant disclosure. In this case the defendant was found within his residence at the time of the search and cocaine was recovered. He said he lived in the residence alone and admitted being a “small dealer.” In denying the disclosure motion, the Court of Appeal stated, “It is clear from the record in the case before us that the informant was not a witness to the search which took place several days after he or she provided information to Deputy Miller. It is also clear, given the circumstances of this case, there was no reasonable possibility the informant would have supplied evidence tending to exonerate [defendant].” (Duval at page 1114.)
The case law is explicit that evidence on the “issue of guilt” refers to exonerating evidence only. “We find no support . . . for appellant’s contention that the identity of an informant must be disclosed where the only material testimony on the issue of guilt which the informer could give would be incriminating.” (People v. McCarthy (1978) 79 Cal.App.3d 547, 554. See also People v. Garcia (1967) 67 Cal.2d 830, 839-40; People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080-81; and People v. Wagner (1982) 138 Cal.App.3d 473, 482.)
C. Defendant in Possession; Overwhelming Evidence of Guilt -- No Disclosure
If the defendant is found in clear possession of the contraband recovered, disclosure should not be granted. In People v. Acuna (1973) 35 Cal.App.3d 987, a charge of possession of heroin for sale was based solely upon the balloons of heroin found in the defendant’s pocket. The Court stated there was no reasonable possibility that the informant, who was not present when the narcotics were found, could give evidence that might exonerate the defendant. See also People v. Rogers (1976) 54 Cal.App.3d 508, 518-19, in which a heroin for sale charge was based solely upon two condoms of heroin found in the defendant’s pants pocket. In neither case was disclosure ordered even though the informants’ statements indicated a thorough knowledge of the defendants’ dope dealing and implicated other persons as well as the defendants. Defendants’ actual possession was held to be the determining factor.
VI-9
Similarly, in People v. Garcia (1970) 13 Cal.App.3d 486, the defendant was observed throwing a balloon of heroin out his car window. The Court stated that the informant who originally directed the police to the defendant need not be disclosed.
In the case of In re Benny S. (1991) 230 Cal.App.3d 102, a confidential reliable informant gave information resulting in the arrest of the suspect. The suspect was charged with possession for sale of marijuana found in his pocket. Informant disclosure was denied and the Court of Appeal affirmed. It said,
Here the charged offense was not sale of either cocaine or marijuana but possession for sale of the marijuana found in the pocket of the jacket appellant was wearing. In such circumstances the cases have consistently found the confidential informant not a material witness. (At pp. 108-109.) (Emphasis in original.)
In People v. Hambarian (1973) 31 Cal.App.3d 643, 660, the Court pointed out that since contraband was found throughout the defendant’s residence, along with numerous items identifying him as being the occupant of the residence, the evidence of guilt was so “overwhelming” there was nothing the informant might say which could exonerate the defendant. See also People v. Goliday (1973) 8 Cal.3d 771 (discussed in Section E., below) which involved similar facts and also held disclosure was not necessary as to a charge of straight possession.
A similar situation was presented in the case of People v. McCoy (1970) 13 Cal.App.3d 6. In McCoy the premises searched was a ranch with numerous residences and occupants. Contraband and items of identification were found at various locations on the premises along with 11 persons who were arrested and charged. The informant was quite familiar with the ranch and had been there on many occasions, including the day preceding the search. Although no person was found in actual possession of contraband, the Court of Appeal held the informant was not material. In reversing the trial court’s order of disclosure, the Court of Appeal stated:
That search produced ample evidence, both circumstantial and in some cases direct, that the 11 defendants were then in possession of various items of contraband. When the defendants moved for disclosure of the informant’s identity, they failed to testify or produce witnesses or declarations articulating the theory of their defense or demonstrating in what manner they would be benefited by the disclosure of the informant’s identity. . . . Under the circumstances here present, the defendants did not sustain their burden of demonstrating a reasonable possibility that the informant could give evidence which might result in the exoneration of any of them. Disclosure of an informant’s identity clearly may not be required for purely speculative reasons, hence the trial court abused its discretion in doing so. (McCoy at page 13.)
Another case involving both direct and circumstantial evidence of possession is People v. Alvarez (1977) 73 Cal.App.3d 401. In this case a search warrant was served and contraband was found in the defendant’s left front pants pocket and throughout his apartment. The defendant was arrested, advised, and admitted that everything the officer found was his. There was no
VI-10 dispute that the defendant was the man described by the informant. Several persons were in the apartment when the search warrant was served.
The trial court ordered disclosure, but this was reversed by the Court of Appeal. The appellate court held that the defendant’s claim that the police planted the heroin was “not a reasonable possibility.” The Court said that there must be some showing that the contraband was “planted,” otherwise such a claim could be made in every case and this would completely destroy the informant privilege protection. (Alvarez at page 406.)
The appellate court in Alvarez also distinguished the often cited case of People v. Borunda (1974) 11 Cal.3d 523, in which the Supreme Court ruled that a reasonable possibility of a “plant” had been shown. In Borunda, the arresting officer testified that following the informant’s controlled buy of a red balloon of heroin from the defendant, he (the officer) entered the defendant’s residence and caught the defendant in the act of flushing a green balloon of heroin down the toilet. The officer testified he recovered the green balloon, but the defendant’s sister testified that she observed the officer recover only an empty plastic baggy from the toilet. The defendant asserted that the informant should be disclosed because the informant would testify that he gave the officer the green balloon of heroin and not a red balloon. The Court agreed this was reasonably possible in view of the evidence and affirmed the trial court’s disclosure order. The Court also noted that the red balloon was never produced.
Another case involving a defendant caught flushing dope down a toilet is People v. Castillo (1969) 274 Cal.App.2d 508. Disclosure was not required in this case since no showing had been made that the informant could possibly exonerate the defendant in view of the evidence before the court. A study of Alvarez, Borunda, and Castillo shows that minor factual differences can be of great significance in informant motions.
A number of other cases have affirmed the principle that disclosure of an informant’s identity will not be required if evidence of the defendant’s guilt of the charged crime is overwhelming. In People v. Green (1981) 117 Cal.App.3d 199, disclosure was denied based upon the large quantity of heroin discovered and its location in relation to the defendant’s personal belongings. Also, the fact that the defendant’s possession might not be exclusive did not require disclosure. The charge in this case was possession of heroin for sale. See also People v. Lizarraga (1990) 219 Cal.App.3d 476, which involved similar facts and a similar holding, including the fact that informant disclosure need not be ordered even if the defendant’s possession of heroin for sale was not exclusive and others lived in his residence.
Similarly, in People v. Karmelich (1979) 92 Cal.App.3d 452, a search warrant was obtained for a motel room based upon statements from an informant that he had been in the room and purchased heroin from the two defendants within it. The warrant was executed and heroin and paraphernalia discovered along with the two defendants. They were charged with simple possession of heroin only and as to that charge the Court of Appeal ruled disclosure was not required even through the informant, if revealed, might testify only one defendant was the actual seller. The court said that the fact both defendants were clearly in control of the room and its contents was sufficient to sustain a charge of straight possession. (Karmelich at page 455.)
VI-11 See also People v. Hardeman (1982) 137 Cal.App.3d 823, 832, in which the court stated:
In circumstances such as those present in this case, where the charge of constructive possession is based on the location of narcotics discovered pursuant to a valid search warrant, and upon the immediate contemporaneous personal observations of the arresting officers, the unnamed informant who furnished information relative only to the probable cause is not a material witness to the issue of guilt.
Similarly see also People v. Duval (1990) 221 Cal.App.3d 1105, 1114; People v. Saldana (1984) 157 Cal.App.3d 443, 460-461; and People v. Thompson (1979) 89 Cal.App.3d 425, 433.
An informant was also held not material in the non-search warrant case of In re Robert B. (1985) 172 Cal.App.3d 763. In this case an informant told a school security guard that Robert B. and others were selling marijuana on campus. A day or two later the guard saw a group of five students, including Robert B. Two of the students were exchanging money. The security guard had a contact with these students regarding marijuana in the past. He asked them to accompany him to the office. As they did so, the guard saw Robert take a pack of cigarettes out of a pocket and put it into his sleeve. In the office, the cigarette pack was recovered and found to contain 13 marijuana cigarettes.
Robert B. was charged with possession of marijuana and his attorney moved for disclosure of the informant. His motion was denied and the Court of Appeal affirmed, stating the following reasons:
Although defense counsel argued that the informer might have seen Robert hand the cigarette box to someone else that morning, and that someone else might have put the marijuana in the box, or the informer could have had knowledge of who else had possession of the box and what was in the box, there was absolutely no showing that the informer had any contact with Robert that day, or that the informer was either a witness to or participant in the suspicious incident by the science building. A defendant’s showing must encompass more than speculation. (People v. Green (1981) 117 Cal.App.3d 199, 208.) Robert presented only the bare, unsupported speculation that the informer may have been able to offer exonerating testimony, but failed to provide any evidentiary basis for raising this mere speculation to the “reasonable possibility” which would entitle him to disclosure of informant. (In re Robert B. at pp. 769-770.)
See also People v. Galante (1983) 143 Cal.App.3d 709, wherein defense counsel was criticized for offering purely speculative reasons for informant disclosure. The Court of Appeal noted:
At appellant’s preliminary examination, his counsel, apparently not feeling constrained by any consideration for reality, posited various mutually inconsistent hypotheses that might, theoretically, explain how a person could conceivably find himself in appellant’s position without necessarily being guilty of the offense charged. It was never once suggested, however, that there was a basis in fact for any of these musings nor that appellant himself claimed that any of them were true. (Galante at page 711.)
VI-12 Galante also holds that informant disclosure is not required even though the defendant’s past possessions of contraband may not always have been exclusive. (Galante at page 712.)
Another case where disclosure was denied based upon the circumstances of possession is People v. Alderrou (1987) 191 Cal.App.3d 1074. In this case, an informant said “Bill,” the defendant’s middle name, was the person he bought cocaine from at a certain location on several occasions. Officers then used the informant to make a controlled buy from the defendant at that location. Based upon the informant’s statements and the controlled buy, officers obtained a search warrant for that location.
When officers entered to serve the warrant, the defendant was not at home but his girlfriend was there. During the search miscellaneous papers with defendant’s name and no others were found in an attaché case along with some keys. The keys opened a safe in defendant’s bedroom closet in which cocaine was found. There was also a combination safe in the same closet.
During the search the defendant arrived home. Officers told him they were considering the arrest of his girlfriend since she shared the bedroom with the defendant. Defendant then told the officers that his girlfriend had nothing to do with the cocaine and that everything related to the cocaine belonged to him. He then opened the combination safe and cocaine sales paraphernalia was found within. Defendant was charged with possession of cocaine for sale.
In the trial court defendant’s motion for informant disclosure was denied. The Court of Appeal affirmed. The Court of Appeal noted that the defendant’s possession, dominion and control of the narcotics and sales paraphernalia were proved conclusively by the evidence discussed above and that, “one would have to engage in wild speculation about convoluted improbable plots to come up with a scenario which would produce testimony from this confidential informant tending to exonerate this appellant of this offense.” (Alderrou at page 1083.) A case with similar facts and a similar holding is People v. Dimitrov (1995) 33 Cal.App.4th 18, 30-31.
The Court of Appeal in Alderrou also said that even if the confidential informant had said he received his cocaine from the defendant’s girlfriend, that still would not have tended to exonerate the defendant of the crime of possessing the cocaine found in his bedroom safe for purposes of sale and that to be guilty of possession for sale he did not have to personally sell the cocaine nor need he have sole and exclusive possession of it. (191 Cal.App.3d at page 1082. See also People v. Lizarraga (1990) 219 Cal.App.3d 476.)
Most informant cases involve illegal possession of drugs. But the principles remain the same regardless of the charge. In the case of People v. Brownlee (1977) 74 Cal.App.3d 921, an informant told police that the defendant was a burglar and in possession of stolen items at his residence. Following surveillance, the defendant was arrested and his premises searched. Many stolen items were found. It was also noted that others lived at the same residence.
The defendant made a disclosure motion, claiming that the informant could testify that the other residents were in possession of the stolen property. Both the trial court and the Court of Appeal denied this motion. Both courts stated that since the charges against the defendant (burglary and attempted burglary) were based primarily upon eyewitness testimony and fingerprints at the
VI-13 scene of the burglary, the issue of who possessed the stolen items at this defendant’s residence was not grounds to disclose the informant. The court stated:
Brownlee was not charged with receiving or possessing stolen property and it would be completely irrelevant whether or not Jordan or Perkins (co-residents) had possession of the loot. The fact that Brownlee was apprehended at the residence where the loot was recovered merely justified an inference that was the point to which he delivered the loot after the burglaries. Whether he then continued to possess it or gave it away or sold it to others would be irrelevant to the charge of burglary which was complete as soon as Brownlee entered the victims’ residence with the requisite criminal intent. (Brownlee at page 930.)
Similarly, in People v. Reel (1979) 100 Cal.App.3d 415, which involved a charge of possession of weapons by an ex-felon, and in which the informant provided no information regarding firearms but only of defendant’s possible possession of heroin, the Court of Appeal stated, “(T)he record supports no inference other than sheer and unreasonable speculation that the informant could testify to anything concerning the firearms.” (Reel at page 423.)
In the case of People v. Luera (2001) 86 Cal.App.4th 513, a citizen informant reported to police that the defendant had images of child pornography on his home computer. Officers obtained and executed a search warrant in defendant’s home where defendant admitted to the officers that he had been downloading child pornography from the Internet and then produced one of those downloaded images on his computer screen. Police found additional, explicit images of child pornography on defendant’s hard drive. Both the trial court and the Court of Appeal held that under these facts the informant need not be disclosed and that the defendant’s suggestion that it might have been the informant who downloaded the child pornography onto the defendant’s computer was mere speculation.
It is conceivable that in any particular case an explanation for actual possession could be propounded that would result in a disclosure order. Thus, actual possession should not be considered the sole determining factor in a disclosure motion. (People v. Aguilera (1976) 61 Cal.App.3d 863, 870, fn. 7.) Note, however, that an “explanation” of actual possession should not be confused with a merely speculative hypothesis as to actual possession. (See People v. Oppel (1990) 222 Cal.App.3d 1146, 1153; People v. Duval (1990) 221 Cal.App.3d 1105, 1113; People v. Galante (1983) 143 Cal.App.3d at page 711; and People v. Reel (1979) 100 Cal.App.3d at page 423.)
D. Lapse of Time Since Informant’s Observations
The more time that passes between the informant’s observations and the actual search, the less likely it is that disclosure will be ordered. (People v. Hardeman (1982) 137 Cal.App.3d 823, 828.) In most of the well known cases requiring disclosure, the informant was present at the defendant’s residence on the day before the search or the same day. (See, for example, People v. Goliday (1973) 8 Cal.3d 771; Honore v. Superior Court (1969) 70 Cal.2d 162; and People v. Garcia (1967) 67 Cal.2d 830.)
VI-14 But in cases in which a day or days have passed between the day of the informant’s observations and the day of the search, the courts have denied disclosure, reasoning that the fact the informant saw contraband on one day does not necessarily mean that he knows anything about any contraband found on subsequent days. The courts have held that it is only “speculation” and “not a reasonable possibility” that the informant might know something about contraband recovered subsequent to his own observations. See, for example, People v. Hardeman (1982) 137 Cal.App.3d 823, 829 -eight day lapse; People v. Reel (1979) 100 Cal.App.3d 415, 423 -- 36 hour lapse; People v. Alvarez (1977) 73 Cal.App.3d 401 -- seven day lapse; People v. Long (1974) 42 Cal.App.3d 751 -- 17 day lapse; People v. Hambarian (1973) 31 Cal.App.3d 643 -- four day lapse; People v. Duval (1990) 221 Cal.App.3d 1105, 1114 -- several days lapse; and People v. McCoy (1970) 13 Cal.App.3d 6 -- one day lapse. Disclosure was denied in all these cases, largely because of the passage of time.
The significance of the passage of time was also stressed in the case of Williams v. Superior Court (1974) 38 Cal.App.3d 412, 423, in which the court noted that disclosure is usually ordered only where discovery and seizure of contraband “stems in whole or part from an informer’s very recent observation of contraband on those same premises . . .” (Emphasis added.) (See also People v. Thomas (1975) 45 Cal.App.3d 749.)
Thus, if there is a lapse of time and the defendant is found in clear possession of the items upon which the charges are based, disclosure should not be granted. This is particularly true if the defendant was personally named or described by the informant as being in possession of the items in question. (See Williams v. Superior Court, People v. Hardeman, People v. Thomas, and the other cases cited above.)
E. Informant Not Material on All Counts; Not Material for Possession Only
Certain cases have held that in a multiple count prosecution an informant may be a material witness to one count but not material to another. These cases are particularly valuable in that they illustrate and clarify the principles of informant disclosure law by distinguishing between counts in which the informant is and is not material within the same factual context. For example, an informant would probably be material as to a sale charge arising out of an undercover buy which he set up and witnessed but might not be material to a possession count arising out of the follow-up arrest and search of the same defendant sometime later. An example of this is People v. Goliday (1973) 8 Cal.3d 771.
In the Goliday case, two informants accompanied undercover officers while they bought narcotics from the defendant in his residence. Five minutes later the officers returned, arrested the defendant, searched the residence and recovered approximately 800 pills in various caches throughout the location. The California Supreme Court said that the informants were material witnesses to the sale count since they were percipient witnesses to that crime. But as to the count alleging possession for sale, the Court said the defendant clearly exercised dominion and control over the caches of pills found in his apartment and that the quantity alone was enough to show that the defendant intended to sell them. The Supreme Court concluded:
VI-15 If the inference that the defendant possessed the drugs for sale had rested solely on the alleged narcotics transaction with Officer Nettles, the defendant’s access to the eyewitness informers might have been crucial to his defense. We face, however, a different case. Here the large quantity of narcotics properly supports an inference that the defendant intended to sell them. Therefore, the defendant did not suffer a denial of a fair trial by the absence of the informants. (8 Cal.3d at page 784, citations deleted.)
The courts have also held informants to be material on a charge of possession for sale but not material if the charge is reduced to straight possession. This occurred in People v. Long (1974) 42 Cal.App.3d 751, and People v. Lamb (1972) 24 Cal.App.3d 378. In both of these cases the court held that the circumstances of the recovery of heroin were such that the informant could offer no evidence to exonerate the defendant of a charge of straight possession, but since the officer’s opinion that the defendant possessed the heroin for sale was based largely upon the statements received from an informant and not from the heroin recovered alone, the informant was material as to the possession for sale count. Arguably it would be improper in any case for an officer to consider such statements by an informant in expressing his opinion during the guilt phase of a possession for sale trial since the informant’s statements would be inadmissible hearsay at the trial.
But please take note that in neither the Long nor Lamb case did the informant specifically name or describe the defendant as the one who was selling heroin from the location. So it was “reasonably possible” the informant would say that someone else was the heroin dealer from that location and not the charged defendant.
F. Court Proceedings -- Open Court Hearing, In Camera Hearing
Evidence Code section 1042, subd. (d), establishes the procedure to be followed in litigating the issue of disclosure. This subdivision provides for an open court hearing at which all parties may present evidence on the issue of disclosure and for an in camera (i.e., in chambers) hearing from which the defendant and his attorney are excluded.
At the open court hearing the defendant will attempt to show that the informant is a material witness and should therefore be disclosed. Usually this is done by argument alone, but both sides may call witnesses and present evidence if they wish. In the event disclosure is not ordered, the defendant’s only recourse is to attempt to get a reversal in a higher court, usually by way of an appeal following conviction.
But if the trial court rules that the defendant has made a prima facie showing justifying disclosure, then the prosecutor has four options. He or she can agree to disclose the informant; he or she can seek a reversal in a higher court by filing an appeal; he or she may dismiss the counts to which the informant was deemed material; or the prosecutor can request an in camera hearing. An in camera hearing can be requested only by the prosecution (In re Benny S. (1991) 230 Cal.App.3d 102, 107) and, “[i]f such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. . . .” (Evidence Code section 1042, subd. (d).) See also, People v. Aguilera (1976) 61 Cal.App.3d 863, 870; People v. Blouin (1978) 80
VI-16 Cal.App.3d 269, 288; and People v. Reel (1979) 100 Cal.App.3d 415, 423, all of which hold specifically that an in camera hearing is mandatory if requested by the prosecution.
At the in camera hearing the prosecutor will present evidence showing that the informant cannot exonerate or benefit the defendant. If, after the in camera hearing, the judge rules that the informant cannot exonerate the defendant or help his case, then the informant “shall not” be disclosed. (Evidence Code section 1042.) Further, case law makes it clear that disclosure is prohibited even though the defendant did make an initial prima facie showing at the open hearing that there was a reasonable possibility the informant might benefit the defendant. (See People v. Brown (1989) 207 Cal.App.3d 1541, 1548; People v. Galante (1983) 143 Cal.App.3d 709; People v. McCarthy (1978) 79 Cal.App.3d 547, 555; People v. Pacheco (1972) 27 Cal.App.3d 70, 80; and People v. Wagner (1982) 138 Cal.App.3d 473, 482.) These cases specifically involve situations in which the trial court first ruled that the defendant had made a showing at the “open court” hearing that there was a reasonable possibility that the informant was material. But after an in camera hearing, the trial courts ruled that the informant could not, in actuality, exonerate the defendant or benefit his case. Thus, disclosure was denied in these cases.
In McCarthy the Court of Appeal stated: “When an in camera hearing has been held and the trial court has concluded. . .that the informant does not have knowledge that would tend to exonerate the defendant, disclosure of the identity of the informer is prohibited by Evidence Code section 1042. . . .” (McCarthy at page 555.)
In Pacheco the Court of Appeal stated:
A reading of the transcript of the in camera hearing leaves no doubt that the informant’s information could be of no help to defendant, and that the concealment of his identity could not possibly deprive defendant of a fair trial. Assuming, however, that there is a bare possibility that the informant’s information could possibly benefit defendant, that benefit would be of so little value that it should not be weighed against the great harm to the public and to the informant which would result from the disclosure of the informant’s identity. (27 Cal.App.3d at page 81.)
Brown, Wagner and Galante contain similar language.
It should be noted that there is neither statutory law nor case law requiring the informant to personally appear at the in camera hearing. Or, as stated in the case of People v. Lee (1985) 164 Cal.App.3d 830, 839:
[T]he statute does not expressly require the prosecution to produce the confidential informant before the trial court may make a determination. Defendant has not cited and we have not found any authority conditioning the trial court’s determination of materiality on the presence and testimony of the confidential informant.
The case of People v. Alderrou (1987) 191 Cal.App.3d 1074, specifically addressed the issue of whether the informant must attend the in camera hearing and held that the answer was no. The
VI-17 Court said, “[n]either expressly nor by implication does Evidence Code section 1042, subd. (d) require the confidential informant to be present or to testify at the in camera hearing. Instead, that section says at the in camera hearing “the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant. . . .” (Evidence Code section 1042 subd. (d), emphasis added.) It says nothing about the type of evidence to be offered on these issues. (191 Cal.App.3d at page 1079.) The cases of People v. Fried (1989) 214 Cal.App.3d 1309 and People v. Dimitrov (1995) 33 Cal.App.4th 18, 29-30, both hold that the informant is not a necessary witness at an in camera hearing.
Case law does require the informant to be sworn if called as a witness at the in camera hearing. (People v. Gooch (1983) 139 Cal.App.3d 342.) Other witnesses must be sworn also.
Evidence Code section 1042, subd. (a), specifies that a court reporter be present at the in camera hearing but also states explicitly that any transcript of the proceeding as well as physical evidence introduced must be sealed and that only a court may review the proceedings. Neither the defendant nor his attorney can participate in the in camera hearing in any manner whatsoever and cannot review it even for appeal purposes. This was made abundantly clear in the case of People v. Galante (1983) 143 Cal.App.3d 709, 712, wherein the Court of Appeal strongly criticized the trial court for allowing the defense attorney to participate telephonically in the in camera hearing. The Court of Appeal stated, “[s]uch a procedure was, of course, extraordinarily dangerous and one that we trust will never again be repeated.” (143 Cal.App.3d at page 712.) The constitutionality of the absolute non-participation of the defense in an in camera hearing has been upheld. (People v. Pacheco (1972) 27 Cal.App.3d 70, 81-83.)
As a matter of procedure, an in camera hearing should be requested as soon as it appears that the defendant will be able to make a prima facie case for disclosure. Necessary witnesses should be available so that delay will be avoided. However, there is no statutory law or case law specifically addressing the issue of time limits, delay, right to speedy hearing, etc., in regard to informant hearings. As a minimum, good faith efforts to request and conduct in camera hearings in a timely manner should be made.
It is not necessary for an in camera hearing to be held in the courthouse. The only requirement is that a judge, a court reporter, and a prosecutor and his witnesses be present. Caution should be exercised in arranging the hearing so that neither the defendant nor his attorney will know where or when the hearing will be conducted.
At the hearing the prosecutor should call witnesses and present evidence establishing that the informant cannot, in actuality, exonerate the defendant or benefit his case. The informant himself need not necessarily be called depending upon the facts of the case and other evidence available.
Since defense counsel will not be present, the prosecutor should question the witness(es) fully and also inquire if the judge wishes to question the witness(es) or desires additional evidence. The record of such proceedings is subject to review by an appellate court, but it will not be shown to the defendant or his attorney.
VI-18 An innovative hearing procedure was approved in the case of People v. Flannery (1985) 164 Cal.App.3d 1112. In this case, the informant was out of state. The judge and deputy district attorney went to a police station. They placed a telephone call to the informant who was located at an out-of-state police station. An officer was with the informant. The informant was sworn over the phone by the judge and then questioned by the prosecutor. A court reporter transcribed the conversation. Also, a videotape was made of the informant during this procedure. Thereafter, the videotape was sent to the judge who then reviewed the tape and transcript and ruled that the informant was not a material witness on the issue of guilt and need not be disclosed. The videotape was sealed along with the transcript of the in camera hearing. The Court of Appeal reviewed this procedure, approved it, and agreed the informant need not be disclosed. (164 Cal.App.3d at pp. 1115-1116.) The Court of Appeal also praised the trial court for its innovation. (164 Cal.App.3d at page 1122.)
In the event the trial court judge at the open court/all parties hearing does not order disclosure and an appellate court reverses and says that disclosure should have been ordered, on remand an in camera hearing can be requested just as if the judge had originally ruled that prima facie justification for disclosure had been established. (People v. Reynolds (1982) 137 Cal.App.3d 1016; Goodlow v. Superior Court (1980) 101 Cal.App.3d 969; and In re Tracy J. (1979) 94 Cal.App.3d 472.)
G. Reducing Likelihood of Disclosure
The preceding discussion shows that disclosure of an informant’s identity is contingent upon a combination of several factors:
• Whether the charged defendant was named and/or described by the informant. • How much time elapsed from the informant’s observations to the time of the search. • Who was at the premises at the time of the search. In particular, was the named defendant there. • The exact place(s) the contraband was found including, in particular, if it was found in the physical possession of the defendant. • The theory of defense propounded by the defendant’s attorney.
If consideration is given to these factors during the preparation of the search warrant affidavit and in the service of the search warrant, then the likelihood of disclosure can be reduced.
The main factor within the control of the officer or deputy district attorney preparing the affidavit is the manner in which the informant’s statement is related in the affidavit. Not everything said by the informant must necessarily be included so long as probable cause for the search is established. But in order to lessen the likelihood of disclosure, it is important in the preparation of the affidavit to specifically tie the suspect to the crime under investigation and assert he is acting alone, as was done in People v. Hardeman (1982) 137 Cal.App.3d 823, 829. If there are multiple suspects, state the participation of each and exclude others so a defendant cannot claim the informant might testify that only one of them or a third party is the real culprit. Of course, the affiant must obtain this information from the informant before it can be included within the affidavit.
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For example, assume that a reliable informant states that he has been in a particular location and has seen heroin being sold there. However, he does not name the person selling the heroin and offers only a vague physical description. Assume also that a search warrant issues and that heroin is found within the location. The defendant is inside the location at the time of the search, but no heroin is found on his person. In a case such as this, the defendant would ask that the informant be disclosed based on the assertion that the informant might possibly say that the defendant was not the man selling heroin from the location. Disclosure would likely be ordered. (See People v. Lamb (1972) 24 Cal.App.3d 378.)
However, disclosure could have been avoided if in the affidavit (and through the affiant) the informant had specifically named and described the defendant as the person selling heroin and stated explicitly that the defendant alone sold heroin from that location. In such a case, the defendant could not claim the informant might say it was another man since the informant had pointed to the defendant alone as possessing and selling heroin within that location. (People v. Thomas (1975) 45 Cal.App.3d 749, 754; and People v. Hardeman, supra, at page 829.) The affidavit would be written as follows (as to this point):
. . . The informant told your affiant that between [DATES] he had been within the location at 7339 South Painter Avenue, Whittier, on at least two occasions. He stated further that on those occasions he observed Jason Scott, whom he described as a male Caucasian, approximately 6’3”, 215 lbs., light brown hair, within the location. He further observed Jason Scott sell a tannish powder which the informant recognized as heroin to persons coming to the premises. The heroin was packaged in small balloons for which Mr. Scott was paid $20.00 each. The purchasers would place the balloons into their mouths and leave. The informant also told your affiant that Mr. Scott was the only person to sell or possess heroin in that location other than the buyers who carried away the balloons they purchased and did not store them on the premises. No person assisted Mr. Scott, and he acted alone. The informant stated that Mr. Scott kept some heroin on the kitchen table for immediate sale and went into the bathroom when he needed additional supplies. . .
This affidavit makes it clear that anything the informant might say will point to Jason Scott’s guilt, and thus there is no reasonable possibility the informant might give evidence favorable to Jason Scott.
If it should happen that someone other than the named suspect is found within the location when the search and seizure is made and is charged with the crime, then the advantage of naming and describing the suspect is lost. But if the named suspect is found and arrested within the location, then a disclosure order should not be granted. (See People v. Thomas (1975) 45 Cal.App.3d 749, and other cases cited above.) Thus, the officers should try to serve the warrant when the suspect is alone and in actual possession of the contraband.
It is unwise to deliberately delay preparation or service of a search warrant in order to establish a lapse of time between the informant’s observations and the search. Excessive delay in preparation of the warrant can result in the informant’s observations being declared “stale.”
VI-20 Also, deliberate delay might be considered a violation of due process of law although no cases have so held. Unfortunately, delay is often unavoidable due to the necessity of handling other cases and the difficulty in obtaining enough manpower to properly serve a warrant. Please note that Penal Code section 1534 states that a search warrant executed within 10 days after signing is “deemed to have been timely executed.”
Please recall that merely because an informant may possess some knowledge regarding the charged crime does not mean he must be disclosed. The defendant is entitled to disclosure only if it is reasonably possible that the informant can give testimony favorable to the defendant and is not entitled to disclosure upon “mere speculation” regarding the informant testimony. (See People v. Alderrou (1987) 191 Cal.App.3d 1074; People v. Galante (1985) 143 Cal.App.3d 709; People v. McCoy (1970) 13 Cal.App.3d 6, 12; and People v. Pacheco (1972) 27 Cal.App.3d 70.) “An informant is not a material witness when he simply points the finger of suspicion towards a person who has violated the law.” (People v. Wilks (1978) 21 Cal.3d 460, 469.)
H. Compliance with Disclosure
A peace officer cannot be forced to reveal the name of his informant, but if he refuses to do so, those charges against the defendant in which the informant was deemed material will be dismissed. (See Honore and Goliday, cited above.) Moreover, an officer cannot attempt to avoid disclosure by deliberately failing to get the informant’s name or by failing to keep track of his whereabouts. The officer is under a duty to make reasonable and good faith efforts to maintain contact with his informant. (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 375; Eleazer v. Superior Court (1970) 1 Cal.3d 847; and People v. Goliday (1973) 8 Cal.3d 771.) In Eleazer, the court wrote:
Although the federal cases speak of a duty to make reasonable efforts to produce the informer, the imposition of such a duty would violate the principle that neither party must produce or call all possible witnesses. Due process requires only that the police and the district attorney undertake reasonable efforts in good faith to locate the informer so that either party or the court itself (see Evidence Code section 775) could, if it so desired, subpoena him as a witness. (Eleazer, 1 Cal.3d at page 853.)
A case dealing specifically with the issue of adequacy of compliance with a disclosure order is People v. Goodman (1971) 20 Cal.App.3d 284. In the Goodman case, the police knew the informant was material and made arrangements to maintain contact with him in the event he was needed as a witness. The informant did call the police on a regular basis so they could keep in touch with him. Four days before the trial the investigating officer and other officers began searching areas known to be frequented by the informant but were unable to find him or get in touch with him.
The trial court ruled that the prosecution had made reasonable and good faith efforts to maintain contact with the informant. The Court of Appeal affirmed and said:
In view of the facts that Staab [the informant] adamantly refused to reveal his address but did agree to keep in touch with [Officer] Urista, and that he did contact the officer on
VI-21 three occasions in accordance with that agreement, the court did not abuse its discretion in finding that the officers behaved reasonably in their efforts to keep in touch with Staab. (20 Cal.App.3d at page 287.)
See also People v. Cheatham (1971) 21 Cal.App.3d 675, which involves similar facts and a similar holding.
As a general rule, the same diligence should be exercised in attempting to maintain contact with an informant as if he or she was an essential prosecution witness. Due diligence in maintaining contact with an employed homeowner would probably not be considered due diligence in maintaining contact with a known and transient drug addict. The “stability” of the informant and expected difficulty in locating the informant are also factors.
The reasonableness of prosecution efforts to maintain contact with a material informant is a judicial determination. (See Twiggs v. Superior Court (1983) 34 Cal.3d 360, 375.)
I. Sealing the Affidavit to Protect Informant’s Identity -- “Hobbs Warrants”
In People v. Hobbs (1994) 7 Cal.4th 948, the California Supreme Court held that all or part of the information in a search warrant affidavit provided by an informant (whose only relevance is supplying probable cause) may be sealed to protect the informant’s identity. The sealed materials would later be subject to in camera review if the defendant makes a motion to traverse or quash the warrant. The Court stated its holding as follows:
We therefore conclude that, taken together, the informant’s privilege (Evidence Code § 1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informant’s identity is not required to establish the legality of a search pursuant to a warrant valid on its face (Evidence Code § 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant. Section 915, subd. (b), expressly authorizes lower courts to utilize an in camera review and discovery procedure to effectuate implementation of the privilege. (Emphasis in original, 7 Cal.4th at page 971.)
In a typical format involving the sealing of a portion of an affidavit pursuant to Hobbs, the affiant prepares the Statement of Probable Cause, including the affiant’s background and expertise, as well as any information relating to probable cause that does not need to be sealed. This typically includes DMV and utility information, surveillance that does not reveal the confidential informant, and any conclusions of the affiant.
In the unsealed portion of the Statement of Probable Cause, the affiant would then make a request for an order sealing a portion of the affidavit. The defense attorney is thus made aware that a portion of the affidavit has been sealed, so that the defense attorney can make motions to quash or traverse the search warrant pursuant to the procedures set forth in the Hobbs opinion.
VI-22 The Hobbs opinion does not set forth the actual procedure or mechanics for sealing a portion of the affidavit. In an effort to simplify and streamline the procedures for obtaining a “Hobbs” search warrant, the search warrant forms used in this manual have been revised to include an authorization for approval of a Hobbs sealing request.
1. “Hobbs Attachment”
A recommended procedure for a sealing request in the unsealed portion of the Statement of Probable Cause might be phrased as follows:
. . . Your affiant has prepared a “Hobbs Attachment” that is attached to this Statement of Probable Cause and that is fully incorporated into and made part of this Search Warrant. Your affiant requests that this Hobbs Attachment be ordered sealed by the magistrate reviewing this Search Warrant pursuant to People v. Hobbs (1994) 7 Cal.4th 948 and Evidence Code sections 1040-1042. If the information contained in the Hobbs Attachment is revealed, it would endanger the life of the informant and could destroy the informant’s future usefulness to law enforcement in detecting illegal activity. If the Hobbs request that appears on the face sheet of this Search Warrant is approved, the Hobbs Attachment will be sealed and maintained in a manner that complies with any rules or procedures promulgated by the ______County Superior Court pending further order of this court or any competent court.
This procedure for utilizing Hobbs has the following advantages:
a. The “Hobbs Attachment” can be easily removed from the Statement of Probable Cause for sealing without disturbing the rest of the Statement of Probable Cause. b. The Hobbs request appears on the search warrant form, so it is clear that a portion of the affidavit has been sealed. c. The magistrate needs to sign the search warrant only once, and the Hobbs request is approved if the magistrate checks the “Yes” box on the Search Warrant form authorizing the Hobbs sealing request.
A sample search warrant utilizing this procedure is located in Appendix D.
2. Court Order
Another procedure for a sealing request involves a separate Court Order located in the body of the Statement of Probable Cause or search warrant affidavit.
The request for a sealing order may be phrased as follows:
VI-23 REQUEST FOR AN ORDER SEALING THE AFFIDAVIT OR A PORTION OF THE AFFIDAVIT
AFFIANT REQUESTS that the following portion of the search warrant affidavit be ordered sealed by the magistrate in order to implement the privilege under Evidence Code sections 1040 to 1042 and to protect the identity of any confidential informant(s) and/or official information, pursuant to the Supreme Court decision in People v. Hobbs (1994) 7 Cal.4th 948.
If any of the information within the requested sealed portion of the affidavit is made public, it will reveal or tend to reveal the identity of any confidential informant(s), impair further related investigations and endanger the life of the confidential informant(s).
DATED: Signature of Affiant
The actual court order may be phrased as follows:
COURT ORDER
IT IS ORDERED THAT: the portion of the search warrant affidavit identified as the “Hobbs Attachment” be sealed and kept in the custody of the County Clerk and not be made a public record until further order of this court or any competent court.
OR
IT IS ORDERED THAT: the portion of the search warrant affidavit identified as the “Hobbs Attachment” be sealed and maintained in a manner that complies with any rules or procedures promulgated by the ______Superior Court until further order of this court or any competent court.
DATED: JUDGE
On separate pages, the affiant then sets forth that part of the affidavit which is to be sealed. The use of separate pages allows the affiant to physically remove the sealed portions from the rest of the affidavit and to seal it and maintain it as stated in the order.
The fact that part of an affidavit has been sealed does not prevent the officer/affiant from disclosing the sealed portion to a prosecuting attorney, another law enforcement officer, or a judicial officer. For this reason, before the separate pages of the affidavit are sealed, the officer/affiant should make a copy of the sealed portion for his/her case file to be available for inspection as the need arises.
VI-24 3. Custody of the Sealed Portion of the Affidavit
The original sealed portion of the affidavit may either be filed with the court clerk’s office or may be retained by the requesting law enforcement agency. In People v. Galland (2008) 45 Cal.4th 354, the California Supreme Court stated the following:
In our view, a sealed search warrant affidavit, like search warrant affidavits generally, should ordinarily be part of the court record that is maintained at the court…. However, a sealed search warrant affidavit may be retained by the law enforcement agency upon a showing (1) that disclosure of the information would impair further investigation of criminal conduct or endanger the safety of the confidential informant; (2) that security procedures at the court clerk’s office governing a sealed search warrant affidavit are inadequate to protect the affidavit against disclosure to unauthorized persons; (3) that security procedures at the law enforcement agency or other entity are sufficient to protect the affidavit against disclosure to unauthorized persons; (4) that the law enforcement agency or other entity has procedures to ensure that the affidavit is retained for 10 years after final disposition of the noncapital case, permanently in a capital case, or until further order of the court (see Gov. Code, §68152 subd. (j)(18)), so as to protect the defendant’s right to meaningful judicial review; and (5) that the magistrate has made a sufficient record of the documents that were reviewed, including the sealed materials, so as to permit identification of the original sealed affidavit in future proceedings or to permit reconstruction of the affidavit, if necessary. Galland, at page 368.
This language places a substantial burden on the requesting law enforcement agency to make the required showing that the sealed affidavit can be retained by the law enforcement agency. In particular, the law enforcement agency may have great difficulty in showing (2) that the security procedures in the clerk’s office are inadequate.
J. “Crimestopper” Informants
Many communities employ a “Crimestopper” hotline where citizens may call anonymously and give information regarding crime. In the case of People v. Callen (1987) 194 Cal.App.3d 558, the Court of Appeal held that the police are not obligated to learn the identity of such callers.
K. Narcotics Surveillance Point Disclosure
Evidence Code section 1040 provides a privilege for nonpublic “information acquired in confidence by a public employee in the course of his or her duty,” the disclosure of which would be “against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice….” Evidence Code section 1042 provides that when the trial court in a criminal case permits the prosecution to invoke the 1040 privilege, the court “shall make such order or finding of fact adverse to the [prosecution] as is required by law upon any issue in the proceeding to which the privileged information is material.” This provision in section 1042 is intended to preserve the
VI-25 constitutionality of the section 1040 privilege by ensuring that its application does not detract from the constitutional rights of criminal defendants to confrontation, cross-examination, and a fair trial.
Several California Court of Appeal cases have held that the location of a police surveillance point falls within the ambit of the privilege granted by Evidence Code section 1040. See Hines v. Superior Court (1988) 203 Cal.App.3d 1231; People v. Montgomery (1988) 205 Cal.App.3d 1011; People v. Walker (1991) 230 Cal.App.3d 230; In re Sergio M. (1993) 13 Cal.App.4th 809; People v. Garza (1995) 32 Cal.App.4th 148; and People v. Haider (1995) 34 Cal.App.4th 661. Each of these cases involved observations of narcotics activity by a police officer from a surveillance point.
These cases differ as to what circumstances an adverse finding under Evidence Code section 1042 is required. In some cases, the appellate court held that an adverse finding was not required and allowed testimony at the defendant’s trial of the surveilling officers’ observations from the surveillance location. See People v. Walker, supra, 230 Cal.App.3d 230; In re Sergio M., supra, 13 Cal.App.4th 809; People v. Garza, supra, 32 Cal.App.4th 148; and People v. Haider, supra, 34 Cal.App.4th 661. In the other cases, the appellate court found that the assertion of the privilege deprived the defendant of his fundamental right to cross-examination on a material issue and made the adverse finding of striking the officer’s testimony regarding his observations from the privileged location of the defendant’s narcotics sales activities. Hines, supra, 203 Cal.App.3d 1231 and People v. Montgomery, supra, 205 Cal.App.3d 1011.
In People v. Lewis (2009) 172 Cal.App.4th 1426, the Court of Appeal reviewed these cases on narcotics surveillance point disclosure and determined a standard of materiality emerged from these cases, as follows:
(T)he location from which the surveillance was performed is not material, for the purpose of section 1042’s adverse finding requirement, if the accuracy of the testifying officer’s testimony about the surveillance observations is unquestioned, or at least is sufficiently corroborated by independent evidence such that there is no realistic possibility that disclosing the surveillance location would create a reasonable doubt in the minds of a reasonable jury about the officer’s veracity. (172 Cal.App.4th 1426 at page 1438.)
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CHAPTER VII
MECHANICS OF PREPARATION
A. Introduction
The emphasis in this Manual has been on the legal aspects involved in the preparation of a search warrant. It is ordinarily the legal issues that will determine the ultimate validity of the warrant.
In some instances, however, the validity of the warrant may be jeopardized by mistakes resulting from carelessness or oversight during its preparation. The purpose of this Chapter is to suggest procedures to be employed during the preparation of the warrant in order to minimize the possibility of mistakes.
B. Preparing the Search Warrant and Affidavit
The deputy district attorney assisting in the preparation of the warrant should:
• Become thoroughly familiar with the case by reading all relevant reports and discussing the facts with the affiant.
• Obtain and examine copies of all police reports, arrest records, photographs and diagrams which may be attached as exhibits. Make certain that no pages are missing and all copies are legible. Illegible exhibits may result in the suppression of the warrant. (Kaylor v. Superior Court (1980) 108 Cal.App.3d 451.)
• Obtain from the affiant an accurate and verified description of the items sought and the premises, vehicle(s), and person(s) to be searched.
• Prepare the relevant forms, listing the name(s) of the affiant(s), the statutory grounds, the premises, vehicle(s), and person(s) to be searched, and the items sought.
• Prepare the Statement of Probable Cause. Include the affiant’s background and expertise, the factual information gathered, information received from informants, facts indicating the reliability of informants, corroboration, reasoning, conclusions and expert opinions of the affiant, and justification for nighttime service and/or Hobbs sealing if sought.
• Attach all exhibits. Make certain they are clearly labeled and legible.
• Proofread! In particular, look for missing or misnumbered pages, missing paragraphs or exhibits, incorrect or transposed numbers, illegible documents, etc.
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C. Presenting the Search Warrant and Affidavit to Magistrate
The following procedures are recommended:
• The magistrate swears the affiant(s). The suggested oath is: “Do you swear that everything in this affidavit is true to the best of your knowledge and belief?” If there is more than one affiant, all the affiants must be sworn. The magistrate then reads the search warrant documents. If the magistrate feels that probable cause for the search has been established, he or she will ask the affiant(s) to sign the search warrant face sheet.
• The judge will then date and sign the search warrant. Make certain this is done.7 The warrant is now ready to be served.
D. Legal Standard for Issuance of the Search Warrant
In Illinois v. Gates (1983) 462 U.S. 213, the United States Supreme Court stated that the standard of probable cause for the issuance of a search warrant is a “fair probability” that contraband or evidence of a crime will be found in a particular place. Gates, supra, at p. 238. This “fair probability” standard was re-affirmed by the United States Supreme Court in United States v. Grubbs (2006) 547 U.S. 90 and was followed by the California Supreme Court in People v. Hobbs (1994) 7 Cal.4th 948, 975.
Magistrates reviewing a search warrant for issuance may be reminded of the “fair probability” standard if they appear reluctant to issue the warrant.
E. Making Copies of the Search Warrant and Affidavit
Several copies of the search warrant documents should also be prepared (although only an original is required by statute). It is recommended that copies be prepared for: the officer-affiant, the district attorney case file, and the defense attorney(s). The copies will make it easier to review the warrant documents for later court proceedings rather than having to subpoena the originals.
Also, sufficient extra copies of just the Search Warrant face sheet (but not the Statement of Probable Cause) should be prepared so that a copy of the face sheet can be left at each location and with each person described on the warrant.
1. Making Copies AFTER Affidavit and Warrant Are Signed
It is recommended that copies of the search warrant documents be made after the documents have been submitted to the magistrate. The following advantages are gained when copies of
7This is the recommended procedure, but it is not inflexible. In People v. Chavez (1972) 27 Cal.App.3d 883, the magistrate’s clerk took the affiant’s oath and signed the magistrate’s name to the affidavit. The magistrate then examined the affidavit and personally signed and issued the search warrant. Held, no error.
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the original search warrant and affidavit are made after these documents have been approved and signed by the magistrate:
a. The copies will show the signature of the magistrate and the date the warrant was signed.
b. The copies will reflect any changes made in the search warrant documents by the magistrate. This will assist the deputy district attorney in the filing and prosecution of any case arising from the service of the warrant since it will eliminate any element of uncertainty as to the exact wording of the original search warrant documents without having to track down and inspect the originals which may be at another courthouse miles away.
c. The copies will show whether or not the magistrate approved nighttime service and/or a Hobbs sealing request.
d. The copies may be used during court proceedings under the Secondary Evidence Rule (Evidence Code section 1521). Also, they are exact copies of the original search warrant documents on file in the clerk’s office (Evidence Code section 1530). Thus it may not be necessary to subpoena the original documents to court.
e. During service of the warrant, the suspect can be given a copy showing the magistrate’s signature.
f. In cases in which more than one location or person are to be searched at the same time, it is desirable to have several signed copies of the warrant so that a judge’s signature can be shown to each person or at each location. Persons may resist service if they are shown only an unsigned warrant which they may not believe to be valid.
It should be noted that neither case law nor statute specifically requires display of the warrant. See Chapter X, Section F, part 2. Nevertheless, it is recommended that officers do display a signed copy of the warrant in order to make their authority clear.
If the court clerk should insist upon retaining the original affidavit after it is signed, then it will be necessary to order certified copies from the clerk when copies are needed.
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2. Making Copies BEFORE the Affidavit and Warrant Are Signed
Many prosecutors and police officers prefer to make copies of the search warrant documents before they are signed. If it is known in advance that the court clerk will retain the original documents, then it is necessary that the desired number of copies be prepared before the original is signed. Any changes made by the affiant or magistrate upon the original search warrant documents at the time of the signing should be made on all copies so that all copies will be the same as the original.
If there is insufficient time or if it is impractical to make copies of the signed search warrant documents prior to the execution of the warrant, copies should then be made at the time of the preparation of the Return of the Search Warrant.
F. Sealing the Affidavit
Pursuant to Penal Code section 1534; all documents relating to a search warrant become open to the public as judicial records following execution and return of the warrant. However, all or part of the search warrant documents may be sealed pursuant to a court order under certain limited circumstances. Such an order can be requested at any time, but it is most often sought at the time of the issuance of the warrant.
1. Sealing to Protect the Identity of an Informant
The case of People v. Hobbs (1994) 7 Cal.4th 948 provides for the sealing of all or part of a search warrant affidavit to protect the identity of an informant (whose only relevance is supplying probable cause). Procedures for obtaining a sealing order pursuant to the Hobbs case are set forth in Chapter VI, Section I.
In People v. Sanchez (1972) 24 Cal.App.3d 664, 678, a search warrant was issued on the basis of two affidavits, one signed by the officer/affiant, and the other signed by a confidential informant. The magistrate issuing the warrant ordered the informant’s affidavit sealed and held in a police evidence locker pending further order of the court. The Sanchez case held that the informant’s affidavit can be ordered sealed to protect the identity of the confidential informant/affiant and that the name of the informant need not be listed as an affiant on the face of the warrant. The Sanchez case recommends that if the affidavit of an informant/affiant is sealed, that fact should be disclosed on the face of the warrant. (24 Cal.App.3d at page 678, fn. 8.)
2. Sealing to Protect an Ongoing Investigation
Sometimes it may be desirable to seal all the search warrant documents to protect the integrity of an on-going investigation. Such a sealing order goes well beyond what is authorized by People v. Hobbs, above, which authorizes sealing only to protect the identity of an informant. Such a sealing order, to protect an ongoing investigation, may be appropriate if there are no court proceedings pending (e.g., no case has been filed, or if a
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case has been filed but arrest warrants remain outstanding). However, once arrests are made and/or the investigation has concluded, the search warrant documents should be unsealed so that a public return can be filed and discovery provided to the defense. A sample affidavit and sample court order for such a sealing appear at the end of this chapter.
G. Return of the Warrant
The warrant must be executed and returned within the 10 days following its issuance. The search warrant may be returned to the issuing magistrate or his court. (Penal Code section 1534.) If the tenth day is a holiday or weekend, the next court day is permitted. (People v. Stevenson (1976) 62 Cal.App.3d 915.) The day of issuance is day zero (see Government Code section 6800).
A late return will not necessarily invalidate the warrant. A warrant which was not returned within 10 days can be declared invalid only if the defendant can demonstrate prejudice as a result of the late return. (See People v. Head (1994) 30 Cal.App.4th 954; People v. Schroeder (1979) 96 Cal.App.3d 730; People v. Couch (1979) 97 Cal.App.3d 377; and People v. Kirk (1979) 99 Cal.App.3d 89.)
The “return package” consists of the original search warrant documents, an inventory of all the items seized and a “return” form in which the officer who executed the warrant (not necessarily the affiant) swears that the inventory is a true list of everything seized during the execution of the warrant, including items not listed on the warrant. (See Appendix H for a sample Return form.)
For additional discussion of search warrant returns, see Chapter X on Serving the Warrant and, in particular, Sections N and O.
H. Form -- Affidavit and Request for Sealing Order
See following pages.
I. Form -- Sealing Order
See following pages.
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1 IN THE SUPERIOR COURT OF CALIFORNIA
2 COUNTY OF LOS ANGELES
3
4 IN THE MATTER OF A SEARCH ) AFFIDAVIT OF SCOTT COLLINS WARRANT FOR THE PREMISES AT ) FOR ORDER SEALING 5 1723 MAIN STREET, et al., ) SEARCH WARRANT DOCUMENTS ) 6 ) 7
8 AFFIDAVIT OF SCOTT COLLINS
9 I am Scott Collins, a Police Officer for the City of Los Angeles, currently assigned to the
10 Administrative Narcotics Division. I am the affiant in the Search Warrant described above,
11 which was signed by the Honorable Janet Fox on [Date].
12 I request this affidavit and all other documents relating to this affidavit be sealed for the
13 following reasons: The warrant sought pursuant to this affidavit relates to an on-going
14 investigation of large scale sales of narcotics. It is expected that additional warrants will be
15 sought relating to this matter. If the information contained in this affidavit and in related
16 documents is made public, it would compromise this investigation and make it impossible to
17 continue. The informants and other sources of information referred to in this affidavit would no
18 longer be bale to gather information, particularly those acting as undercover agents.
19 Additionally, their lives and safety would be pout into great jeopardy. Therefore, I request all
20 documents in this case be sealed pending further order of the court or until the necessity for such
21 sealing no longer exists.
22 I declare under penalty of perjury that the related foregoing is true and correct to the best
23 of my knowledge.
24 Date: SCOTT COLLINS, Police Officer 25 Los Angeles Police department
1
2 IN THE SUPERIOR COURT OF CALIFORNIA
3 COUNTY OF LOS ANGELES
4
5 IN THE MATTER OF A SEARCH ) ORDER SEALING SEARCH WARRANT FOR THE PREMISES AT ) WARRANT DOCUMENTS 6 1723 MAIN STREET, et al., ) 7 ) ) 8
9 Based upon the foregoing affidavit and a reading of the Search Warrant, Affidavit in support
10 thereof, and Return referred to above, it is hereby ordered that the Search Warrant, the Affidavit in
11 Support thereof, and the Return thereof, be sealed and be kept in the custody of Officer Scott Collins
12 until further order of this court or any other competent court.
13
14 Date: JANET FOX, Judge 15
16
17
18
19
20
21
22
23
24
25
CHAPTER VIII
SEARCH WARRANT CHECKLIST -- SEARCH WARRANT FORMAT
A. Introduction
A search warrant may be quashed because of simple errors or omissions occurring during the preparation of the search warrant documents. These errors can be avoided if care and attention are given during the preparation of these documents. This chapter provides a checklist to help in the preparation of a mistake-free warrant.
B. Checklist
1. Make sure the affiant’s name appears on the search warrant face sheet in the appropriate blank. If there is more than one affiant, the name of each should appear unless the identity of an affiant is to be sealed. (See Chapter VII, Section E, on sealing the affidavit.)
2. Check the appropriate statutory grounds for issuance in the blanks provided on the combined warrant and affidavit form. (See Chapter I and Penal Code section 1524.)
3. Describe the locations, vehicles, and persons to be searched with sufficient particularity. (See Chapter II.)
4. Describe the items to be seized with sufficient particularity. A general description such as “all papers” or “stolen property” is insufficient. List only those items which there is probable cause to believe will be found. Do not list items which are merely hoped will be present. (See Chapter III.)
5. Make certain that all blank spaces in pre-printed forms are properly filled in. Make certain that all inapplicable language on pre-printed forms is crossed out. Read the forms carefully.
6. Prepare the “Statement of Probable Cause.” (See Chapter IV.)
a. Set forth the identity, experience and expertise of affiant. The affiant’s expert opinion may be necessary to explain certain observations made by the affiant, to explain certain street terms mentioned in the affidavit, to provide reasons for believing contraband is at a certain location, or to justify nighttime service. The affiant’s opinion may not have much weight unless the affiant’s expertise and experience is first established.
b. Set forth the personal observations of the affiant.
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c. Set forth information received from informants. Establish reliability and state information in a factual manner reflecting personal knowledge of the informant, if possible.
d. Include all corroboration.
e. Make certain it is clear that the information set forth is current. Avoid staleness. Update old information or explain why it is still accurate.
f. Make certain all attachments and exhibits are complete, legible, and clearly labeled.
g. Be certain that the affidavit “connects up” the suspect with the location to be searched, the suspect with the items sought, the crime with the items sought, etc. For example, if the affiant can show the suspect committed a robbery and wants to search the suspect’s residence, the affiant must show how he or she knows the suspect lives at a particular residence, i.e. “connects up” the suspect with the residence through old arrest reports, DMV records, surveillance, informants, etc. Similarly, if a car is to be searched, show how that car is connected to the suspect or crime under investigation. FAILURE TO “CONNECT UP” IS A COMMON ERROR.
7. Some affidavits state that an informant observed cocaine inside a location. Often, however, the affidavit does not establish how the informant knew that the item observed was, in fact, cocaine. Therefore, the affidavit should set forth facts establishing the informant’s familiarity or expertise in recognizing cocaine.
“Your affiant interviewed the informant and determined that the informant is a user of cocaine and is familiar with the appearance of cocaine and the manner in which cocaine is packaged.”
8. Set forth the reasoning and conclusions of the affiant as based upon the information set forth in the affidavit. The affiant should conclude the items sought are at or on the premises, vehicles and persons to be searched.
9. PROOFREAD! Look particularly for transposed or incorrect numbers. Make certain no words, lines, interlineations, and pages, have been left out. Make certain the warrant lists the places to be searched and the items to be seized. In Groh v. Ramirez (2004) 540 U.S. 551, the officer-affiant was subject to civil liability for failure to read the search warrant documents which would have uncovered an obvious error.
10. Make certain all parties sign in the correct spaces. Also, make certain that the date and time of signing is correct.
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Check all signatures and dates before leaving the magistrate’s court or residence. Omitted signatures and incorrect dates are common errors.
11. If a Hobbs sealing request is approved, remove the pages to be sealed from the search warrant documents. The pages must then be sealed and maintained by the person or entity authorized by the magistrate. Investigators should make a copy of the sealed documents for their files. (See Chapter VI, Section I.)
12. If errors are discovered after the warrant has been served, the warrant may not necessarily be invalid. (See Chapter XI and Court Proceedings, Section L.)
C. Search Warrant Format
Set forth below is the principle of law justifying the issuance of a search warrant for a suspect’s residence and a simple format for the step by step preparation of a search warrant and supporting affidavit. PRINCIPLE OF LAW
“A number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items.” (People v. Miller (1978) 85 Cal.App.3d 194, 204; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206.)
FORMAT
SEARCH WARRANT
Name(s) Of Affiant(s).
Check Off Statutory Grounds.
List Location(s), Vehicle(s), Person(s) To Be Searched.
Describe Property To Be Seized.
AFFIDAVIT -- STATEMENT OF PROBABLE CAUSE
Identity and Experience of Affiant(s).
Facts Showing Commission Of Crime(s).
Facts Connecting Suspect(s) to Crime(s).
Facts Connecting Suspect(s) To Location(s), Vehicle(s) and Person(s) To Be Searched.
Facts Showing How Descriptions Obtained.
Opinion -- Property at Location(s), Vehicle(s), Person(s) To Be Searched.
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CHAPTER IX
ORAL AFFIDAVITS TELEPHONICALLY AUTHORIZED SEARCH WARRANTS FACSIMILE & E-MAIL SEARCH WARRANTS
A. Introduction
In most instances search warrants and supporting affidavits are prepared in writing and are personally signed by the issuing magistrate and affiant in the manner indicated in the preceding chapters. However, the law also provides for the use of oral affidavits, telephonically authorized search warrants, facsimile search warrants and electronic mail search warrants.
1. Oral Affidavits
An oral affidavit is one in which the affiant orally states to the issuing magistrate the probable cause for the warrant. The affiant’s statement is recorded on a tape recorder or recorded and transcribed by a court reporter. No written statement of probable cause is presented to the magistrate. The oral affidavit procedure is set forth in detail in Section B of this Chapter.
2. Telephonically Authorized Search Warrants
A telephonically authorized search warrant is one in which the affiant calls the magistrate on the telephone, states the probable cause for a search warrant, and then obtains verbal authorization from the magistrate to sign his or her (the magistrate’s) name to the warrant. The entire telephone call must be tape recorded. Thus, the warrant can be issued simply as the result of a phone call to the magistrate. Telephonically authorized warrants are discussed in detail in Section C of this Chapter.
A blank form suitable for use in the case of both oral and telephonically authorized search warrants appears at the end of this chapter. This form is slightly different than that routinely used where the affidavit and statement of probable cause are written in that it contains no affidavit or statement of probable cause portion. This is because in the case of both oral and telephonically authorized search warrants, the affidavit and statement of probable cause are done orally rather than being written.
The use of oral affidavits and telephonically authorized search warrants -- prepared in accordance with statutory requirements and setting forth adequate probable cause for their issuance -- has been upheld in several cases. (People v. Ramos (1982) 30 Cal.3d 533; People v. Sanchez (1982) 131 Cal.App.3d 323.) No emergency or other justification need be shown for the use of an oral affidavit or telephonically authorized search warrant. (People v. Peck (1974) 38 Cal.App.3d 993 at page 1000.)
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3. Facsimile Search Warrants
Penal Code section 1526(b)(2) provides for the issuance of a search warrant through the use of a facsimile machine. Facsimile search warrants are discussed in Section D. below.
4. Electronic Mail Search Warrants
Penal Code section 1526(b)(2) also provides for the issuance of a search warrant through electronic mail. This is discussed in Section E. below.
B. Oral Affidavits
The statutory authority and procedures related to oral affidavits is set forth in Penal Code section 1526 subd. (b):
“(b) In lieu of the written affidavit required in subd. (a), the magistrate may take an oral statement under oath under one of the following conditions:
(1) The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purpose of this chapter. In these cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative in these cases, the sworn oral statement shall be recorded by a certified court reporter and the transcript of the statement shall be certified by the reporter, after which the magistrate receiving it shall certify the transcript which shall be filed with the clerk of the court.”
Section 1526 subd. (b) provides only that the affidavit may be oral. The search warrant still must be in writing as required by Penal Code section 1523. Failure to have a written search warrant may result in the warrant being declared invalid. (Bowyer v. Superior Court (1974) 37 Cal.App.3d 151, 164.)
Forms which may be used for telephonic search warrants and for oral affidavit search warrants appear at the end of this Chapter.
1. Oral Affidavit Procedures
a. Use the Oral Affidavit Search Warrant form. Fill out the form including the name(s) of the affiant(s), the statutory grounds for issuance, the premises to be searched and the items/person(s) to be seized.
b. Go to the court or residence of the judge with the filled-out Search Warrant form.
c. When all parties are together, use a tape recorder or a certified court reporter to record the proceedings. First, all parties will introduce
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themselves on the record and spell their names. If a tape recorder is used, each speaker must state his/her name each time he/she speaks in order to make it easier to transcribe the tape. All parties must speak clearly. d. The judge will swear the affiant. e. The affiant will then read out loud a line or two of the COMMAND TO SEARCH portion of the Search Warrant form for identification purposes. The judge will read the Search Warrant form (silently) and then state that he/she has read the Search Warrant form.
f. The affiant should state his/her identity, experience and expertise and then relate fully the probable cause for the issuance of the Search Warrant. This oral affidavit should contain the same information as would appear in a conventional written affidavit in support of a search warrant.
g. The judge may ask questions of the affiant at any time. All questions and answers must be on the record.
h. If there is more than one affiant, each must be identified and sworn before giving his/her statement.
i. Police reports and other documents may be described and submitted to the judge. He/she will state that he/she has read them. The affiant will state that they will be attached to the transcript of the proceedings and are part of the probable cause for the issuance of the Search Warrant.
j. The judge will be asked if he/she finds probable cause for issuance of the Search Warrant. If the answer is yes, the judge will date and sign the Search Warrant and describe this as he/she does so. If night service is requested and approved, the judge will state he/she finds justification for night service and so indicate on the Search Warrant. Same with “Hobbs” sealing.
k. The Search Warrant can be served.
l. If a tape recorder was used, a transcript must be obtained. If a court reporter was used, he/she will prepare a transcript of the proceedings. Any written documents presented to the judge must be attached to this transcript.
m. The tape and/or transcript must be certified as described in Penal Code section 1526 and will be presented to the judge along with the Search Warrant and Return form. After certification, these will be filed with the court clerk.
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C. Telephonically Authorized Search Warrants
Penal Code section 1528 subd. (b) permits a magistrate to orally authorize a peace officer to sign the magistrate’s name on a “duplicate original search warrant.” In effect, this section permits a search warrant to issue when the affiant’s oral affidavit is not taken in the presence of the magistrate and when the only contact with the magistrate is over the telephone. The magistrate can give verbal authorization over the telephone to the peace officer/affiant to sign the magistrate’s name on a “duplicate original warrant.” Section 1528 subd. (b) reads:
(b) The magistrate may orally authorize a peace officer to sign the magistrate’s name on a duplicate original warrant. A duplicate original warrant shall be deemed to be a search warrant for the purposes of this chapter, and it shall be returned to the magistrate as provided for in section 1537. The magistrate shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant and the duplicate original warrant with the clerk of the court as provided for in section 1541.
This section does not eliminate the requirement of a written search warrant. It merely creates a procedure for signing the magistrate’s name on a written warrant when the magistrate is not physically present to sign the search warrant.
1. Telephonic Search Warrant Procedures
a. Affiant/officer contacts deputy district attorney and discusses case. If deputy district attorney says case is appropriate for a telephonic search warrant, he or she will instruct officer to prepare an “original” search warrant and a “duplicate original.”
b. Officer prepares an original search warrant and one copy. Copy has words “duplicate original” written across top. If it is not possible to prepare a copy at the time the warrant is prepared, then the original should be labeled “duplicate original” and a copy, labeled “original,” can be prepared later. No affidavit need be prepared. It will be done telephonically. A sample form especially tailored for telephonic search warrants appears at the end of this Chapter. The words “duplicate/original” appearing at the top of the form should be circled on the duplicate original warrant and the words “duplicate” crossed-out on the original.
Note: The magistrate need not be in physical possession of the “original” search warrant during the telephonic procedure. The affiant will have both the original and duplicate original. (People v. Ramos (1982) 30 Cal.3d 533, 574, and Bowyer v. Superior Court (1974) 37 Cal.App.3d 151, 163-164; Penal Code section 1528 subd. (b).)
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c. Conference call is set up between officer, deputy district attorney, and judge. Telephonic recording device is set up. When all parties are on the line, the recorder is turned on and the person working the recorder announces, “Recorders are on.” It is not essential that the recording be done through the District Attorney Command Post, but the entire conversation must be recorded. A simple suction cup style induction coil and cassette tape recorder may be attached to the affiant’s phone just as long as the recording is intelligible and other sides of the conversation are recorded.
d. Deputy district attorney introduces self and asks others to do so. All parties must identify themselves each time they speak and should speak slowly and clearly.
e. Deputy district attorney asks judge to swear officer. Officer is sworn.
f. Deputy district attorney asks officer to read verbatim “duplicate original” warrant. Officer reads warrant, including words “duplicate original.”
g. Deputy district attorney asks officer to state probable cause for warrant.
h. Officer states probable cause fully and completely. Deputy district attorney and judge can and should ask questions of officer, if they wish.
i. If there is more than one affiant, all should be identified and sworn before giving their statement and the names of all should appear on the face of the warrant, although a name may be omitted if it desired to keep the identify of the person secret. The name of at least one affiant must appear on the warrant.
j. Deputy district attorney asks judge if he/she is satisfied probable cause for warrant is shown (and justification for night search, and/or Hobbs sealing, if requested).
k. Judge says yes. (If judge says no, deputy district attorney, officer and judge should discuss what additional probable cause is necessary and officer should attempt to obtain such additional probable cause.)
l. Deputy district attorney asks judge if he/she authorizes officer to sign judge’s name to duplicate original warrant (and endorse for nighttime service, and/or Hobbs sealing, if requested). Judge says yes.
m. Deputy district attorney asks judge to spell his/her full name and state his/her court assignment.
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n. Deputy district attorney tells officer to sign judge’s name and describe what he is doing (including nighttime endorsement and/or Hobbs sealing, if authorized). Officer should also place judge’s court assignment on warrant.
o. Office describes signing judge’s name and court assignment (and signing nighttime endorsement and/or Hobbs sealing, if applicable).
p. Deputy district attorney tells officer to place date and time on “duplicate original” warrant and describe doing so. Officer does so.
q. Deputy district attorney thanks all parties -- informs officer search warrant can be served.
r. WARRANT IS SERVED. The officer serving the warrant must note the exact date and time of service on the face of the duplicate original in the space provided. (See Penal Code section 1534 subd. (b).)
s. Tape is transcribed. Officer and deputy district attorney who assisted in obtaining the search warrant listen to the tape and verify and correct transcription.
t. Officer takes “duplicate original” search warrant, “original” search warrant, tape, transcript and certification forms to judge. Judge will sign certification forms and will sign “original” search warrant form placing the same dates and times of issuance and service as on the “duplicate original.”
u. Officer files warrant return with court clerk including return form (see Chapter X, section K), original search warrant, duplicate original, tape, transcript and certification forms.
2. Failure of Recording Equipment
The evidence seized pursuant to an oral affidavit or telephonically authorized search warrant may be used in court even if the recording equipment was not functioning properly. In the case of People v. Fortune (1988) 197 Cal.App.3d 941, an officer seized marijuana and methamphetamine pursuant to a telephonically authorized search warrant. However, the tape recorder was not functioning properly, and the recording was inaudible and could not be transcribed. The officer used his memory and his notes to prepare a “reconstructed affidavit” that was certified by the magistrate. The Court of Appeal held that the reconstructed affidavit provided an adequate record to determine the existence of probable cause; and, in any event, the evidence seized pursuant to the warrant was admissible since exclusion was not required under the United States Constitution.
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3. Helpful Hints
The oral affidavit procedure is relatively straightforward and can be mastered easily. It is basically a simple matter of the affiant(s) taking a tape recorder (or court reporter, if available) and a filled-in search warrant form to the magistrate’s residence or chambers and orally stating the probable cause for the search warrant. If the magistrate is satisfied probable cause exists, he or she then signs the warrant. Since the warrant portion alone usually consists of only one or two pages listing the places to be searched and items seized, it can usually be prepared quickly and easily and may even be handwritten if desired.
But, just as in the case of a written affidavit, it is important that the probable cause be stated fully and clearly. The affiant may wish to use an outline or refer to notes in order to avoid inadvertently omitting an important point. It is also important that the tape recording be audible and understandable and that each speaker is clearly identified so that the tape may be accurately transcribed.
It is recommended that the affiant not make any preliminary unrecorded and unsworn comments to the magistrate regarding what the case is about before making a formal statement of probable cause. Such comments can often cause confusion in the minds of the affiant and magistrate as to what facts were stated on the record or off the record. The best procedure is to turn on the recorder as soon as the affiant meets the magistrate. The magistrate should also be invited to ask questions of the affiant. This may prevent important facts from being omitted or stated unclearly.
Since telephonic and oral warrants are often prepared in an atmosphere of haste, care should be exercised not to lose or misplace documents. In People v. Sanchez (1982) 131 Cal.App.3d 323, the original search warrant was lost by the officers involved. Fortunately, the Court of Appeal held that the return of the duplicate original -- signed personally by the magistrate -- was sufficient.
It is important to remember that regardless of whether the affidavit is written or oral and regardless of whether the magistrate personally signs the warrant or authorizes the affiant to do so, THE WARRANT MUST ALWAYS BE IN WRITING.
D. Facsimile Search Warrants -- Penal Code Section 1526(b) (2)
A facsimile search warrant is one in which the Search Warrant, Statement of Probable Cause and accompanying documents are all prepared and signed by the affiant in the usual manner and are then sent by facsimile machine to the magistrate for review and signature. The affiant also calls the magistrate, is sworn over the phone (this need not be recorded) and verifies that the correct number of pages have been received and are all legible. The magistrate verifies that the affiant has signed the affidavit. The magistrate then reads all the documents and if the magistrate is satisfied the warrant is valid, he or she signs it (this will be deemed the “original”) and sends a facsimile of the signed warrant back to the affiant. This is marked “duplicate original” by the
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affiant and can then be served. The original search warrant, the duplicate original and all supporting documents are filed with the return of the warrant.
A “BY FACSIMILE” search warrant form appears at the end of this chapter following the documents relating to telephonically authorized search warrants. This form should be used for facsimile warrants. Step by step instructions appear on the back of this form and should be followed carefully.
Hints: Make sure the magistrate receives legible copies of all documents, marks the copy he or she signs “original” and that the signed copy received by the affiant is marked “duplicate original.” The conversation between the affiant and the magistrate need not be recorded.
E. Electronic Mail Search Warrants -- Penal Code Section 1526(b)(2)
A search warrant may be obtained through the use of electronic mail. The procedure for obtaining a search warrant by electronic mail is similar to the procedure for a facsimile search warrant. The Search Warrant, Statement of Probable Cause, and accompanying documents are sent to the magistrate by electronic mail. The affiant’s signature is in the form of a digital signature. Over the telephone the magistrate will swear the affiant and confirm the receipt of the documents and verify the affiant’s digital signature as genuine. If the magistrate issues the warrant, he or she sends a copy of the signed search warrant to the affiant by electronic mail. The affiant acknowledges receipt of the search warrant over the telephone and writes the words “duplicate original” on it. The warrant may then be served. The original warrant or any affidavits or attachments are then returned as provided in Penal Code Section 1534.
F. Form -- Oral Affidavit Search Warrant
G. Form -- Telephonic Search Warrant
H. Form -- Certification of Tape Recording
I. Form -- Certification of Transcript
J. Form -- Facsimile Search Warrant
For all the above forms see the following pages.
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(Oral Affidavit Search Warrant Form) SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES
SEARCH WARRANT
THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and under penalty of perjury having been sworn to this day before me by
[Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: ______it was stolen or embezzled ______it was used as the means of committing a felony, ______it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, ______it tends to show that a felony has been committed or that a particular person has committed a felony, ______it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring, ______there is a warrant to arrest the person;
YOU ARE THEREFORE COMMANDED TO SEARCH:
FOR THE FOLLOWING PROPERTY/PERSON:
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant and incorporated Affidavit was sworn to as true under oath made under penalty of perjury. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this ______day of ______, 20____, at ______AM/PM. .
______, HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES NO Judge of the Superior Court of the State of California, County of Los Angeles.
DA-1506-A1-76S346W3-Rev. 01/09
NOTE: FORM ON PRECEDING PAGE IS FOR ORAL AFFIDAVIT SEARCH WARRANTS ONLY *** -ORAL AFFIDAVIT SEARCH WARRANT INSTRUCTIONS-
1. Use the Oral Affidavit Search Warrant form. Fill out the form including the name(s) of the affiant(s), the statutory grounds for issuance, the premises to be searched and the items/person(s) to be seized. 2. Go to the court or residence of the judge (or other agreed upon meeting place) with the filled out Search Warrant form. 3. When all parties are together, use a tape recorder or certified court reporter to record the proceedings. First, all parties will introduce themselves on the record and spell their names. If a tape recorder is used, each speaker must state his/her name each time he/she speaks in order to make it clear who is speaking and easier to transcribe the tape. All parties must speak clearly. 4. The judge will swear the affiant. 5. The affiant will then read out loud a line or two of the COMMAND TO SEARCH portion of the Search Warrant form for identification purposes and then state that he/she is handing the Search Warrant form to the judge. The judge will read the Search Warrant form (silently) and then state that he/she has read the Search Warrant form. 6. The affiant should state his/her identity, experience and expertise and then relate fully the probable cause for the issuance of the Search Warrant. This oral affidavit should contain the same information that would appear in a conventional written affidavit in support of a Search Warrant. 7. The judge may ask questions of the affiant at any time. All questions and answers must be on the record. 8. If there is more than one affiant, each must be identified and sworn before giving his/her statement. 9. Police reports and other documents may be described, marked as Attachment #1, #2, etc., and submitted to the judge. The judge will read the documents and state that he/she has read them. The affiant will state that they will be attached to the transcript of the proceedings and are part of the probable cause for the issuance of the Search Warrant. 10. The judge will be asked if he/she finds probable cause for the issuance of the Search Warrant. If the answer is yes, the judge will date and sign the Search Warrant and describe this as he/she does so. If a night search is requested and approved, the judge will state that he/she finds justification for the night search and so indicate on the Search Warrant. Same with “Hobbs” sealing. 11. The Search Warrant can be served. 12. If a tape recorder was used, a transcript must be obtained. If a court reporter was used, he/she will prepare a transcript of the proceedings. Any written documents presented to the judge must be attached to this transcript. 13. The tape and/or transcript must be certified as described in Penal Code section 1526 and will be presented to the judge along with the Search Warrant and Return forms. After certification, these will be filed with the court clerk.
(Telephonic Search Warrant Form) SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES
DUPLICATE ORIGINAL SEARCH WARRANT
THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and under penalty of perjury having been sworn to this day orally over the telephone to me by ______[Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: ______it was stolen or embezzled, ______it was used as the means of committing a felony, ______it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, ______it tends to show that a felony has been committed or that a particular person has committed a felony, ______it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring, ______there is a warrant to arrest the person;
YOU ARE THEREFORE COMMANDED TO SEARCH:
FOR THE FOLLOWING PROPERTY/PERSON:
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. The Affidavit in support of this Search Warrant is incorporated herein and was sworn to as true under oath administered orally over the telephone. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this ______day of ______, 20_____, at ______AM/PM. .
______, HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES NO Judge of the Superior Court of the State of California, County of Los Angeles.
DATE AND TIME OF SERVICE OF WARRANT: ______
DA-1506-A1-76S346W3-Rev. 01/09
NOTE: FORM ON PRECEDING PAGE IS FOR TELEPHONIC SEARCH WARRANTS ONLY *** -TELEPHONIC SEARCH WARRANT INSTRUCTIONS-
1. Affiant/officer contacts deputy district attorney through D.A. Command Center at (213) 974-3607 and discusses case. If DDA says case is appropriate for a telephonic search warrant, DDA will instruct affiant/officer to prepare an “original” Search Warrant and a “duplicate original.” 2. Affiant/officer makes appropriate entries in telephonic search warrant form. By means of photocopy or carbon paper, make at least one copy. Circle words “duplicate/original” on one copy and cross out word “duplicate” on original search warrant. 3. D.A. Command Center sets up conference call between affiant/officer, DDA and judge. When all parties are on the line, Command Center turns on tape recorder and announces, “Recorders are on.” 4. DDA introduces self and asks other to do so. All parties must identify themselves each time they speak and should speak slowly and clearly. 5. DDA asks judge to swear affiant/officer. Affiant is sworn. 6. DDA asks affiant/officer to read verbatim “duplicate original” warrant including words “duplicate original.” Officer reads warrant. 7. DDA asks affiant/officer to relate his assignment and background and probable cause for the warrant. 8. Affiant states probable cause fully and completely. DDA and judge can and should ask questions of affiant if necessary to establish probable cause. 9. DDA asks judge if he/she is satisfied probable cause for warrant is shown (and justification for night search, and Hobbs sealing, if requested). 10. Judge says yes. (If judge says no, DDA, officer and judge should discuss what additional probable cause is necessary and officer should attempt to obtain such additional probable cause.) 11. DDA asks judge if he/she authorizes officer to sign judge's name to duplicate original warrant (and endorse for nighttime service, and Hobbs sealing, if requested). Judge says yes. 12. DDA asks judge to spell his/her full name and state his/her court assignment. 13. DDA tells officer to sign judge's name on duplicate original warrant and to describe what he is doing (including nighttime endorsement, and/or Hobbs sealing, if authorized). 14. Officer describes signing judge's name (and nighttime endorsement and approving Hobbs sealing.) 15. DDA tells officer to place date and time of signing and judge's court assignment on "duplicate original" warrant and describe doing so. 16. DDA thanks all parties - informs officer search warrant can be served. 17. WARRANT IS SERVED. Officer shall note exact time and date of service on face of duplicate original. 18. After service of warrant, officer contacts DDA for instructions re certification of transcript, return, etc. D.A.'s Office will transcribe tape. PLEASE NOTE: Certification of tape and transcript and return of warrant is required even if no items are seized.
*(SAMPLE CERTIFICATION OF TAPE(S))
CERTIFICATION OF TAPE RECORDING
I certify that the enclosed tape is (tapes are) of a conversation in which I participated on [Date].
DATE: JOSEPH ESPOSITO, JUDGE LOS ANGELES SUPERIOR COURT
DATE OF RECORDING:
TAPE NUMBER(S): (E.g., 02-16, 02-17)
PARTICIPANTS: LEGEND SYMBOL:
Judge Joseph Esposito J DDA Richard Chrystie C Officer Gail Coutts GC Investigator Gary Schram S Unknown Speaker ? Unintelligible ***
DATE OF TRANSCRIPTION:
*This sheet shall appear as the first page of the transcript.
*(SAMPLE CERTIFICATION OF TRANSCRIPT(S))
CERTIFICATION OF TRANSCRIPT
I certify that this is an accurate transcription of a tape-recorded conversation in which I participated on [Date].
DATE: JOSEPH ESPOSITO, JUDGE LOS ANGELES SUPERIOR COURT
DATE OF RECORDING:
TAPE NUMBER(S): (E.g., 02-16, 02-17)
PARTICIPANTS: LEGEND SYMBOL
Judge Joseph Esposito J DDA Richard Chrystie C Officer Gail Coutts GC Investigator Gary Schram S Unknown Speaker ? Unintelligible ***
DATE OF TRANSCRIPTION:
*This sheet shall appear as the first page of the transcript.
(Facsimile Search Warrant and Affidavit Form) SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) ______swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
______, HOBBS SEALING REQUESTED: YES NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and under penalty of perjury having been sworn to this day orally over the telephone to me by: ______[Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by "x"(s) in that: ______it was stolen or embezzled, ______it was used as the means of committing a felony, ______it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, ______it tends to show that a felony has been committed or that a particular person has committed a felony, ______it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring, ______there is a warrant to arrest the person;
YOU ARE THEREFORE COMMANDED TO SEARCH:
FOR THE FOLLOWING PROPERTY/PERSON:
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant and incorporated Affidavit was sworn to as true under oath administered orally over the telephone. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this ______day of ______, 20 _____, at ______AM/PM.
______, HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES NO Judge of the Superior Court of the State of California, County of Los Angeles.
DATE AND TIME OF SERVICE OF SEARCH WARRANT: ______
DA-1506-A1-76S346W3-Rev. 01/09
NOTE: FORM ON PRECEDING PAGE IS FOR FACSIMILE SEARCH WARRANT ONLY *** -FACSIMILE SEARCH WARRANT INSTRUCTIONS-
WHEN USED: Penal Code Section 1526, subd.(b)(2)(A)-(D), permits an officer seeking a search warrant to contact a magistrate by telephone and to transmit by facsimile machine the Search Warrant, the Affidavit in support thereof, and any attachments to the magistrate. The magistrate confirms the receipt of the documents, swears the affiant, reads the documents and if satisfied that probable cause has been shown, signs the warrant and faxes it back to the affiant/officer. The affiant/officer writes “duplicate original” on the signed facsimile sent back to him/her and may then serve the warrant. Naturally, the affiant/officer and magistrate must each have a facsimile machine.
INSTRUCTIONS:
1. Affiant/officer prepares written Search Warrant and Affidavit form, Statement of Probable Cause, and supporting attachments in the usual manner. The Facsimile Search Warrant and Affidavit form on the preceding page should be used.
2. Affiant/officer telephones a magistrate who has a facsimile machine. Note: The Los Angeles County District Attorney’s Command Center, (213) 974-3607, maintains a list of magistrates with facsimile machines.
3. The Magistrate swears the affiant/officer and instructs the affiant/officer to sign the affidavit in support of the search warrant. The affiant/officer does so. This conversation need not be recorded. Both parties must stay in telephone contact throughout the entire procedure.
4. The affiant/officer then faxes the completed Facsimile Search Warrant and Affidavit form, the Statement of Probable Cause and all supporting attachments to the magistrate.
5. The magistrate confirms with the affiant/officer the receipt of all pages faxed, that the documents are legible and that the affiant/officer’s signature is genuine.
6. The magistrate reads all the documents and if satisfied that probable cause is shown signs the Search Warrant form and notes the date and time of signing in the appropriate spaces.
7. The magistrate faxes this signed Search Warrant form to the affiant/officer. The magistrate telephonically authorizes the affiant/officer to write “Duplicate Original” on the copy of the Search Warrant form received by the affiant/officer. The affiant/officer does so. The magistrate then writes “Original” on the Search Warrant form retained by him/her.
8. The “Duplicate Original” Search Warrant can now be served.
WARRANT RETURN: The affiant/officer obtains the “Original” Search Warrant from the magistrate. The magistrate notes the date and time of service on the “Original”. The “Original” and “Duplicate Original” and all supporting documents are filed with the return of the search warrant.
CHAPTER X SERVICE OF THE SEARCH WARRANT
A. Time Limit for Execution of Search Warrant
Penal Code section 1534 subd. (a) states, in part, that:
A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. . . .
Section 1534 subd. (a) raises a presumption of timely service when the warrant is executed within 10 days after issuance. The defendant may challenge the timeliness of service by showing a change of probable cause between the issuance of the search warrant and its execution. However, the burden is on the defendant to show such a change. (People v. Cleland (1990) 225 Cal.App.3d 388; People v. Hernandez (1974) 43 Cal.App.3d 581.)
In calculating the 10 days, the day the warrant is signed is “day zero” and the entire next day is day one. Saturdays, Sundays and holidays are included in the counting of days. If a search warrant is signed on February 1 at 12:01 AM, it can be served anytime up to 11:59 PM on February 11. (People v. Clayton (1993) 18 Cal.App.4th 440, 444-445.)
If the warrant is not served during the 10 day period, of if there is a change in the probable cause, either of the following procedures can be utilized to reissue or revalidate the warrant:
• A new search warrant and new affidavit can be submitted to the magistrate. The new affidavit should explain the reason for the non-service of the original warrant, mention any change in probable cause, and update any stale information. The new affidavit should also restate the information contained in the original affidavit, either in the body of the new affidavit or by attaching and incorporating the original affidavit, or
• The original warrant and original affidavit can be resubmitted to the magistrate along with a supplemental affidavit explaining the reason for the delay, the change in the probable cause, and updating any stale information. The affiant should swear to and re-sign the original affidavit as well as swearing to and signing the supplemental affidavit. The supplemental affidavit should incorporate by reference the entire original affidavit. The magistrate can then reissue the warrant by writing the words “Reissued and revalidated” on the face of the original search warrant and re-signing and re-dating it. (People v. Brocard (1985) 170 Cal.App.3d 239, 243; People v. Sanchez (1972) 24 Cal.App.3d 664, 682.)
What if the search warrant is timely served within the 10-day period, but the search is not completed until after the 10 days have passed? In People v. Superior Court (Nasmeh) 151 Cal.App.4th 85, the Court of Appeal held that “As a general proposition, ‘(t)he Fourth Amendment does not specify that search warrants contain expiration dates.’ (Cite)
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‘(C)ompleting a search shortly after the expiration of a search warrant’ -- a time period governed in this state by section 1534 -- ‘does not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized so long as probable cause continues to exist and the government does not act in bad faith.’ (Cite.)” (151 Cal.App.4th at page 99.) (See also People v. Schroeder (1979) 96 Cal.App.3d 730.)
B. Occupying Premises before Search
The United States Supreme Court has addressed the standards for temporary seizure of a home while police obtain a search warrant. In the case of Illinois v. McArthur (2001) 531 U.S. 326, the court held that the police acted lawfully when they prevented the defendant from entering his home without police accompaniment while they were waiting for a search warrant, because there was “a plausible claim of specially pressing or urgent law enforcement need, i.e., ‘exigent circumstances.’ (Citations).” (531 U.S. at page 331.)
In McArthur, the police accompanied the defendant’s wife to her trailer/home while she removed her belongings. When the wife exited the home, she told the police that the defendant, who was inside the home, had marijuana in the location. When the defendant refused to give the police permission to search the residence, the police prevented the defendant from re-entering the location without accompaniment by one of the officers. Meanwhile, a second officer left to obtain a search warrant. While the second officer was gone, the first officer accompanied the defendant into the trailer several times.
The court concluded that the warrantless seizure of the home was reasonable, based on an analysis of four factors that “balance[d] the privacy-related and law enforcement-related concerns.” (531 U.S. at page 331.)
First, based on their observations of the defendant and his wife, the police had probable cause to believe that the defendant’s home “contained evidence of a crime and contraband, namely, unlawful drugs.” Second, the police had “good reason to fear that, unless restrained, [the defendant] would destroy the drugs before they could return with a warrant.” Third, the police did not search the trailer or arrest the defendant; instead they “imposed a significantly less restrictive restraint.” Fourth, the seizure lasted only two hours, “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” (531 U.S. at pp. 331-332.)
California cases which have upheld the entry and/or occupation of premises prior to the issuance of a search warrant include In re Elizabeth G. (2001) 88 Cal.App.4th 496 -- residence of drive- by shooting suspect is secured while officers obtain a search warrant; People v. Superior Court (Irwin) (1973) 33 Cal.App.3d 475 -- suspects validly arrested within the location; People v. Daughhetee (1985) 165 Cal.App.3d 574 -- armed robbery suspect arrested in a residence pursuant to exigent circumstances; Ferdin v. Superior Court (1974) 36 Cal.App.3d 774 -- confederates of an arrestee may learn of arrest and dispose of the item sought; People v. Freeny (1974) 37 Cal.App.3d 20 -- suspect’s wife may learn of his arrest and destroy evidence. See also People v. Camilleri (1990) 220 Cal.App.3d 1199, 1210, and People v. Sanchez (1981) 116 Cal.App.3d 720, 728, which involve similar facts and similar holdings. And see People v.
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Seaton (2001) 26 Cal.4th 598, which upheld the exigent circumstances entry and securing of the residence of a suspect reasonably believed to have committed a murder 20 minutes earlier.
In People v. Gentry (1992) 7 Cal.App.4th 1255, the Court of Appeal held that a general statement from an informant that marijuana was being sold at a “very fast rate” from the premises was an insufficient showing of exigency to justify an entry into the premises prior to the issuance of the search warrant (Gentry at page 1262).
As a general rule, officers should not enter premises while a search warrant is being prepared unless exigent circumstances can be shown, such as danger to the occupants or imminent danger of destruction or disposal of the items sought. Also, officers should not try for a consent search if probable cause exists for a search warrant since officers can take no action to forestall the destruction of evidence in the event consent is refused -- unless entry can be made on another basis. It is recommended that if probable cause for a warrant exists, a warrant should be obtained.
1. Prior Illegal Entry -- Effect Thereof
Note that even if the place to be searched was illegally entered and occupied prior to the issuance of a search warrant, that does not mean that the fruits of the search subsequently conducted pursuant to the warrant must be suppressed. The United States Supreme Court cases of Segura v. United States (1984) 468 U.S. 796, and Murray v. United States (1988) 487 U.S. 533, upheld the seizure of evidence from a residence under a search warrant even though the police made an earlier unlawful entry into the residence. The court stated that if the search warrant was based upon information obtained from sources independent of the illegal entry, suppression of the warrant was not constitutionally compelled. Subsequent California cases following Segura and Murray are People v. Lamas (1991) 229 Cal.App.3d 560, 571; People v. Freeman (1990) 219 Cal.App.3d 894, 904-906; People v. Koch (1989) 209 Cal.App.3d 770, 774; People v. Gesner (1988) 202 Cal.App.3d 581, 588; and People v. Angulo (1988) 199 Cal.App.3d 370, 375.
However, if the prior illegal entry forms the basis for the subsequent issuance of the search warrant, then the evidence will be suppressed. (People v. Machupa (1994) 7 Cal.4th 614.)
C. Approaching the Premises; No News Media Entry
The affiant should have available sufficient personnel to properly serve the warrant. If it is reasonably likely that a fingerprint expert will be needed, or a criminalist, or an animal handler, etc., then these people should be arranged for in advance. A camera and/or camcorder should be taken since photos and/or videotapes are often useful in court.
The address and description of the premises should be verified. If incorrect, the warrant should not be served until corrected and re-signed by all parties.
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Certain tactical considerations should be weighed. Are arrests contemplated? Will the presence or absence of certain persons in the premises affect the case?
The search team should watch all windows and exits in order to prevent the escape of suspects and to recover any items thrown from the premises. Necessary steps should also be taken to ensure the security of the search teams.
It is not necessary that officers be in uniform (People v. Schad (1971) 21 Cal.App.3d 201), but it is recommended that a uniformed officer accompany the search team to the premises if this can be done without jeopardizing the investigation or endangering lives. Officers should be prepared to show identification at the door.
Members of the news media or any other third parties must not be allowed to enter the residence being searched unless their presence is necessary in the execution of the warrant. “[I]t is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” (Wilson v. Layne (1999) 526 U.S. 603, 618; and Hanlon v. Berger (1999) 526 U.S. 808.) Any photographs or videotaping of the search should be done by police department employees only and for official purposes only.
D. Knock and Notice Requirements -- Penal Code Section 1531
1. Generally
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.” (Penal Code section 1531.) The announcement requirements of section 1531 are identical in principle to those of Penal Code section 844. (Greven v. Superior Court (1969) 71 Cal.2d 287, 292, fn. 6; People v. Valdivia (1980) 114 Cal.App.3d 24, 27, fn. 4.)
2. Evidence is not Excluded Because of Knock-Notice Violation
For many years, courts assumed that the exclusionary rule applied to evidence obtained when law enforcement officers failed to comply with knock-notice rules before entering a location to serve a search warrant. See, for example, Duke v. Superior Court (1969) 1 Cal.3d 314, in which the California Supreme Court stated that a violation of Penal Code section 844 or its companion section 1531 called for exclusion of the evidence; and People v. Neer (1986) 177 Cal.App.3d 991 in which evidence seized pursuant to a search warrant was ordered suppressed because the officers’ entry violated Penal Code section 1531.
When the United States Supreme Court decided that unexcused knock-notice was a requirement of Fourth Amendment reasonableness, Wilson v. Arkansas (1995) 514 U.S. 927, 931-32, the Court left open the question of the remedy for a violation. The Supreme Court resolved this issue in Hudson v. Michigan (2006) 547 U.S. 586 as follows:
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In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with and the extent deterrences against them are substantial. . . Resort to the massive remedy of suppressing evidence of guilt is unjustified. (Hudson v. Michigan, supra, at page 595.)
In Hudson v. Michigan, police obtained a search warrant authorizing a search for drugs and firearms at the defendant’s home. When the police executed the warrant, they violated knock-notice rules by failing to wait a sufficient time after knocking and before entering the defendant’s home and finding drugs and other evidence. The defendant argued that the knock-notice violation required suppression of the evidence. The Supreme Court rejected the defendant’s argument in a five-to-four decision.
The majority opinion identified three interests protected by the knock-and-announcement requirement: Protection of human life and limb, protection of property, and protection of privacy and dignity that can be destroyed by a sudden entrance. The knock-and- announce rule has never protected one’s interest in preventing the government for seeing or taking evidence described in a search warrant. The majority also stated that the widespread use of civil rights lawsuits and increased professionalism of law enforcement provide adequate assurances that systematic abuses will not occur, without resort to the deterrent effect of the exclusionary rule.
This decision abrogates state and federal decisions which permitted defendants to move to suppress evidence on the basis of unexcused noncompliance with knock-notice statutes.
Police officers should continue to comply with knock-notice rules when not excused by exigencies, possible destruction of evidence, safety concerns, or the risk of escape. However, alleged non-compliance with knock-notice requirements should no longer be an issue in criminal proceedings.
3. Compliance with Penal Code Section 1531
In the usual case, officers should simply go to the front door of the premises described on the warrant and knock on the door. If an occupant opens the door, or states “Who is it?” the officer should state, “Police officers. We have a search warrant. Let us in.”
In United States v. Banks (2003) 540 U.S. 31, law enforcement officers went to defendant’s apartment to execute a search warrant to search for cocaine. They called out “police search warrant” and rapped on the front door hard enough to be heard by officers at the back door, waited for 15 to 20 seconds with no response, and then broke open the door. Defendant was in the shower and testified that he heard nothing until the crash of the door. A unanimous United States Supreme Court held that the officers’ 15 to 20 second wait satisfied the Fourth Amendment.
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If it appears that the occupants are not going to answer the door or are arming themselves or are trying to destroy evidence, then entry can be made as soon as this becomes clear. See People v. Gallo (1981) 127 Cal.App.3d 828 -- officer gave full knock and notice and forced entry only after persons he could see inside made no response -- held valid entry. (See also subsection 6, below, on “Substantial Compliance.”)
If officers knock and hear a voice from within say,” Come in,” it is permissible to immediately enter -- providing the door is open or unlocked. This was expressly held to be a valid entry in the case of Mann v. Superior Court (1970) 3 Cal.3d 1. The court stated, “For all [defendants] knew or apparently cared, they might have been extending their invitation to an unwelcome acquaintance, a curious parent, an irate neighbor, or a thief. Consent was quite freely given, and [defendant] cannot now complain that those present did not know their callers were police.” (3 Cal.3d at page 8.) (See also People v. Patterson (1979) 94 Cal.App.3d 456, 461.) Consent entry was held to justify noncompliance with knock and notice in People v. Romo (1988) 198 Cal.App.3d 581.
If officers knock and hear no response at all, they must announce in a clear and audible manner, “Police officers. We have a search warrant. Let us in.” Again, officers must wait a reasonable time to allow any occupants within to come to the door before forcing entry. A 30-60 second wait is recommended in most situations, although a wait of 20 seconds may be appropriate for a search warrant involving narcotics sales pursuant to United States v. Banks, supra.
4. Justification for Noncompliance with Penal Code Section 1531
a. Knock-Notice Cannot be Excused in Advance
In California, noncompliance with section 1531 cannot be judicially authorized in advance of the service of the search warrant. A peace officer must wait until the execution of the warrant and determine whether the facts as they exist at that time justify noncompliance with section 1531. (Parsley v. Superior Court (1973) 9 Cal.3d 934; and Brown v. Superior Court (1973) 34 Cal.App.3d 539.) The officer-affiant should nevertheless consider putting in the affidavit grounds of which the affiant is aware for noncompliance with section 1531. Otherwise, the defendant may allege that the affiant’s failure to include this information in the affidavit is evidence that the affiant is manufacturing grounds for noncompliance with section 1531.
A number of other states do give judges authority to issue “no-knock” search warrants if the affiant demonstrates it is appropriate. The United States Supreme Court has stated that this practice seems entirely reasonable. (See Richards v. Wisconsin (1997) 520 U.S. 385, 396, fn 7.)
b. Standard for “No-Knock” Entry
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In Richards v. Wisconsin (1997) 520 U.S. 385, the United States Supreme Court stated the standard for a no-knock entry, as follows: “In order to justify a “no- knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” (Richards v. Wisconsin, supra, 520 U.S. at page 394.) In Richards, knock-notice was not required because the suspect slammed the door upon seeing the officers.
c. Safety of Search Team or Others
Officers need not comply with Penal Code section 1531 if they have a reasonable belief that the occupants are armed and dangerous and they will resist. For example, in People v. Amos (1977) 70 Cal.App.3d 562, officers were told the defendant had just committed a robbery, had a gun and was “crazy”. The court held that the police need not knock and give notice since they reasonably believed the defendant would shoot them if they did so. A no-knock entry was also approved in United States v. Ramirez (1998) 523 U.S. 65, 73, in which the police demonstrated that a person within the premises had a violent past and possible access to a large supply of weapons and vowed that he “would not do federal time.” (People v. De La Plane (1979) 88 Cal.App.3d 223, 235-236, and People v. Braun (1973) 29 Cal.App.3d 949.) Note, however, that the mere fact a suspect has a gun will not excuse knock and notice unless there are specific grounds to believe the suspect will attempt to use it to resist entry. (People v. Vollheim, Jr. (1978) 87 Cal.App.3d 538, 541.)
d. Items Sought Will Be Destroyed or Disposed
Compliance with Penal Code section 1531 will be excused if the items sought are capable of swift destruction and the officers have a reasonable belief the occupants, upon hearing knock and notice, will destroy or dispose of the items. This belief requires specific facts, not mere speculation. It is not enough to assert that all drug dealers will try to dispose of their drugs. (See Richards v. Wisconsin (1997) 520 U.S. 385, 393-395.) Officers must show that they specifically knew of the occupant’s plans to destroy drugs at the premises in question and what those plans were. Such knowledge was established in People v. Gonzalez (1971) 14 Cal.App.3d 881, and People v. Colvin (1971) 19 Cal.App.3d 14.
5. Substantial Compliance
There are several cases in which less than full compliance with the knock and notice statute was held valid. Generally, these are cases in which events at the door made it clear that the officer’s presence and purpose were evident to the occupants and that full knock and notice (including waiting for the occupants to open the door) would be futile.
a. Officer’s Purpose Clear
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“Where a criminal offense has just taken place within a room, the occupants may reasonably be expected to know the purpose of a police visit and an express statement may not be necessary.” (People v. Hall (1971) 3 Cal.3d 992, 997; People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609; People v. Lawrence (1972) 25 Cal.App.3d 213; and People v. Lee (1971) 20 Cal.App.3d 982.) In most of these cases, the occupants had just committed or were still committing an offense. b. Running Footsteps -- Destruction of Evidence
Several cases hold that if officers knock and give notice -- or even just knock -- and then hear running footsteps away from the door, they may then force entry. (People v. McCarthy (1978) 79 Cal.App.3d 547, 550-551; People v. Watson (1979) 89 Cal.App.3d 376; and Brown v. Superior Court (1973) 34 Cal.App.3d 539, 544.) In such cases officers have a reasonable basis for a belief that the suspect is going to destroy or dispose of the items sought. See also People v. Lopez (1968) 269 Cal.App.2d 461 -- woman looked out blinds and yelled, “Narcos,” and People v. Mayer (1987) 188 Cal.App.3d 1101 -- two persons running in house indicated that occupants were “suddenly informed” of officer’s purpose.
c. Occupants Arming Themselves
Naturally, if it appears that the occupants are arming themselves, full compliance with Penal Code section 1531 will be excused. (Ker v. California (1963) 374 U.S. 23, 40.)
d. “Walled” Residence
In the case of People v. Bencomo (1985) 171 Cal.App.3d 1005, officers seeking to serve a search warrant encountered a five foot concrete wall and padlocked wrought iron gate in front of the home to be searched. The wall and gate were 20-30 feet from the front door. It had no bells, buzzers or other means of contacting the occupants.
Officers climbed the gate and approached the door. As they did so, the defendant opened the door and emerged from the house. The officers identified themselves and told the defendant they had a search warrant. The officers then followed the defendant back into the house and announced loudly, “police officer,” as they did so. The court held that knock notice was not required at the outer wall and that substantial compliance with Penal Code section 1531 took place at the front door area. The case of People v. Mayer (1987) 188 Cal.App.3d 1101, involved similar facts and similar holdings.
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6. Ruse to Get Door Open
If officers possess a search warrant for a location, it is permissible for the officers to employ a ruse to induce the occupants of that location to open a door so that the officers may then enter and serve the search warrant. “Officers who reasonably employ a ruse to obtain consent to enter a dwelling do not violate Penal Code section 844 or 1531, even if they fail to announce their identity and purpose before entering.” (People v. Rudin (1978) 77 Cal.App.3d 139, 142; People v. McCarter (1981) 117 Cal.App.3d 894, 906.)
In the case of People v. Thompson (1979) 89 Cal.App.3d 425, officers obtained a search warrant for the defendant’s residence for narcotics. They were also aware that the defendant’s front porch was enclosed with iron bars and locked iron gate. Officers believed it would be impossible to force entry in time to avoid destruction of evidence. Thus, they set off firecrackers in the defendant’s yard to simulate gunfire. They then knocked and asked the defendant to come outside and inspect his car for bullet holes. As the defendant opened the iron gate, one officer grabbed it, held it open, and stated, “Police officers. I have a search warrant.” Other officers then entered and searched. The court held this was perfectly acceptable. (See also People v. Veloz (1971) 22 Cal.App.3d 499 -- officer said he was a carpet salesman; and People v. Lopez (1968) 269 Cal.App.2d 461 -- officer said he was the manager.)
It is recommended that when a ruse is employed the officers announce their true identity and state their purpose (“to serve a search warrant”) as the actual entry is being made.
7. Vacant Premises
Premises need not be occupied for a warrant to be served. But even if premises are known to be vacant, compliance with knock and notice is recommended since it is easier to comply than to explain to a judge why you didn’t, particularly if it turns out someone is inside.
8. Stores
Knock and notice does not apply to those portions of stores, businesses, and other premises that are open to the public. (People v. Lovett (1978) 82 Cal.App.3d 527.) Private areas, back rooms, offices, etc., require compliance with Penal Code section 1531.
9. Inner Doors
Officers need not “knock and notice” inner doors which are open, People v. Livermore (1973) 30 Cal.App.3d 1073, or if another occupant directs officers to that door, People v. Murray (1976) 64 Cal.App.3d 342, or if the officers are justified in believing no one was within the closed inner room due to a lack of response to the commotion of the initial entry, dog barking, etc., People v. Castaneda (1976) 58 Cal.App.3d 165, or if the premises are a business, People v. Pompa (1989) 212 Cal.App.3d 1308.
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In People v. Howard (1993) 18 Cal.App.4th 1544, the Court of Appeal held that knock and notice will normally not be required at the closed inner door of a house unless, “the residence is unusually large, the outer door does not provide access to the place to be searched under the warrant, or where a single room is the only area subject to a search under the terms of the warrant . . .”Of course, there must be knock and notice at the outer door unless one of the justifications for non-compliance with knock and notice set forth above can be shown. The Howard opinion was cited with approval in People v. Mays (1998) 67 Cal.App.4th 969, 974-976.
However, the Mays case noted that the law regarding knock-notice requirements at a closed inner door is not settled among appellate courts. (Mays at page 974.)
As a general rule, knock and notice should be complied with to the fullest extent possible, giving due regard to the safety of the search team and the likelihood of destruction of evidence.
10. Occupant Cannot Resist Entry
Even if officers do not lawfully comply with Penal Code section 1531, once the occupant of premises reasonably knows that police are entering with a search warrant, the occupant has no right to resist such entry and any such resistance may be prosecuted as an assault against the officers. (People v. Mathews (1994) 25 Cal.App.4th 89, 96-97.)
E. Use of Motorized Battering Ram -- “The Tank”
The case of Langford v. Superior Court (1988) 43 Cal.3d 21, 29, approved the use of a motorized battering ram -- in this case a military armored personnel carrier equipped with a battering ram -- to force entry into fortified dwellings -- in this case, a “rock house” -- from which cocaine was being sold. The court also held, however, that the need for the use of the motorized ram must be explained in the affidavit in support of the search warrant for the dwelling. Approval of the use of the ram must appear on the face of the warrant, and the reasons for the use of the ram must still exist at the time of serving of the search warrant. Langford also held that the use of pyrotechnic devices known as “flashbangs” did not require prior judicial approval.
It is suggested that approval for the use of a motorized battering ram be shown by placing the following words prominently on the face of the warrant: “USE OF MOTORIZED BATTERING RAM APPROVED: YES [ ] NO [ ]”
The magistrate should then place his or her initials in the appropriate space.
Please note that even if the use of a motorized battering ram is approved, Penal Code section 1531 -- “Knock and Notice” -- must still be complied with or justification for non-compliance, or substantial compliance, must be shown.
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F. Conducting the Search
1. Only Peace Officers May Serve Search Warrants
Penal Code section 1530 states that only peace officers may serve a search warrant. This includes peace officers from a different jurisdiction who, having insufficient probable cause to obtain a search warrant for their own search, accompany officers from the department that obtained and served a search warrant in another case. Thus, in People v. Carrington (2009) 47 Cal.4th 145, officers from the Los Altos Police department obtained a search warrant to search the defendant’s residence for articles taken in a burglary. They were accompanied by officers from the Palo Alto Police Department who were investigating a murder connected to the burglary. During the service of the warrant, officers observed two items of evidence relating to the murder. In upholding the search, the California Supreme Court stated the following:
Officers from another jurisdiction may accompany officers conducting a search warrant pursuant to a warrant without tainting the evidence (pertaining to crimes that are the subject of their own investigation) uncovered in the process, even when the officers lack probable cause to support issuance of their own search warrant. (47 Cal.4th at page 167.)
Additionally, the discovery of evidence unrelated to the evidence sought in a warrant need not be inadvertent…. Even assuming the officers who conduct the initial search helped to find evidence of other offenses, their subjective state of mind would not render their conduct unlawful…. The existence of an ulterior motivation does not invalidate an officer’s legal justification to conduct a search. (47 Cal.4th at pages 167, 168.)
Peace officers may be aided by others in the service of a search warrant. Thus, in People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, the California Supreme Court held it was permissible for a burglary victim to accompany searching officers and point out items stolen from him. The officers then seized those items even though none of them was described in the warrant. Similarly, in People v. Superior Court (Moore) (1980) 104 Cal.App.3d 1001, it was held valid for a technical expert from the victim company to accompany officers serving a search warrant and to point out stolen items which were then seized by the officers. It is also legal to use a police dog trained to detect narcotics. (See People v. Russell (1987) 195 Cal.App.3d 186.)
Generally, in cases in which a civilian witness assists searching officers, it is desirable for the civilian witness to explain to the officer how he or she recognizes the item to be seized. The actual seizure should then be the decision of the serving officer. This is what occurred in the Moore case, cited above.
The search warrant forms used by the Los Angeles County District Attorney’s Office are directed to “any peace officer in the County of Los Angeles.” This is based on Penal Code section 1523 which defines a search warrant as “an order in writing, signed by a
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magistrate, directed to a peace officer. . .” (emphasis added), and Penal Code section 1529 which is directed to any peace officer in the County of ______.” Pursuant to this direction, a district attorney investigator may serve a search warrant, but not a deputy district attorney.
Penal Code section 830.8 states that “Federal criminal investigators and law enforcement officers are not California peace officers . . .” A federal criminal investigator or law enforcement officer may nonetheless be the affiant for a state search warrant. (People v. Bell (1996) 45 Cal.App.4th 1030, 1055.) However, such a search warrant should be served by a peace officer as defined in Penal Code section 830.1 with the federal agents merely assisting in the search.
It is a violation of the Fourth Amendment to allow members of the news media or other third parties to enter a residence or participate in the search unless their presence is necessary in aid of execution of the warrant. (Wilson v. Layne (1999) 526 U.S. 603, 618; Hanlon v. Berger (1999) 526 U.S. 808.)
2. After Entry Is Made
After entry is made, the officer should show the original search warrant to the occupant and give him a copy of the warrant. However, there is no requirement that the search warrant be exhibited to the occupant or that a copy of the warrant be given to the occupant. (People v. Calabrese (2002) 101 Cal.App.4th 79, 83-85; Nunes v. Superior Court (1980) 100 Cal.App.3d 915, 936-937.) There is also no requirement that the search warrant be present at the location to be searched. (People v. Rodriguez-Fernandez (1991) 235 Cal.App.3d 543, 552.) Occupants should be treated in a courteous and professional manner. If no one is present at the premises being searched, a copy of the face sheet(s) of the warrant should be left in a conspicuous place within the location. Alternatively, officers may leave a “SEARCH WARRANT: NOTICE OF SERVICE,” form at the location rather than leave a copy of the warrant. A copy of the “notice of service” form appears at the end of this Chapter. (These are merely recommended procedures designed to give the occupant notice of the authority for the search. The Penal Code does not set forth any specific procedures in this area.)
If a search pursuant to a search warrant is “federal in character,” Federal Rule of Criminal Procedure 41(d) requires that officers conducting the search give a copy of the warrant and a receipt for the property taken to the occupant. In the Ninth Circuit, a violation of Rule 41(d) may result in suppression of the evidence, depending on the nature of the violation. (See United States v. Gantt 194 F. 3d 987 (9th Cir. 1999) and United States v. Martinez-Garcia 397 F. 3d 1205 (9th Cir. 2005).) However, a more recent Ninth Circuit case, United States v. Hector 474 F.3d 1150 (9th Cir. 2007), held that “(R)egardless of whether the failure to serve a copy of the warrant was a violation of the Fourth Amendment, the exclusionary rule should not be applied in this case.” Further, the United States Supreme Court has stated that “. . . neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes such a requirement (that the executing officer must present the property owner with a copy of
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the warrant before conducting the search).” (United States v. Grubbs (2006) 547 U.S. 90.)
3. Questioning Occupants
Occupants of the premises being searched may be questioned just as any other persons who come into contact with the police unless they are arrested or are restrained to a degree normally associated with a formal arrest in which case they must be given a Miranda admonishment and waiver before any questions can be asked. (Stansbury v. California (1994) 511 U.S. 318, 325-326.) Questions can include asking the occupants to show the officers where the listed items are. Case law permits officers to ask the occupants if there are weapons on the premises regardless of whether the occupants have been arrested and advised of their Miranda rights. In People v. Simpson (1998) 65 Cal.App.4th 854, police obtained a search warrant for a suspect’s residence for drugs. Pending execution of the warrant, the suspect was detained and handcuffed. He was not Mirandized. The officers asked him if there were any guns on the premises, and he revealed the location of a pistol in his bedroom. The Court of Appeal held that this question of the defendant was permissible under the “public safety exception” to Miranda even though there was no immediate danger to the officers. See also Muehler v. Mena (2005) 544 U.S. 93, which held that it was permissible for officers to detain, question, and handcuff occupants during the service of a search warrant at a gang house for dangerous weapons.
4. Conduct a Thorough Search
The officers should conduct an unhurried, thorough, and systematic search. Each officer searching must know what items are listed on the warrant and can search for those items only. (People v. Frank (1985) 38 Cal.3d 711, 727, at fn. 1.) For example, it is improper for officers searching for described items of stolen property to ask a narcotics expert to accompany them solely to look for unlisted narcotics. However, a narcotics expert who has read the list of described items of stolen property may assist in the search for those items and may seize narcotics if he observes them while searching for the items listed in the warrant. Officers searching for listed narcotics may also ask the assistance of burglary detectives in the search, and if the burglary detectives observe stolen property while searching for narcotics, the stolen property may be seized. (People v. Williams (1988) 198 Cal.App.3d 873.) It is improper to open drawers if the only item listed is a piano. A search warrant cannot be used as a pretext for a general exploratory search. (People v. Frank at page 727; People v. Albritton (1982) 138 Cal.App.3d 79.) However, if searching officers observe items they reasonably suspect are stolen, it is permissible for them to call in other officers investigating the specific crime from which they suspect the observed items were taken and ask those officers to look at the items and verify whether or not they are stolen. (People v. Williams (1988) 198 Cal.App.3d 873; People v. McGraw (1981) 119 Cal.App.3d 582.) See Section I., below, regarding the seizure of unlisted items.
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5. Searching Containers Within the Premises
Generally, all containers within the described premises may be searched pursuant to the warrant. “The police may ordinarily assume that all personal property which they find while executing a search warrant is the property of a resident of the premises subject to search.” (People v. McCabe (1983) 144 Cal.App.3d 827.) Thus, in the McCabe case, the search of a purse in the described premises was held valid despite the fact that it turned out the purse actually belonged to a non-resident visiting the premises. (144 Cal.App.3d at page 830.) Of course, the purse or other container must be large enough to contain one of the items listed on the warrant. See also People v. Berry (1990) 224 Cal.App.3d 162 and People v. Howard (1993) 18 Cal.App.4th 1544, 1555, which also approved the search of a purse located within the residence being searched.
In People v. Kraft (2000) 23 Cal.4th 978, 1043, the defendant argued that searching officers had no right to lift up floor mats in his car and thereby discover photographs that linked him to a murder. Officers were authorized to search for photographs pursuant to the warrant. The California Supreme Court stated that, “By looking under the floor mats, officers merely looked in a spot where the specified evidence of crime plausibly could be found, even if it was not a place where photos normally are stored.”
6. Using “Evidence Collectors”
It is recommended that at least one officer (and preferably two) be designated “evidence collectors” and be able to testify to observing each seized item before it is moved. The evidence collector(s) should also be able to testify to the recovery, packaging, and marking of all seized items.
Documentation of the exact place from which each item is recovered is important and is best done during the search. Consideration should also be given to the use of videotapes, photographs, a fingerprint kit, and scientific analysis at the scene of the search. This may prove extremely helpful in later court proceedings. Also, it is important to maintain the chain of custody and the integrity and security of the items seized.
The search must be terminated when all the described items have been found or it is clear they are not on the premises, vehicle, person, or other things to be searched.
7. Leave an Inventory of Items Seized
The officer must give an inventory of the property seized to the person from whom it was taken, or in the absence of any person, the officer must leave the inventory list at the place where the property was found. (Penal Code section 1535.) The “Search Warrant: Notice of Service” form appearing at the end of this Chapter may also be left at the premises. However, failure to comply with section 1535 will not result in the suppression of the evidence. People v. Phillips (1958) 163 Cal.App.2d 541, 548 and People v. Cooks (1983) 141 Cal.App.3d 224, 292.) Officers need not tell the occupants
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of the premises the legal procedures to be followed in seeking return of the seized property. (West Covina v. Perkins (1999) 525 U.S. 234.)
8. Restraining Orders
There have been isolated instances of attorneys obtaining ex parte restraining orders while a warrant was being served ordering officers to stop searching. Such orders may or may not be valid. It is important to maintain the security of the premises being searched during the litigation of such orders to prevent disposal or destruction of the items sought.
9. Warrant Authorizes Single Search
A search warrant authorizes a single search of the premises listed. If officers have completed their search and left the premises but desire to return and conduct an additional search, they must obtain a new search warrant. (People v. James (1990) 219 Cal.App.3d 414, 419.)
10. Continuous Search
Officers must search continuously while executing a search warrant but may take lunch breaks and breaks for other police business, such as transporting an arrestee to jail, but at least one officer must remain in the premises being searched at all times until the search is terminated. Multiple inventories can be prepared. The preparation of the first inventory and giving it to an arrestee as she was being taken to jail does not preclude additional searching and the preparation of subsequent inventories. (People v. James (1990) 219 Cal.App.3d 414.)
G. Search of a Person
A search warrant may authorize a search of a person if the person is particularly described. (Chapter II, Section F; and People v. Tenney (1972) 25 Cal.App.3d 16.) An officer may detain the person to be searched for the purpose of conducting the search. (People v. Aguilar (1966) 240 Cal.App.2d 502; and People v. Wilson (1967) 256 Cal.App.2d 411, 418.) If the person to be searched has been lawfully observed and then flees, officers may pursue him. (United States v. Baca (1973) 480 F.2d 199.) The search of the person may not be excessive in scope or force. For example, in People v. Bracamonte (1975) 15 Cal.3d 394, the court disapproved the use of both emetics and a stomach pump to recover swallowed items unless a true medical necessity could be shown.
If the described person swallows drugs, an emetic or stomach pump can be used if his life is in danger. A doctor’s opinion is necessary. (People v. Rodriguez (1977) 71 Cal.App.3d 547.) If the defendant vomits the drugs, either on his own or as a result of necessary medical treatment, the drugs may then be seized. (People v. Schad (1971) 21 Cal.App.3d 201.)
In People v. Fulkman (1991) 234 Cal.App.3d 555, officers who entered a residence to execute a search warrant for narcotics saw the defendant place a wad of masking tape into his mouth.
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Believing the defendant was attempting to destroy narcotics, the officers grabbed him, placed him on the ground and held his neck so he couldn’t swallow. A Bic pen was then used to pry the tape, later found to contain heroin, from his mouth. The Court of Appeal held the force used to restrain the defendant and remove the heroin was reasonable. It noted that the mouth is not a “sacred orifice” and “there is no constitutional right to destroy evidence.” (At page 562.) It also noted that brutal or excessive force would render the seizure unlawful.
Persons who are found within premises being searched but who are not named or described in the warrant may not be searched merely because they are on the premises. (People v. Reyes (1990) 223 Cal.App.3d 1218; Ybarra v. Illinois (1979) 444 U.S. 85.) However, if they are validly arrested at the premises, they may then be searched pursuant to that arrest. Persons who are at the premises being searched pursuant to a warrant can be patted down for weapons, particularly if the search is of a place where drug dealing is reasonably suspected of taking place. If an object that might be a weapon is felt, it may be removed and examined. (People v. Thurman (1989) 209 Cal.App.3d 817, 823-26, and People v. Valdez (1987) 196 Cal.App.3d 799, 804.)
Persons who are occupants of premises at the time a warrant is served may be detained during the search. Michigan v. Summers (1981) 452 U.S. 692 states, “[W]e hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of a premises while a proper search is conducted.” (At page 705.) In this case, the defendant was descending the front steps of his home when officers about to execute a warrant for the home encountered him. The officers took the defendant into the home and detained him while they searched. After finding narcotics in the home, officers arrested the defendant, searched him, and found additional heroin on his person. The U.S. Supreme Court held all the police actions to be lawful. See also Muehler v. Mena (2005) 544 U.S. 93, which upheld the detention in handcuffs of four occupants during a search of a gang house for dangerous weapons.
In People v. Glaser (1995) 11 Cal.4th 354, the California Supreme Court noted that, “The endless variations in the facts and circumstances of detention cases [cites deleted] make a complete comparison of cases difficult and perhaps less useful than in some other areas of the law.” (At page 377, fn. 4.) Nevertheless, the Court set forth the following guidelines involving detentions during the service of search warrants:
When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, pursuant to Summers, for the duration of the search. (Summers, supra, 451 U.S. at page 705) If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be
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occurring on the premises or establishing a danger to the officers if the person is released. (People v. Glaser, at page 374.)
People v. Gabriel (1987) 188 Cal.App.3d 1261, held it was permissible to detain the occupant of a residence for one and one-half hours while officers searched and then arrested him when narcotics were finally discovered.
A detention is improper if the detainee cannot be connected to the location to be searched and there is no other probable cause justifying the detention. For example, in People v. Gallant (1990) 225 Cal.App.3d 200, the detention of a person who merely walked up to the front door of the premises being searched was held not valid. But in People v. Huerta (1990) 218 Cal.App.3d 744, a detention was held proper where the defendant walked into the location unannounced, since the officers could reasonably believe that the defendant was connected to the premises because of his unannounced entry.
In People v. Frederick (2006) 142 Cal.App.4th 400, the defendant was present at her mother’s house when a search warrant was served. The defendant asked permission to leave and take her black duffel bag with her. Officers looked inside the bag and found approximately $14,000. The Court of Appeal upheld the search of the black duffel bag, stating that “under certain circumstances, police officers may search the personal effects of a person who is more than a casual visitor, but not a resident of the premises . . .” (142 Cal.App.4th at page 411.) Alternatively, the opinion also stated that the police officers could search the bag for weapons to protect their safety. (142 Cal.App.4th at page 411.)
Similarly, in People v. Ingram (1993) 16 Cal.App.4th 1745, a woman known to be the suspect’s wife was detained by officers executing a search warrant at the husband’s business. She was on the driveway exiting the business, was driving a vehicle registered to him and was believed to live with him at a house that was under surveillance and was also going to be searched. Also, when observed at the business earlier in the day, she went to the office area rather than the area where customers would go. The Court of Appeal held that this justified her detention. It stated:
Under all these circumstances it was reasonable for the trial court to conclude that appellant [the wife] had such a relationship to the business and to Ingram [the suspect] as to create a reasonable suspicion that she was connected to the illegal activities giving rise to the search warrant. Accordingly, we hold the detention was legal and not in violation of the Fourth Amendment. (16 Cal.App.4th at page 1754.)
The case of People v. Simpson (1998) 65 Cal.App.4th 854 approved the actions of the police in detaining the defendant in handcuffs pending execution of a search warrant at his residence and asking him without a Miranda advisement if there were any guns or weapons at his residence. The Court of Appeal held that the defendant’s statement revealing the location of a handgun in his bedroom came within the public safety exception even though the defendant himself posed no threat.
A search warrant authorizing a search of a person does not permit a search for that person at a residence not described in the warrant, even if an officer has a reasonable basis to believe the
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person to be searched is within that residence. (Lohman v. Superior Court (1977) 69 Cal.App.3d 894.)
H. Reading/Seizing Documents
Search warrants routinely include among the items to be seized “utility company receipts, rent receipts and addressed envelopes.” This evidence is used to establish the identity of persons having dominion and control over the premises being searched (see sections III.B. and III.I., above). While searching for such documents, officers may read papers that they come across. If they observe information of an evidentiary value in the paper they are reading, they may make note of the information or may seize the paper, just as other unlisted evidentiary items may be seized if discovered while searching for listed items. (See Seizure of Items Not Described in the Warrant, immediately below.)
For example, in the case of People v. Alcala (1992) 4 Cal.4th 742, officers discovered a slip of paper inserted between the pages of a book. They read it and noted it to be a receipt for a storage locker in Washington. They then obtained a search warrant for the storage locker in Washington and found earrings taken from a murder victim. The defendant asserted that since the storage locker receipt was clearly not a rent receipt, the officers shouldn’t have looked at it since they were to look only for receipts showing residency. The California Supreme Court disagreed. It stated:
Defendant’s contention is without merit. As explained, the police discovered the storage locker receipt while they were engaged in a lawful search authorized by the warrant, and the resulting observation of the information disclosed by that receipt was clearly proper. Because observation of the receipt was lawful, law enforcement officials properly could rely on that information in seeking and obtaining search warrants from a Washington magistrate to search the Seattle storage locker. (4 Cal.4th at page 800, citations omitted.)
I. Seizure of Items Not Described in the Warrant
The general rule is that officers may search for and seize only the property described in the search warrant. (People v. Frank (1985) 38 Cal.3d 711; Skelton v. Superior Court (1969) 1 Cal.3d 144, 155; and People v. Hill (1974) 12 Cal.3d 731, 762.)
However, it is permissible for searching officers to seize any items which are reasonably recognizable as “contraband,” (drugs, stolen property and other items illegal to possess) or “mere evidence” of crimes if observed while searching for the listed items. (People v. Carrington (2009) 47 Cal.4th 145, 166; People v. Gallegos (2002) 96 Cal.App.4th 612; People v. Bradford (1997) 15 Cal.4th 1229, 1293-1294; People v. Easley (1983) 34 Cal.3d 858, 872; People v. Miller (1987) 196 Cal.App.3d 846.)
To justify such a seizure, the officers must lawfully be in the position from where they view the item; the incriminating character of the item as contraband or evidence of a crime must be immediately apparent; and the officers must have a lawful right of access to the object. (Horton v. California (1990) 496 U.S. 128, 135-137.)
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In People v. Kraft (2000) 23 Cal.4th 978, 1043, the California Supreme Court stated that, “Searching officers may seize items not listed in the warrant, provided such items are in plain view while the officers are lawfully in the location they are searching and the incriminating character of the items is immediately apparent.” The Court also stated that it is not necessary that the seized items relate to a particular crime; “. . . it is sufficient that the investigators have probable cause to believe the item is evidence of some crime.” (People v. Kraft, supra, at page 1043 (emphasis in original); People v. Lenart (2004) 32 Cal.4th 1107, 1118-19.)
1. Contraband
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. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157.)
In Skelton, officers obtained a search warrant for four specific items of stolen property. The Supreme Court held it was proper for officers to seize additional items recognizable as stolen property and a bottle of seconal capsules which were observed while the officers were searching pursuant to the warrant. Skelton also noted that it was permissible for the officers to take burglary reports with them during the search so long as any seized items were observed while the officers were searching pursuant to the warrant. (Skelton, supra, at page 158, fn. 12.)
In People v. Layne (1965) 235 Cal.App.2d 188, 191, the court approved the seizure of heroin under a warrant authorizing a search for marijuana. The seizure of a rifle with an obliterated serial number, which was observed while serving a warrant for other items, was ruled proper in the case of People v. Hill (1974) 12 Cal.3d 731, 763, since possession of such a rifle is illegal under Penal Code section 537(e).
It is also permissible to check serial numbers on items which appear to be stolen in order to verify or dispel suspicions. In People v. Williams (1988) 198 Cal.App.3d 873, burglary detectives were assisting narcotics officers in serving a search warrant for narcotics. The burglary detectives observed an inordinate amount of TV sets and other household items that are commonly taken in burglaries. They examined the items to get serial numbers, determined the items to be stolen and seized them. The Court of Appeal upheld the seizure noting that the items were in plain view.
It is not necessary to verify by serial numbers that an unlisted item is stolen before it can be seized. If facts known to an officer establish probable cause to believe an item is stolen, it may be seized. (People v. Rios (1988) 205 Cal.App.3d 833, 840-41.)
The case of Arizona v. Hicks (1987) 480 U.S. 321, places some restriction upon moving items in order to examine serial numbers for the purpose of discovering whether or not the items are stolen. Although Arizona v. Hicks was not a search warrant case and is thus
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distinguishable in most instances, it may still have some limited applicability in some search warrant situations. Basically, the holding of Arizona v. Hicks is that officers need some legal justification before they can move an item in order to examine its serial number. In most search warrant situations, items can be moved to see if the items being searched for are located under them or within them. For example, in People v. Schreier (1985) 158 Cal.App.3d Supp. 20, officers searching for cocaine examined a camera to see if any cocaine was hidden therein. In doing so they observed the serial number, ran the number, and determined the camera was stolen; the search was upheld. See also People v. Rushing (1989) 209 Cal.App.3d 618, in which rock cocaine was found secreted in the false bottom of a WD-40 oil can.
In the case of In re Curtis (1989) 214 Cal.App.3d 1391, the observation of cut wires on a stereo was taken as sufficient evidence to form a belief it had been stolen and to seize it.
Unlisted computer chips were validly seized in People v. Lowery (1983) 145 Cal.App.3d 902, wherein the warrant was for certain described chips, but there were reasonable grounds to believe that the unlisted chips were also stolen. (Lowery at page 908.)
It is important for officers who seize unlisted items on the grounds they appear to be stolen to testify clearly and state persuasively the reasons they believe the items to be stolen. If the prosecution cannot carry the burden of proving that at the time of the seizure the items were reasonably believed to be stolen (or contraband), then the items may be suppressed even if it can later be proved the items are stolen or contraband. (People v. Murray (1978) 77 Cal.App.3d 305; cf. People v. Jackson (1970) 14 Cal.App.3d 57, 66-67; and People v. Stokes (1990) 224 Cal.App.3d 715, 721-722.)
Several cases hold that unlisted drugs discovered during the course of the otherwise valid execution of a search warrant may be seized. See, for example, People v. Miller (1987) 196 Cal.App.3d 846 -- search for counterfeiting materials, discover and seize narcotics; and People v. Russell (1987) 195 Cal.App.3d 186 -- search for amphetamines, discover and seize cocaine.
2. Mere Evidence
In the case of “mere evidence,” there must be a nexus between the item to be seized and criminal behavior. This “nexus test” requires that there be cause to believe that the evidence seized is related to criminal activity or the crime under investigation. (People v. Bradford (1997) 15 Cal.4th 1229, 1294-1296; People v. Carpenter (1997) 15 Cal.4th 312, 364; People v. Hill (1974) 12 Cal.3d 731, 762.) Thus, in Hill, the seizure of cut-off panty hose was proper under a search warrant in a robbery-murder investigation since such items are a common means of forming a mask, but the seizure of four tape recordings was held to be improper since there was no knowledge of the contents of the recordings or how they might be related to the case under investigation. (12 Cal.3d at page 763.) In Carpenter, the seizure of a pair of athletic shoes pursuant to a search warrant in a murder investigation was proper under the nexus rule, where the officer who
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seized the shoes testified that their soles were “somewhat compatible” with cast impressions of the gunman’s shoes. (15 Cal.4th at page 364.)
The “nexus test” was satisfied in the case of People v. Easley (1983) 34 Cal.3d 858, 872. In Easley, one item to be seized was “bailing wire.” Searching officers saw and seized wire clippers which could be used to cut bailing wire. The court held this was a sufficient nexus to justify the seizure of the clippers even though it was not contraband itself but was “mere evidence.”
In People v. Miller (1976) 60 Cal.App.3d 849, officers were executing a search warrant at the home of a burglary suspect. The suspect (defendant) was not restrained and suddenly grabbed a small book from a drawer. Officers then seized the book, which had “Diary” printed on it. Later, at the police station, the “Diary” was found to contain incriminating statements. The court upheld the seizure of the diary (which was not listed in the warrant) by applying the “nexus test.” The court stated, “There was nothing random about the scrutiny of defendant’s diary. When defendant snatched it, he created probable cause to believe that it contained evidence of crime. Thus, the officers were justified in sifting its contents.” (People v. Miller (1976) 60 Cal.App.3d at pp. 854-855.) See also People v. Superior Court (Mack) (1977) 66 Cal.App.3d 839 -- court approved seizure of unlisted “bolt cutters” at home of garage burglar.
In People v. Nicolaus (1991) 54 Cal.3d 551, officers were searching for documents showing the defendant’s dominion and control and occupancy of the premises being searched. While doing so, they opened a manila folder on a desk and saw several handwritten and typed documents wherein the defendant described his plans to kidnap, torture and kill his ex-wife. These were seized. The California Supreme Court held the seizure lawful on the grounds that the officers had a right to search for dominion and control evidence and that if while doing so they see documents which are evidence in the case (the defendant was charged with the murder of his ex-wife), those documents can be seized. (Nicolaus at page 575.)
In People v. Gallegos (2002) 96 Cal.App.4th 612, police officers seized many items not described in the search warrant as part of a lengthy investigation of the Mongols motorcycle gang. The trial court granted the defendant’s motion to suppress on the grounds that there was no nexus between the items seized and those described in the warrant. In reversing the trial court, the Court of Appeal stated as follows:
The incriminating nature of the item is “immediately apparent” when the police have probable cause to believe it is contraband or evidence of a crime; officers need not know, to a near certainty, that the item is evidence of a crime. (Citations) . . . In light of the foregoing principles, we conclude the trial court erred by suppressing the items seized on the ground there was no nexus between them and the items mentioned in the search warrant. Such a nexus is not required. Instead, the required “nexus” is that between the item discovered and a criminal activity, though not necessarily the criminal activity denominated in the warrant. (People v. Gallegos, supra, at page 623.)
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See also People v. Lenart (2004) 32 Cal.4th 1107, 1118-19 -- seizure of an open paper grocery bag containing crumpled coin wrappers and burnt fragments of what appeared to be financial records in a robbery-murder at a bar where such items were believed to be taken; People v. Kraft (2000) 23 Cal.4th 978, 1044-5 -- seizure of a business binder from the trunk of the defendant’s car in a multiple murder case; People v. Atkins (1982) 128 Cal.App.3d 564 -- seizure of unlisted English coins and victim of crime was English tourist; People v. Ramos (1982) 30 Cal.3d 553 -- items related to Taco Bell robbery; People v. Duncan (1981) 115 Cal.App.3d 418, 425 -- seizure of unlisted books of poetry in residence of a rapist who was known to have read poetry to his victims; People v. Guillebeau (1980) 107 Cal.App.3d 531, 552-53 -- seizure of unlisted waffle sole shoes resembling shoe prints at crime scene and newspaper articles describing crime; and People v. Gallegos (2002) 96 Cal.App.4th 612, 629, -- seizure of assault weapons and other firearms, since “It is common knowledge that drug dealers typically use firearms and ammunition in the course of their drug sale operations.” The weapons were also properly seized since the searching officers knew the suspect was on probation and prohibited from owning firearms.
Generally, the courts do not require a strong showing as to why the officers thought the item seized was or might have been evidence of a crime. A reasonable good faith belief is sufficient. (In re Curtis (1989) 214 Cal.App.3d 1391; People v. Miller (1976) 60 Cal.App.3d at pp. 853-854.) For example, in People v. Howard (1976) 63 Cal.App.3d 249, 256, the court stated, “We therefore hold that before an item discovered in the course of a lawful search can be seized, an officer needs only a reasonable belief that the item may be evidence of the commission of a crime.” See also, People v. Cooks (1983) 141 Cal.App.3d 224, 297-298 -- Zebra Murder Case, unlisted notebooks seized; and People v. Easley (1983) 34 Cal.3d 858, 872 -- unlisted wire clippers seized.
3. Amending the Warrant
In People v. Morrongiello (1983) 145 Cal.App.3d 1, police officers obtained a telephonic search warrant for defendant’s person and hotel room. Before the warrant was served, the affiant was informed that the defendant had been intercepted while carrying a duffle bag. When the duffle bag was placed on the floor it made a distinct metallic clunk. The items sought per the warrant were believed to be in a metal container. The affiant then called the same magistrate who approved the telephonic warrant, informed him of the new information, and asked permission to amend the warrant to add the duffle bag. The magistrate approved. The Court of Appeal held the amendment valid. Please note that the second call to the magistrate was tape recorded and carried out in conformity with all procedures necessary to obtain a telephonically authorized search warrant. (See Chapter IX on telephonic warrants.)
J. “Flagrant Disregard” of Authorized Scope of Search
In People v. Bradford (1997) 15 Cal.4th 1229, 1304-7, the defendant contended that the executing officers’ failure to peruse the contents of the search warrant prior to or during the
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search, their failure to limit the area of the search to those areas described in the warrant, and their failure to confine their seizures to those items designated in the warrant demonstrated that the officers’ conduct was in “flagrant disregard” of the scope of the warrant. According to the defendant, this improper police conduct necessitated total suppression of all items seized within the scope of the warrant. The California Supreme Court held that, even assuming that the remedy of total suppression is required when police conduct is in flagrant disregard of the limits of the warrant, such an extreme remedy was not required under the facts of this case. (At pages 1306- 7.) The opinion in Bradford pointed out that a majority of the federal Courts of Appeal have concluded that police conduct in flagrant disregard of the scope of the warrant may justify total suppression of the evidence seized. (At page 1305.)
In Waller v. Georgia (1984) 467 U.S. 39, the United States Supreme Court in a footnote discussed and rejected the defendants’ contention that the police so flagrantly disregarded the scope of the warrants in conducting the seizures that this turned the warrants into impermissible general warrants, requiring suppression of the entire fruits of the warrant, rather than merely suppression for those items as to which there was no probable cause to support seizure. (Waller v. Georgia 467 U.S., at pages 43-44, fn. 3.)
K. Safes and Locked Containers
A search warrant listing “containers” among the items to be searched was held to justify the search of a locked safe in the case of People v. Kibblewhite (1986) 178 Cal.App.3d 783. Indeed, this case approved officers seizing the entire safe and removing it to the police station where it was opened four days later and cocaine found inside.
In People v. Alderrou (1987) 191 Cal.App.3d 1074, two safes were found within the defendant’s residence. One was opened by officers with keys found in the residence. The other safe, bearing a combination lock, was opened by the defendant himself. The case of People v. Pompa (1989) 212 Cal.App.3d 1308 approved the opening of a safe within the defendant’s business.
L. Answering Phone
If the search warrant specifically includes calls as items to be seized, as described in Chapter III, Section D., then searching officers may answer the phone as part of the service of the search warrant and may take note of the nature of the calls.
If the search warrant did not specifically include phone calls, the phone may nevertheless be answered if the nature of the premises searched, the items seized, or the crime under investigation makes it reasonably suspect that the incoming calls would relate to criminal activity such as the residence of an illegal drug dealer or illegal bookmaking establishment. (People v. Drieslein (1985) 170 Cal.App.3d 591, 602; People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163; People v. Sandoval (1966) 65 Cal.2d 303; People v. Morgan (2005) 125 Cal.App.3d 935.)
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The contents of the calls are admissible in court to show the nature of the premises. (People v. Nealy (1991) 228 Cal.App.3d 447, 452; People v. Ventura (1991) 1 Cal.App.4th 1515, 1518; People v. Morgan, supra, at pp. 937-941.)
M. Special Master
If the location to be searched for documentary evidence is in the possession or control of an attorney, physician, psychotherapist, or clergyman, the search may require the use of a “special master.” See Penal Code sections 1524 and 1525. If the attorney, physician, etc., is a mere holder of the documentary evidence and is not a suspect in the commission of a crime, then a special master must be used. But if the attorney, physician, etc., is shown in the Statement of Probable Cause to be reasonably suspected of criminal activity, then the use of a special master is not necessary.
The State Bar maintains a list of attorneys who are authorized to act as special masters. The court issuing the warrant will appoint someone from the list to accompany officers during the service of the warrant if a possible privilege exists. Penal Code section 1524, subdivisions (c) through (f), sets forth detailed procedures for the appointment of a special master, for the manner in which the warrant shall be served, and for a possible court hearing involving any seized property. Any prosecutor or peace officer involved in the preparation of a search warrant that may involve the appointment of a special master should carefully review this statute to ensure proper compliance with these procedures. See Chapter II, Section M and Chapter XI, Section P for further discussions on items seized that may be subject to a privilege.
N. Return to the Search Warrant
The Return to the search warrant consists of an inventory or list of all the property seized during service of the warrant including unlisted items seized during the search. (People v. Guillebeau (1980) 107 Cal.App.3d 531.) Ordinarily, a copy of a recovered property report attached to the return form is sufficient. (See Penal Code section 1537 and see Appendix H for a sample Return.) The Return may be prepared and filed by any officer who participated in the search. It need not be done by the Search Warrant affiant.
If money is seized in the service of the search warrant, it must be listed on the inventory along with the other seized items and stored in a secure manner. If the seized bills do not have any unique evidentiary value in and of themselves, the money may be deposited into a bank account or checking account for safekeeping. This may be done by the use of an addendum to the search warrant return. Such an addendum appears in this manual as Appendix I and is entitled “Request and Order for Deposit of Seized Funds into Bank Account.” This addendum is easily prepared by inserting the Search Warrant number, the amount of money seized and the name of the agency which executed the warrant, e.g., Los Angeles Sheriff’s Department.
The original warrant and affidavit, as well as the Return to the search warrant, should be delivered forthwith to the magistrate or to his court after the search has been conducted and not later than ten days after issuance of the warrant. (Penal Code section 1534 subd. (a) and (c).)
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When the tenth day falls on a weekend or court holiday, a return is timely if filed on the next court business day. (People v. Stevenson (1976) 62 Cal.App.3d 915.)
O. Effect of Late and Deficient Returns
Case law holds that a late return does not necessarily invalidate a search warrant. In People v. Schroeder (1979) 96 Cal.App.3d 730, two search warrants were served upon a bank for certain records. The records were voluminous and the bank took several days to locate the records and turn them over to the police. An initial search warrant return was filed within 10 days listing the items recovered up to that time. As other records were located and returned over to the police, supplemental returns were filed but these were filed more than 10 days after the warrant was issued. The Court of Appeal held that the returns filed after the 10-day limit were valid and that all evidence recovered was admissible.
In People v. Head (1994) 30 Cal.App.4th 954, a search warrant was served within 10 days but the return was not filed until over a year had elapsed. The defendant claimed that she had been prejudiced because the late return had prevented her from identifying a potential defense witness. The Court of Appeal held that the return requirements are ministerial in nature and that police negligence in not filing a timely return did not require suppression of the evidence seized. (See also People v. Couch (1979) 97 Cal.App.3d 377; and People v. Kirk (1979) 99 Cal.App.3d 89.)
A closely related issue regarding the alleged failure of a magistrate to promptly file a search warrant and return in the proper court, as required by Penal Code section 1541, was discussed in the case of People v. Emanuel (1978) 87 Cal.App.3d 205. The court held that in this case the magistrate had complied with Penal Code section 1541, but added by way of dicta that even non- compliance would not invalidate the warrant since, “defendant made no showing why a failure to comply with the procedural requirements of Penal Code section 1541 provides a basis for invalidating the warrant and excluding the evidence.” (87 Cal.App.3d at page 214.)
Similarly, in People v. Guillebeau (1980) 107 Cal.App.3d 531, the Court of Appeal held that the fact the officer did not list all seized items on the return did not invalidate their seizure. In this case the officer did not list items he seized which were not listed on the warrant. The court stated that all items seized during service of the warrant should be listed on the return.
Naturally, every effort should be made to file within the 10-day period a proper return listing all seized items.
P. Releasing Property Seized Pursuant to a Search Warrant
Penal Code section 1536 provides that:
All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable.
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An officer should not release property seized pursuant to a search warrant unless a valid court order, either oral or written, authorizes him to do so.
Sometimes an investigator obtains a search warrant in which it is anticipated that a large amount of stolen property will be recovered. Release of the property to their rightful owners may require multiple court orders. Under these circumstances, the affiant/investigator may desire to seek in the search warrant authority to release recovered property to its rightful owner without having to obtain an additional court order. Such language in the search warrant might be phrased as follows:
“Officers involved in this investigation are authorized to release property seized pursuant to this search warrant to its rightful owner without a special court order to that effect. Such release shall only be made if the owner of the property is clearly identified and the release of the property is well documented, such as a photograph of the owner with the released property.”
There have been isolated instances of attorneys obtaining ex parte court orders for the return of property prior to the disposition of the case and without any legal authority to do so. If there is any doubt regarding the validity of such an order, particularly if the case has not yet been filed or is still pending, the property should not be returned until the legality of the court order is thoroughly reviewed. Such orders are usually not valid.
At the end of this Chapter is a form which can be used for the release of property seized under a search warrant. The property description on the form should indicate where on the Return to the Search Warrant the property is mentioned, i.e., “A Sony 18-inch Color TV with serial number 123 described on the Return to the Search Warrant as Item No. 12.” If no case has been filed, the form should be modified to read, “In re the Matter of Search Warrant #_____” rather than the title of the case. The text should also be modified by striking the phrase “were seized in connection with the above entitled case.” If a case has been filed, the Request and Order should be presented to the judge before whom the case is pending. Otherwise, it should be presented to the magistrate who issued the search warrant.
If property is returned to a victim during the pendency of the criminal case, photographs showing the victim and property together should be taken for possible use in court at a later time.
An attorney may seek the return of money seized from his client pursuant to a search warrant. (Buker v. Superior Court (1972) 25 Cal.App.3d 1085.) However, the funds must be in the possession of the court, police or the prosecuting authority, and the moving defendant must be entitled to the money. (People v. Icenogle (1985) 164 Cal.App.3d 620; People v. Freeny (1974) 37 Cal.App.3d 20, 30-32; and People v. Holland (1978) 23 Cal.App.3d 77.) Moreover, if the property is subject to forfeiture pursuant to Health and Safety Code sections 11470 et seq., and has been presented to the District Attorney’s office within 15 days of its seizure for forfeiture, the disposition of the money will be decided in the forfeiture proceedings. Money subject to forfeiture is not available for attorney’s fees. (People v. Superior Court (Drummer) (1988) 200 Cal.App.3d 105; People v. Superior Court (Clements) (1988) 200 Cal.App.3d 491.)
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Q. Warrantless Arrests While Serving Search Warrant
The case of People v. Ramey (1976) 16 Cal.3d 263, 272, limited the right of officers to enter a home to make an arrest without an arrest warrant. However, the case of People v. McCarter (1981) 117 Cal.App.3d 894 at page 908, holds that since officers serving a search warrant are validly within the premises and their entry is judicially authorized, warrantless arrests within a residence while serving a search warrant are legal.
R. Form -- Notice of Search Warrant Service
See following pages.
S. Form -- Request and Order for Release of Property
See following pages.
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SEARCH WARRANT NOTICE OF SERVICE
TO WHOM IT MAY CONCERN:
1. THESE PREMISES HAVE BEEN SEARCHED BY PEACE OFFICERS OF THE ______DEPARTMENT (Name of Searching Agency) PURSUANT TO A SEARCH WARRANT ISSUED ON (Date) BY THE HONORABLE (Name of Magistrate) JUDGE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES.
2. THE SEARCH WAS CONDUCTED ON . (Date) A LIST OF THE PROPERTY SEIZED PURSUANT TO THE SEARCH WARRANT IS ATTACHED.
3. IF YOU WISH FURTHER INFORMATION, YOU MAY CONTACT:
AT . (Name of Investigator) (Telephone Number)
1 (Name) (Employing Agency) 2 (Address) (Telephone Number of Petitioner) 3 4 IN THE SUPERIOR COURT OF CALIFORNIA
5 COUNTY OF LOS ANGELES
6 PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO. ) 7 Plaintiff, ) REQUEST AND ORDER ) FOR RELEASE OF PROPERTY 8 v. ) JOHN DOE, ) 9 ) Defendant(s) ) 10 I. REQUEST FOR RELEASE OF PROPERTY 11 Items were seized pursuant to Search Warrant No. ______from the (premises) (vehicle) 12 (person) further described as: 13
14
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16 These items are retained in police custody pursuant to Penal Code section 1536. 17 Petitioner seeks the release of (certain of) these items from police custody for purposes of 18 disposition of them. The items for which release is sought are: 19
20
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22
23
24
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1 These items (were seized in connection with the above entitled case but) are no longer
2 needed for the following reasons:
3
4
5
6
7 The proposed disposition of these items upon release to petitioner is as follows:
8
9
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12 Wherefore, petitioner seeks the release of said items.
13 I swear under penalty of perjury the foregoing is true and correct to the best of my
14 information and belief.
15 (Date) (Signature of Petitioner) 16
17 II. ORDER AND RELEASE OF PROPERTY
18 TO THE: (Police Department having custody of items sought to be released) 19 Good cause having been shown, it is ordered that the items described above be released 20 from police custody into the custody of Petitioner, ______, for 21 disposition as described above. 22
23 (Date) (Signature of Judge)
24 (Print Name of Judge) 25
CHAPTER XI COURT PROCEEDINGS IN SEARCH WARRANT CASES
A. Proposition 8 -- “Truth-In-Evidence”
The passage of the “Truth-In-Evidence” provision of Proposition 8 by the voters in 1982 placed the following phrase in the California Constitution: “[R]elevant evidence shall not be excluded in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense. . . .” (Cal. Const. Art. I, section 28, subd. (d).) The legal effect of this language is to limit the application of the exclusionary rule as a remedy for unreasonable searches to just those situations set forth in decisions of the United States Supreme Court interpreting the federal Constitution. In other words, the so-called “independent state grounds doctrine,” wherein evidence was excluded because it was purportedly seized in violation of the California Constitution, is no longer law in California (since June 9, 1982, the effective date of Proposition 8). Thus, the exclusionary rule is applied only in those situations in which evidence was obtained in a manner which is deemed a violation of the federal Constitution. See In re Lance W. (1985) 37 Cal.3d 873, 882. In determining whether evidence was seized in a manner which violates the federal Constitution, decisions of the United States Supreme Court supersede and are controlling over decisions of the California Supreme Court and all other California courts. This is important because prior to Proposition 8, California courts excluded evidence as having been illegally seized in situations wherein the U.S. Supreme Court would not have excluded the evidence.
An alternative ground for arguing that the exclusionary rule should not apply in a particular case is the United States Supreme Court decision in Herring v. United States (2009) 555 U.S. ______(129 S.Ct.695). In this decision the Court stated that “The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies.” The Court further stated that “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
B. Standard of Review -- “Totality of the Circumstances Test”
The United States Supreme Court case of Illinois v. Gates (1983) 462 U.S. 213, sets forth the standard of probable cause by which the validity of a search warrant is determined. The Court specifically abolished the technical “two prong” test for search warrants and substituted a common sense “totality of the circumstances” test. Warrants that might not have been valid under the old two-prong test may now be valid under the totality-of-the-circumstances test. The subsequent case of Massachusetts v. Upton (1984) 466 U.S. 727, affirmed the holding of Illinois v. Gates and held specifically and unequivocally that the “two-prong” test had been abolished.
Both Gates and Upton speak of probable cause for the issuance of a search warrant having been established so long as there is sufficient evidence in the affidavit to establish a “fair probability” that the contraband or evidence sought will be found in the place to be searched. (Gates, supra, at page 238, and Upton, supra, at page 733.)
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The “totality-of-circumstances” test and “fair probability” standard of probable cause are expressed in the following quotation from Illinois v. Gates:
[W]e conclude that it is wiser to abandon the “two-prong” test established by our decisions in Aguilar and Spinelli. In its place we affirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. [Cites omitted.] The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause existed. (Illinois v. Gates at page 238, emphasis added.)
Please note that the standard by which the validity of the warrant is judged by a reviewing court is whether the magistrate issuing the warrant had a substantial basis for concluding that probable cause existed. (Illinois v. Gates, supra at pages 238-9.) Thus, the standard of review of the search warrant is less than the standard of issuance.
Appellate cases specifically holding Gates applicable to suppression motions in California include People v. Kraft (2000) 23 Cal.4th 978, 1040-1041; People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315; People v. Fernandez (1989) 212 Cal.App.3d 984, 986; People v. Love (1985) 168 Cal.App.3d 104, 111; People v. Aho (1985) 166 Cal.App.3d 984; and People v. Ramirez (1984) 162 Cal.App.3d 70.
C. Penal Code Section 1538.5 Motions
1. Sole Suppression Remedy
If a defendant wishes to challenge the lawfulness of a search and seizure, such a challenge can be made only under the authority of section 1538.5. There is no such thing as a common law or non-statutory search and seizure motion. (People v. Barnes (1990) 219 Cal.App.3d 1468; People v. Anderson (1989) 210 Cal.App.3d 24, 27-28; People v. Williams (1989) 213 Cal.App.3d 1186, 1197.)
2. Five Days Notice and Written Motion Required at Preliminary Hearing
Penal Code section 1538.5 subd. (f)(2) requires five days notice and a written motion accompanied by a memorandum of points and authorities before a defendant can make a suppression motion at the preliminary hearing, as stated in this subdivision as follows:
The motion may be made at the preliminary examination only if, at least five court days before the date set for the preliminary examination, the defendant has filed and personally served on the People a written motion accompanied by a memorandum of points and authorities as required by paragraph (2) of subd. (a).
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The People are not required to file a written response to the defendant’s motion. (People v. Britton (2001) 91 Cal.App.4th 112.)
3. Precise Grounds for Suppression Must Be Specified
In the case of People v. Williams (1999) 20 Cal.4th 119, at page 130, the California Supreme Court held that a defendant who moves to suppress evidence must set forth the factual and legal basis for the motion.
In sum, we conclude that under section 1538.5 as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure.
4. One Evidentiary Hearing Only
Penal Code section 1538.5, subd. (i), limits the taking of evidence on search and seizure issues to one hearing, either at the preliminary hearing or in a pre-trial special hearing. There are some exceptions to this, but they will not often be applicable. If the law is strictly followed, as it should be, litigation of search and seizure motions will be considerably reduced. The relevant language of section 1538.5, subd. (i) is as follows:
[I]f the offense was initiated by . . . complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at the special hearing. If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing.
Thus, a defendant must elect as to where he wants to have the evidentiary hearing on his suppression motion. If the motion is made at the preliminary hearing, it may be renewed at the special hearing but is “limited to the transcript of the preliminary hearing and to the evidence which could not reasonably have been presented at the preliminary hearing, [etc.]” as set forth above. If the 1538.5 was not made at the preliminary hearing, it may be conducted de novo at the special hearing. (People v. Drews (1989) 208 Cal.App.3d 1317, 1324.)
If a defendant does not make a 1538.5 motion at his preliminary hearing and seeks to make it for the first time at the special hearing, the transcript of the preliminary hearing is not admissible at that hearing unless both parties stipulate to its admission or it is admissible pursuant to some other exception allowing the use of former testimony. (People v. Neighbors (1990) 223 Cal.App.3d 1115, 1119-1120.)
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If the 1538.5 motion is made at the preliminary hearing and is then renewed by the defendant at the special hearing, the People may recall witnesses who testified at the 1538.5 motion at the preliminary hearing whether or not the defendant presents any new witnesses at the renewed 1538.5 motion. (People v. Hansel (1992) 1 Cal.4th 1211, 1214.) Please note also that under Penal Code section 1538.5, subd. (f)(1), a defendant can make a 1538.5 motion at a preliminary hearing only as to that evidence which the People seek to introduce at the preliminary hearing. Such motion must be properly noticed pursuant to Penal Code section 1538.5 subd. (f)(2), quoted above. In misdemeanor cases, the 1538.5 suppression motions must be made at a special hearing prior to trial. See Penal Code section 1538.5 subd. (g), regarding such motions and the review thereof.
Penal Code section 1538.5 subd. (j) states in part that a court’s ruling granting defendant’s first suppression motion is not binding in a second prosecution of defendant on the same charges. Penal Code section 1538.5 subd. (j) expressly permits the People to relitigate the suppression motion following dismissal and refiling of the case. (See People v. Glenn (1997) 56 Cal.App.4th 886.) However, if the newly refiled case is assigned to the same judge who originally granted the motion to suppress, the People do not have the right to disqualify that judge pursuant to Code of Civil Procedure section 170.6. (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798.)
Please note that 1538.5 motions must be made before trial in strict accordance with the provisions of section 1538.5. It is improper for a 1538.5 motion to be made during the trial. (People v. Jackson (1992) 7 Cal.App.4th 1367, 1370, fn. 3.)
Note also that the parties must “present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the magistrate or judge presiding at the hearing rather than by means of written affidavits.” (People v. Johnson (2006) 38 Cal.4th 717, 726.)
5. Application of 1538.5, Subd. (i)
Unless a 1538.5 motion is made, evidence relating solely to the lawfulness of a search is irrelevant. The prosecutor need only ask the witness, “Officer, where did you find this revolver?” It is unnecessary to show how he happened to be lawfully in the house where it was found or that he lawfully searched the person on whom he found it. If no 1538.5 motion is made, it is unnecessary to establish the lawfulness of the seizure of the evidence. Moreover, if a defendant seeks on cross-examination to ask questions relating to the lawfulness of the search, such questions are irrelevant and should be objected to. If a defendant wants to challenge the lawfulness of a search, he must make a 1538.5 motion. If he does not make a 1538.5 motion, any questions regarding search and seizure are irrelevant, whether on direct or cross-examination. (People v. Barnes (1990) 219 Cal.App.3d 1468; People v. Williams (1989) 213 Cal.App.3d 1186, 1197; and People v. Anderson (1989) 210 Cal.App.3d 24, 27-28.)
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Suppose the defense attorney satisfies the five-day notice requirements of Penal Code section 1538.5 (f)(2), and he is making a 1538.5 motion as to the evidence the prosecution will seek to introduce at the preliminary hearing. What does the prosecutor do then? In such an instance, the People should first require the defendant to establish “standing” to object to the search. If the defendant does so, the prosecution must then establish the lawfulness of the search and seizure. However, if the defendant cannot establish “standing,” then the 1538.5 motion must be denied at that point and the lawfulness of the search need not be shown. “Standing” is discussed in greater detail in D., below.
In cases where the evidence was seized pursuant to a search warrant, the lawfulness of the search can be shown by simply asking the officer, “Did you have a search warrant?” Once the officer answers, “yes,” the burden then falls on the defendant to show that the search warrant was defective by seeking, as part of his 1538.5 motion, to quash and/or traverse the warrant. Motions to “quash” and “traverse” are discussed below.
6. Dismissal on Search and Seizure Grounds -- Penal Code Section 995
Unless a defendant specifically makes a 1538.5 motion at the preliminary hearing, he cannot make a Penal Code section 995 motion on search and seizure grounds. See People v. Anderson (1989) 210 Cal.App.3d 24, 28, which states, “[S]ince we conclude that no motion to suppress or other effective objection to the reception of the seized evidence was made at the preliminary hearing, it was error to set aside the information pursuant to Penal Code section 995 on search and seizure grounds.”
If a defendant makes a 1538.5 motion at the preliminary hearing and the motion is denied and he does not renew it in the Superior Court, he cannot further appeal the denial of the 1538.5. (People v. Kain (1989) 212 Cal.App.3d 816.)
D. Standing to Challenge Search8
Under federal case law -- now applicable to California as a result of Proposition 8 -- if an allegedly illegal search takes place, only those persons whose constitutional right against unreasonable search was personally violated can challenge the legality of the search and ask that the fruits of the search be suppressed. In other words, if the police illegally search the home of Mr. A, and in doing so find evidence against Mr. B, then Mr. B cannot assert in court that the search was illegal, nor may he move to have the evidence suppressed. Under federal law only,
8 The California Supreme Court has noted that “the United States Supreme Court has largely abandoned use of the word “standing” in its Fourth Amendment analysis. (Minnesota v. Carter (1998) 525 U.S. 83, 87.) “In the future, to avoid confusion with the federal high court’s terminology, mention of ‘standing’ should be avoided when analyzing a Fourth Amendment claim.” (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3.) In this section, the use of the word “standing” and the concept of a defendant’s rights under the Fourth Amendment to challenge a search have been used interchangeably.
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Mr. A has “standing” to assert a violation of constitutional rights since it was A’s home -- not B’s -- that was searched. (Rakas v. Illinois (1978) 439 U.S. 128.)
The United States Supreme Court law on standing was expressly held applicable to California in the cases of In re Lance W. (1985) 37 Cal.3d 873, 890; People v. Martins (1991) 228 Cal.App.3d 1632, 1637; People v. Thompson (1988) 205 Cal.App.3d 1503; People v. Johnson (1984) 162 Cal.App.3d 1003, 1009-10; People v. Hernandez (1988) 199 Cal.App.3d 1182; People v. Ooley (1985) 169 Cal.App.3d 197, 202-203; and People v. Root (1985) 172 Cal.App.3d 774, 778.
The United States Supreme Court has been somewhat restrictive in conferring standing upon charged defendants. For example, the Court has held that the violation of a co-defendant’s or co- conspirator’s rights does not automatically give the defendant the right to challenge the search. Thus, if the police search Mr. A’s home and find evidence against both Mr. A and Mr. B, only Mr. A may contest the legality of the search even if A and B are charged as co-defendants. (United States v. Padilla (1993) 508 U.S. 77, and Alderman v. United States (1966) 394 U.S. 164.) Similarly, mere presence by a defendant at the scene of an illegal search does not automatically give standing to that defendant. (Rakas v. Illinois, above, and People v. Ooley (1985) 169 Cal.App.3d 197, 203.) Further, being charged with a crime of possession does not automatically confer standing upon the charged defendant. (United States v. Salvucci (1980) 448 U.S. 83; Rawlings v. Kentucky (1980) 448 U.S. 98; People v. Root (1985) 172 Cal.App.3d 774, 777-8; and People v. Thompson (1988) 205 Cal.App.3d 1503, 1509.)
In the case of People v. Martins (1991) 228 Cal.App.3d 1632, 1637, a defendant who shipped a suitcase to another person 3,000 miles away was deemed not to have Fourth Amendment rights in that suitcase or its contents or in the residence to which the suitcase had been delivered. On the other hand, in the case of People v. Ybarra (1991) 233 Cal.App.3d 1353, a defendant was deemed to have standing in a locked tool box of his which he was keeping in a friend’s motel room. He had also been given a key to the motel room by the friend. The Court of Appeal held the defendant demonstrated a reasonable expectation of privacy in the tool box. (At page 1362.) Similarly, in People v. Koury (1989) 214 Cal.App.3d 676, two persons were deemed to have Fourth Amendment rights in a residence in which they frequently stayed and kept locked luggage.
The case of People v. Danielson (1992) 3 Cal.3d 691, 708, held that the defendant had no right to object to the police search of a stolen duffle bag which was otherwise lawfully seized from a storage area where the defendant had placed it since the duffle bag and its contents were stolen and did not belong to the defendant. In the case of Minnesota v. Carter (1998) 525 U.S. 83, persons who were merely visiting in an apartment unit were held to have no reasonable and constitutionally protected expectation of privacy in that apartment. Thus, the arguably unlawful actions of a police officer who looked through a gap in the blinds and saw the defendants bagging cocaine would not result in any suppression of evidence since the defendants had no “standing” in the premises. The Court did note, however, that an overnight guest may have a reasonable expectation of privacy in the residence of another. Similarly, a defendant had no expectation of privacy regarding marijuana plants in his backyard that were readily visible from his neighbor’s property. (People v. Claeys (2002) 97 Cal.App.4th 55.)
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Standing is an important concept since an illegal search may yield evidence against many suspects, but only those who can demonstrate that their constitutional rights were personally violated can have the evidence suppressed. Thus, evidence which was seized illegally can be introduced in court if the charged defendants cannot establish standing to assert the illegality of the search. A defendant who seeks to suppress evidence bears the burden of proof to establish standing.
The proponent of a motion to suppress has the burden of establishing his own Fourth Amendment rights were violated by the challenged search or seizure [citations]. The mere legitimate presence on the search premises by invitation or otherwise is insufficient in itself to create a protectable expectation. (People v. Ooley (1985) 169 Cal.App.3d 197, 202.)
If a defendant testifies at the standing hearing -- or at any pretrial hearing -- and then testifies in a contrary manner at trial, he may be impeached by his own testimony at the pretrial hearing. See People v. Johnson (1984) 162 Cal.App.3d 1003 at pp. 1010-11; and see also People v. Drews (1989) 208 Cal.App.3d 1317, 1325, which states, “[I]f a defendant’s testimony at a pretrial suppression hearing is inconsistent with his testimony at trial, the People may use such pretrial testimony for impeachment.”
A defendant may establish the right to challenge evidence obtained by a search and seizure by introducing documents bearing his name seized by the police from the searched premises. These documents may also be used by the prosecution to show the defendant’s dominion and control over the premises. (People v. Williams (1992) 3 Cal.App.4th 1535, 1542-1543.)
The exact point at a Penal Code section 1538.5 suppression motion at which the defendant must show that his Fourth Amendment rights were violated is unclear. The case of People v. Johnson (1984) 162 Cal.App.3d 1003, states that the defendant must show standing to contest a search before the prosecution will be required to show that the search was legal and that if the defendant cannot show standing, then the prosecution need never show the search was legal. The case of People v. Contreras (1989) 210 Cal.App.3d 450, 456, held that it is within the discretion of the trial judge to decide which issue he or she wishes to hear first, either the legality of the search or the defendant’s standing to contest it. It went on to say that if the search issue is to be decided first and if the prosecution cannot show the search was legal, the defendant must still prove he or she had standing in order for the fruits of the search to be suppressed.
Experience has shown that it is preferable to litigate the standing issue before litigating the issue of the legality of the search. There are two reasons for this. First, the issue of standing can usually be litigated much more quickly than the issue of the search, and if standing cannot be shown then the legality of the search need not be litigated at all. Secondly, a defendant may be unwilling to testify to standing unless he knows for sure he can prove the search was illegal. The reason for this is that since the defendant’s testimony at the standing hearing can be used for impeachment purposes at trial, requiring the defendant to prove standing often forces him to elect between admitting possession of an item at the standing hearing and denying possession of the item at trial. If the defendant is not certain he can show the search was illegal, he may be unwilling to claim standing knowing that the standing evidence can be used against him at trial.
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This may discourage frivolous 1538.5 motions. Thus, it is preferable to require the defendant to show standing before litigating the search issue.
E. Prosecution Should Not Concede Standing
The prosecution should rarely, if ever, concede that a defendant has standing. Even if a search was of a residence or vehicle in which the defendant clearly did have standing, he should nevertheless be required to present evidence of this. The reason for this is to develop a record with which to impeach the defendant in the event he tries to deny possession of seized items at trial. Requiring a defendant to establish standing usually has the effect of preventing him from testifying at trial that, “it wasn’t my dope,” or “I didn’t live in the house, I was only visiting.”
A prosecutor should not allow a defendant to establish standing through unsworn claims of his defense counsel and should insist that the defendant put on competent evidence. If the defendant attempts to prove standing by submitting sworn affidavits, either of the defendant or of other witnesses, the prosecution should insist upon its right to cross-examination under the authority of Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 386, and People v. Williams (1973) 30 Cal.App.3d 502, 510.
What if part of the probable cause for the issuance of a search warrant is based upon evidence discovered during a search to which the defendant lacks standing to object? In People v. Madrid (1992) 7 Cal.App.4th 1888, officers illegally searched a car. Evidence discovered during that search was used as a basis for a search warrant for the defendant’s home. The defendant asserted the search warrant should be declared invalid as a “fruit of the poisonous tree.” The Court of Appeal did not agree. It stated, “the general principles of law on standing, as articulated by the high court, permit a defendant to prevail on a “fruit of the poisonous tree” claim only if he or she has standing regarding the violation which constitutes the poisonous tree (again, in this case, the automobile search).” (Madrid at page 1898) Thus, the fact that the search of the automobile may have been illegal was irrelevant since the defendant lacked standing to object to that search.
Please note also that a defendant does not have standing to object to a search merely because he is charged as a coconspirator with another defendant who has standing. Each defendant must establish that he or she has standing irrespective of the standing of other defendants or co- conspirators. It has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure. (United States v. Padilla (1993) 508 U.S. 77.)
F. Defendant’s Disclaimer/Abandonment on Issue of Standing
1. Disclaimer
A defendant’s statements at the time of his arrest or thereafter that the area or item searched was not his or that he had no knowledge of the recovered evidence (“What suitcase? It’s not my suitcase,” or “What dope? It’s not my dope”) may be asserted by the prosecution as evidence of no standing. “It is settled law that a disclaimer of
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proprietary or possessory interest in the area searched or the evidence discovered terminates the legitimate expectation of privacy over such area or items.” (People v. Stanislawski (1986) 180 Cal.App.3d 748, 757; and People v. Scott (1993) 17 Cal.App.4th 405, 410; People v. Mendoza (1986) 176 Cal.App.3d 1127.)
In People v. Dasilva (1988) 207 Cal.App.3d 43, defendant was stopped for a traffic violation and drugs were recovered from travel bags in the trunk of his car. Defendant had consented to a search of the trunk but claimed he neither owned nor used the travel bags in the trunk. The Court of Appeal stated: “We will not extend California law to permit a defendant who disclaims possession of an object to take a contrary position in an effort to attain standing to seek to exclude that object from evidence. We hold because Dasilva disclaimed ownership in the contents of the trunk other than the guitar case, he lacks standing to seek their exclusion from evidence.” (Dasilva, 207 Cal.App.3d, at page 49.)
However, other cases have held that a person’s expectation of privacy is the same whether the person admits or denies ownership of the item. In People v. Dees (1990) 221 Cal.App.3d 588, the prosecution contended that a defendant’s statement to police that he owned a Cadillac was evidence supporting his conviction for possession of drugs found in the car. When the defendant later denied ownership of the car, the prosecution argued that because of that denial he lacked standing to challenge the search. The Court of Appeal conferred standing to the defendant, concluding that the prosecution could not take the contradictory positions that his admission of ownership proved his guilt and his subsequent disavowal of ownership defeated his Fourth Amendment interest. Similarly, in People v. Dachino (2003) 111 Cal.App.4th 1429, the Court of Appeal held that the defendant had standing to challenge the search of a firearm the police testified they found in defendant’s waistband, even though the defendant testified at the suppression motion that he never had a gun on his person.
2. Abandonment
In People v. Daggs (2005) 133 Cal.App.4th 361, the Court of Appeal found that the defendant had abandoned his cell phone at the scene of a robbery and therefore no unlawful search occurred when the police removed the phone’s battery to view the electronic serial number, hex number, and decimal number identifying the phone.
In People v. Juan (1985) 175 Cal.App.3d 1064, defendant left his jacket draped over a chair at a restaurant and exited the restaurant. Pursuant to an informant’s tip that the defendant had committed a robbery, officers went to the restaurant, saw the jacket, seized and searched it. Evidence connecting the defendant to the robbery was found within. The defendant claimed the search of his jacket was illegal. The trial court and Court of Appeal held the evidence admissible. Discussing the issue in terms of “reasonable expectation of privacy” i.e., “standing,” the Court of Appeal stated, “[B]y leaving his jacket unattended in the restaurant, Juan exposed it to the public and he cannot assert that he possessed a reasonable expectation of privacy in the pockets of his jacket. The ‘search’ of Juan’s jacket was therefore lawful since it did not violate his constitutional rights.” (175 Cal.App.3d at page 1069)
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G. Motion to Quash Search Warrant
Penal Code section 1538.5, subsection (a)(1)(B), states that the fruits of a search may be suppressed if, “The search or seizure with a warrant was unreasonable because (1) the warrant is insufficient on its face.” Of course, a defendant must first make a 1538.5 motion and establish standing to contest the search before he can make a motion to quash. If this is done, the judge then examines the face of the warrant and supporting affidavit to determine its validity.
Typically, in a motion to quash the defense will assert that the affidavit fails to establish probable cause for the issuance of the warrant as a matter of law. Normally, only the warrant and affidavit may be considered by the court in ruling on the motion, but in the case of People v. Christian (1972) 27 Cal.App.3d 554, the prosecution was allowed to call the affiant as a witness to “explain” some language used in the affidavit.
Please recall that the standard of review of a search warrant in a motion to quash is not whether the reviewing magistrate thinks probable cause has been shown but whether the issuing magistrate had a “substantial basis” for believing the warrant valid -- as discussed in Section B., above.
In “close cases,” warrants should be upheld:
[T]he resolution of doubtful or marginal cases should largely be determined by the preference to be accorded warrants. (United States v. Ventresca (1965) 380 U.S. 102, 108.)
H. Motion to Traverse Search Warrant
1. Generally
The statutory authority for a motion to traverse is Penal Code section 1538.5, subsection (a)(1)(B)(iii); “there was not probable cause for the issuance of the warrant.” Basically, in a motion to traverse, the defense will seek to “go behind” the information set forth in the affidavit and show that it is false or misleading or that relevant and material information had been omitted from it (recall that a motion to quash deals with a “four corners” review of the face of the warrant and affidavit only).
2. Procedure -- Franks v. Delaware
As a result of Proposition 8, the constitutional dimensions of a motion to traverse are now governed by federal case law as set forth in Franks v. Delaware (1978) 438 U.S. 154. The Franks case is best summarized and explained in the California case of People v. Wilson (1986) 182 Cal.App.3d 742.
In discussing Franks, and in establishing the correct procedure for traversal motions, Wilson stated the following -- which should be read carefully -- at page 747:
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The Franks court specifically dealt with the question whether a defendant is entitled to an evidentiary hearing to prove affirmative misstatements in the warrant affidavit. The court held a defendant must (1) offer specific proof that the affiant made statements which were deliberately false or in reckless disregard of the truth and (2) show that the affidavit is insufficient to justify a finding of probable cause without the allegedly false statements. The court explained: “To mandate an evidentiary hearing, the challenger’s attack must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.”
Moreover, in Franks, the Supreme Court pointed out that if what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant. The court went on: “On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments to his hearing. Whether he will prevail at that hearing is, or course, another issue.” (Franks at pp. 171-172.)
The important thing to know is that the defendant cannot simply say he’s making a motion to traverse and then begin calling witnesses. An initial showing of inaccuracy must be made. This principle was well established in California case law even before Franks v. Delaware. “Before a hearing is required to test the veracity of an affidavit, the defense must relate, with some specificity, the reasons for contending the affidavit is inaccurate.” (See Theodor v. Superior Court (1972) 8 Cal.3d 77, 103; and People v. Cook (1978) 22 Cal.3d 67, 78.) This is true even if it is the search warrant affiant whom the defense seeks to call as a witness. An initial showing of material inaccuracy must still be made. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1581; and People v. Superior Court (Fall) (1973) 32 Cal.App.3d 788 at pp. 792 and 796.)
In People v. Duval (1990) 221 Cal.App.3d 1105, the defense made a traversal motion and in support of this motion the defendant personally testified. The search warrant in question had been based largely upon information provided by an informant. The defendant testified that the statements attributed to the informant were false and that, “I can honestly tell you . . . no such person exists.” The trial court held that this testimony did not satisfy the Franks v. Delaware burden for the traversal motion and the Court of
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Appeal agreed. The defense was not permitted to call and cross-examine the affiant as a witness. (221 Cal.App.3d at pp. 1113-1114.)
In People v. Sandlin (1991) 230 Cal.App.3d 1310, the defendants attempted to satisfy the requirements of Franks v. Delaware by submitting affidavits stating that they did not do what the affidavit in support of the search warrant alleged. The Court of Appeal held this was not a “substantial preliminary showing” justifying a traversal hearing as envisioned by Franks. The Court stated that, [t]hese are little more than self-serving general denials and fall far short of the substantial showing requirements of Franks.” It continued, “Mere conclusory contradictions of the affiant’s statements are insufficient for the ‘substantial preliminary showing’ Franks requires.” (Sandlin, 230 Cal.App.3d 1310, at page 1318.)
In People v. Benjamin (1999) 77 Cal.App.4th 264, police officers alleged in a search warrant affidavit that they could smell a strong odor of fresh marijuana emanating from the residence. Pursuant to the warrant, officers searched the defendant’s residence and recovered 18 marijuana plants and apparatus used to cultivate marijuana. The defendant submitted his declaration stating that he did not smell a “strong odor of fresh marijuana coming from the residence.” The defendant also submitted a declaration from an attorney who declared an expertise relating to marijuana and its cultivation and opined that the affiant’s statement in the affidavit that the officers could smell marijuana was false. The Court of Appeal held this was insufficient for the “substantial preliminary showing” required by Franks. The Court also held the following:
[W]e conclude, among other things, that although the probable cause for a search cannot be supported by the results of the search, the results can properly be used to support the truthfulness of the statements in the search warrant affidavit where their credibility has been attacked in connection with a motion for an evidentiary hearing under Franks. (Benjamin, 77 Cal.App.4th, at page 268.)
Occasionally, at a traversal motion the defense will seek to call as a witness the magistrate who signed the search warrant in an attempt to show that the magistrate did not review it properly. Again, there must be some showing that this might be true before the defense can call the magistrate as a witness. The defense cannot simply subpoena the magistrate who signed the search warrant and ask questions generally. (People v. Kashini (1983) 143 Cal.App.3d 77.)
Please note that an affiant need not include every detail of his investigation in his search warrant affidavit and that information that is relevant only to show the lawfulness of the evidence recited in the affidavit need not be included in the affidavit. (People v. Madrid (1992) 7 Cal.App.4th 1888, 1900; and People v. Cook (1978) 22 Cal.3d 67, 94.)
Another important point is that intentional falsehoods or omissions, even if by the affiant and even if made with the intent of deceiving the magistrate, do not automatically invalidate the warrant. The remedy, as set forth in Franks v. Delaware, above, is to “correct and retest.” This supersedes prior California cases which held that deliberate
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falsehoods or omissions required automatic suppression of a warrant. These cases, such as People v. Cook, cited above, and People v. Kurland (1980) 28 Cal.3d 376, are no longer good law on the issue of remedies for inaccuracies. The “correct and retest” remedy has specifically been held to be applicable in California in People v. Bradford (1997) 15 Cal.4th 1229, 1297-1299, and People v. Costello (1988) 204 Cal.App.3d 431, 443.
3. Luttenberger Motions
The case of People v. Luttenberger (1990) 50 Cal.3d 1, provides a mechanism whereby a defendant seeking to traverse a search warrant may be able to discover certain police records and other information relating to the reliability of an informant referred to in an affidavit in support of a search warrant. Thus, a defendant might make a Luttenberger discovery motion prior to his or her traversal motion. Luttenberger motions are discussed at length in Chapter VI, Part B, dealing with informant disclosure.
4. Responding to Defense Affidavits
How can the prosecution respond to affidavits submitted by the defense in support of a traversal motion? The prosecution can respond by demanding to cross-examine the affiants. (See Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 386, and People v. Williams (1973) 30 Cal.App.3d 502, 510.) Cross-examination often reveals that the affidavits are of little or no evidentiary value and will not support the defense allegations. If the author of the affidavit is not available for cross-examination, the affidavit is inadmissible.
More commonly, however, the affidavits submitted by the defense will be insufficient to justify a Franks hearing. For example, in People v. Box (1993) 14 Cal.App.4th 177, a search warrant for a methamphetamine lab was obtained based largely upon information from two untested informants. In an effort to obtain a Franks hearing, the defense submitted a transcript of an interview of Informant A and a deposition of Informant B in which both informants denied making the statements attributed to them in the search warrant affidavit. The trial court refused to grant a Franks hearing and the Court of Appeal agreed. As to Informant A the Court of Appeal noted that his statement was not under oath and Informant A did not attend the court hearing so that his statement “did not constitute a reliable showing of intentional or reckless falsehood on the part of law enforcement concerning statements attributed to [Informant A] in the warrant affidavit.” (Box, at page 184.) As to Informant B, the Court of Appeal noted that although his deposition was under oath and he was available for cross examination in the trial court, his statement did not undermine the reliability of the affiant officer’s statements of what Informant B told him. The Court said, “In the present case . . . the high level of external corroboration of [Informant B’s] statements in the search warrant affidavit, and the complete absence of motivation for the police to choose such an unreliable individual if they were fabricating an informer, lead us to conclude that [Informant B’s] deposition testimony did not constitute a sufficient showing of deliberate or reckless police misconduct to require an evidentiary hearing pursuant to Franks.” (Box, at page 186.)
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Failure to make the preliminary showing required by Franks was also found in the case of People v. Madrid (1992) 7 Cal.App.4th 1888, 1898.
5. Details Surrounding Informant’s Criminal Background/Defense Discovery
What about the failure of the officer/affiant to disclose in the affidavit all details about an informant’s criminal background -- is that a “material omission?” The answer is no. The California Supreme Court has stated that the details of an informant’s criminal past need not be set forth if the affidavit makes it clear that the source of the information is not a “citizen-informant” but a garden-variety police tipster. Only if the affiant knows of specific facts which bear adversely on the informant’s probable accuracy in the particular case must those facts be disclosed. (See People v. Kurland 28 Cal.3d 376 at pp. 394-95.) Or, as stated in People v. Webb (1993) 6 Cal.4th 494, 522, “in short, we deem it unrealistic to require that a warrant affidavit include an informant’s detailed drug and psychiatric history, or every past act that can be considered unlawful or dishonest.” Another case holding that “predictable details of the informer’s criminal past” are not material is People v. Crabb (1987) 191 Cal.App.3d 390, 395. See also People v. Lopez (1985) 173 Cal.App.3d 125, 134, which held that failure to disclose the informant had been told of possible dismissal of the charges against him if he cooperated was not a material omission. People v. Helmquist (1984) 161 Cal.App.3d 609, 618, holds the informant’s character as a drug user was not something the affiant need include in the affidavit.
People v. Crabb, cited above, is also important in that it disallowed a discovery motion of police informant records made by the defense in hopes of finding some evidence to discredit the affidavit. Crabb held this to be merely a random search for evidence and reversed the trial court’s granting of this discovery motion. People v. Wilson similarly states that, “A fishing expedition will not be entertained.” (People v. Wilson (1986) 182 Cal.App.3d 742 at page 750.) Both Crabb and Wilson hold explicitly that Franks v. Delaware is now the law in California.
6. Summary of Traversal Procedure
Before a traversal hearing can take place, the defendant must do the following:
a. Make a 1538.5 motion.
b. Establish standing to contest the search.
c. Point to specific portions of the affidavit which contain false information, or demonstrate with specificity what information it is claimed was omitted.
d. Allege that the misstatements or omissions were made by the officer/affiant with the intent to deceive, or were made recklessly (i.e.,
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with utter disregard for their truth). Allegations of negligence, or allegations failing to refer to the state of mind of the affiant, are insufficient.
e. Demonstrate that the alleged misstatements or omissions were material. Materiality in this context means that an affidavit with the lies taken out or omissions added would be lacking sufficient probable cause.
f. Submit affidavits or other competent evidence demonstrating the probable truth of the defense allegations, or satisfactorily explain the absence of such affidavits.
Only after completing the six steps above can the defendant actually present evidence and submit argument traversing the warrant. How likely it is such a motion will be successful? People v. Wilson (1986) 182 Cal.App.3d 742, 750, expressed this as follows:
[T]he message delivered by the highest judicial authority is plain. The discharge, unpunished, of guilty defendants exacts an enormous price from society. Consequently, the sanction of suppressing relevant evidence should be reserved for cases of the most serious misconduct committed by agents of the commonwealth. With specific reference to facially sufficient warrants issued by neutral magistrates, it is a rare day indeed when they can be successfully challenged. One who ventures upon that effort better have his facts and figures, and they should be compelling. A fishing expedition will not be entertained.
I. Illegally Obtained Information in Affidavit
Is a search warrant invalid if information which was illegally obtained is included in the supporting affidavit? The answer, usually, is no. If the defendant has no standing to object to the unlawfully obtained information contained in the search warrant affidavit, then that information remains in the affidavit and the validity of the warrant is unaffected by the manner in which it was obtained. See People v. Madrid (1992) 7 Cal.App.4th 1888, 1896, which states “a defendant may not challenge the legality of a search warrant on the ground that the information establishing probable cause for the warrant was the tainted fruit of the illegal search of a third party.”
Statements taken in violation of Miranda were held to be properly considered in an affidavit in support of a search warrant in the case of People v. Brewer (2000) 81 Cal.App.4th 442, 451-459. In that case, a defendant who had been arrested but not admonished of his Miranda rights made incriminating statements that he had 5 pounds of marijuana at his house in response to questions asked by sheriff’s deputies. The Court of Appeal held that these statements--although not in compliance with Miranda--could nevertheless be used in the Statement of Probable Cause in support of the Search Warrant. In particular, the Court held that so long as statements taken in violation of Miranda were not coerced, they may be used to support the issuance of the search warrant even though the defendant was neither advised of nor waived his Miranda rights.
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If illegally obtained information is included in the search warrant affidavit and the defendant does have standing to object to it or it is subject to suppression on the grounds it was involuntary -- or on some other basis -- the remedy is to excise the illegal information and retest the affidavit to see if the remaining information constitutes probable cause for issuance of the warrant. This was the procedure employed by the United States Supreme Court in United States v. Karo (1984) 468 U.S. 705. In this case, federal agents obtained a search warrant for a residence based in part on illegally obtained information from the warrantless monitoring of a beeper inside the residence. Citing Franks v. Delaware (1978) 438 U.S. 154, 172, the court stated that “... if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid.” (468 U.S. at page 719.) The Court then reviewed the warrant affidavit and concluded as follows:
Under these circumstances, it is clear that the warrant affidavit, after striking the facts about monitoring the beeper while it was in the Taos residence, contained sufficient untainted information to furnish probable cause for the issuance of the search warrant. The evidence seized in the house should not have been suppressed with respect to any of the respondents. (468 U.S. at page 721.)
Other cases in which a search warrant was held to be valid after tainted information was struck from the affidavit include People v. Weiss (1999) 20 Cal.4th 1073, 1081-1082, and People v. Murtha (1993) 14 Cal.App.4th 1112, 1121-1122. But see also People v. Machupa (1994) 7 Cal.4th 614 which held that a search warrant was invalid where there was insufficient probable cause remaining after excising information obtained from illegal searches. People v. Machupa also held that the “good faith exception” did not sanitize a later obtained search warrant based on a prior illegal search.
J. Good Faith Exception
The United States Supreme Court cases of United States v. Leon (1984) 468 U.S. 897 and Massachusetts v. Sheppard (1984) 468 U.S. 981 hold that evidence seized pursuant to a search warrant will not be suppressed even if the warrant was defective so long as officers acted in reasonable and objective good faith in relying upon the warrant and in serving it. This is known as the “good faith exception” to the exclusionary rule.
In both of these cases, officers obtained a search warrant and searched according to the terms of the warrant. In later court proceedings it was determined that the warrants were invalid -one (Leon) because probable cause was insufficient and the other (Sheppard) because of a defect in the forms used. Nevertheless, the United States Supreme Court held that the evidence recovered would not be suppressed. The court noted that the searching officers reasonably and in good faith believed the warrants to be valid and acted within the scope of the terms of the warrants. The court reasoned that no purpose would be served by applying the exclusionary rule where the officers acted in good faith upon search warrants issued by neutral magistrates and held that the fruits of such searches should not be suppressed.
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The Supreme Court further held that when an officer acts upon a search warrant, good faith will normally be presumed (Leon, 468 U.S. at page 922), and that good faith can be rebutted only if it can be shown that the affiant misled the magistrate in obtaining the warrant, or the magistrate wholly abandoned his neutral judicial role in signing the warrant, or that the warrant was based on an affidavit so totally lacking in probable cause or facially deficient that no reasonable officer could have thought it valid. (See Leon at page 923.)
The California appellate courts have held Leon and Sheppard to be applicable to California and have held evidence seized pursuant to invalid search warrants admissible so long as the officers acted in reasonable good faith in obtaining and serving the warrant. (See, for example, People v. Hochanadel (2009) 176 Cal.App.4th 997, 1017; People v. Pressey (2002) 102 Cal.App.4th 1178, 1191; People v. Lim (2000) 85 Cal.App.4th 1289; Bay v. Superior Court (1992) 7 Cal.App.4th 1022, 1031; People v. Camarella (1991) 54 Cal.3d 592; People v. Rodriguez-Fernandez (1991) 235 Cal.App.3d 543; People v. Fernandez (1989) 212 Cal.App.3d 984, 990; Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453; People v. Dantzler (1988) 206 Cal.App.3d 289; People v. Lopez (1985) 173 Cal.App.3d 125, 142; People v. MacAvoy (1984) 162 Cal.App.3d 746, 764; and People v. Helmquist (1984) 161 Cal.App.3d 609, 616.) In People v. Camarella (1991) 54 Cal.3d 592, the California Supreme Court in interpreting Leon held that evidence seized pursuant to a search warrant lacking probable cause will not be excluded unless “a well- trained officer should reasonably have known that the affidavit failed to establish probable cause. . . .” (Camarella at page 596.) (See also People v. Maestas (1988) 204 Cal.App.3d 1208.)
In People v. Bell (1996) 45 Cal.App.4th 1030, the affiant failed to include in the affidavit information linking the residence to be searched to the suspect. The Court of Appeal held the good faith exception to be applicable. It noted: “While linking the Bells to the location to be searched is obviously not a mere technicality, it is, in most cases of this nature, a routine matter. We note that the most obvious and routine things are those easiest to forget and their absence least noticeable. The affidavit was complete in every other respect. We simply cannot say, given the nature of the omission made, that the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” (Bell at page 1056.)
In People v. Amador (2000) 24 Cal.4th 387, the Supreme Court held that the good faith exception served to validate a search warrant where the warrant listed the address to be searched as 10817 Leland, a two-story house, whereas the premises searched was actually 10811 Leland, a one-story house.
Some cases have held that the good faith exception did not apply, where the affidavit was so lacking in probable cause that it would be unreasonable for an officer to believe probable cause existed. (See, for example, People v. Hirata (2009) 175 Cal.App.4th 1499; People v. Hulland (2003) 110 Cal.App.4th 1646 and People v. Gotfried (2003) 107 Cal.App.4th 254.)
K. Sealed Affidavits Pursuant to People v. Hobbs
In People v. Hobbs (1994) 7 Cal.4th 948, the California Supreme Court held that all or part of the information in a search warrant affidavit furnished by an informant may be sealed to protect the informant’s identity, where the informant’s only relevance is supplying probable cause. The
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Court recognized that, due to the sealing of any portion or all of a search warrant affidavit, a defendant cannot reasonably be expected to make the preliminary showing required under People v. Luttenberger (1990) 50 Cal.3d 1, to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant). The Court set forth certain procedures to be followed in order to strike a fair balance between the people’s right to assert the informant’s privilege and the defendant’s discovery rights, summarized as follows:
• On a properly noticed motion to quash or traverse, the court must conduct an in-camera hearing under Evidence Code section 915 (b) and People v. Luttenberger (1990) 50 Cal.3d 1. (See People v. Galland (2004) 116 Cal.App.4th 489 and People v. Martinez (2005) 132 Cal.App.4th 233.) At the hearing, the court must first decide whether sufficient grounds exist to maintain confidentiality of the informant’s identity, and then whether it is necessary to seal all or a major part of the affidavit for that purpose. (Hobbs, supra, at page 972.)
• The prosecutor may attend the hearing, but defendant and defense counsel may not unless the prosecutor agrees. Defense counsel should be allowed to submit written questions for the trial judge to ask any witness called to testify at the hearing. (Hobbs, supra, at page 973.)
• The court must take it upon itself to examine the affidavit for inconsistencies and insufficiencies, and inform the prosecution of materials and witnesses it requires, e.g. police reports and other information germane to the informant’s reliability. (Hobbs, supra, at page 973.)
• The court may call and question the affiant, the informant, or anyone else whose testimony it deems necessary for a ruling. If the informant is called, precautions must be taken to preserve the confidentiality of his or her identity. To do that, the hearing may be held some place other than the courthouse. The hearing may be tape recorded or videotaped. (Hobbs, supra, at page 973.)
• If the affidavit is found to have been properly sealed and defendant moves to traverse, the court should decide whether defendant’s general allegations of material misrepresentations or omissions are supported. If the court finds that they are not, it should simply report that conclusion to the defendant and enter an order denying the motion. (Hobbs, supra, at page 973.)
• If the court determines there is a reasonable probability that defendant would prevail on a motion to traverse, the prosecutor must be allowed the option of consenting to disclosure of the sealed materials (in which case the motion to traverse goes forward), or suffer an adverse order on the motion. A similar procedure should be followed where the motion is to quash rather than traverse. (Hobbs, supra, at page 974.)
• A sealed transcript of the in-camera proceedings and the sealed materials should be retained, along with public portions of the search warrant application, for possible appellate review. (Hobbs, supra, at page 975.)
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People v. Heslington (2011) 195 Cal.App.4th 947 is an instructive case because the appellate court summarized the procedures to be followed under the Hobbs decision when a defendant makes a motion to quash and/or traverse a search warrant which is based on a sealed affidavit. In the Heslington case the appellate court found that the defendant had failed to establish a reasonable probability of prevailing on a motion to quash a search warrant that had been partially sealed where a majority of the sealed portion had been unsealed and disclosed to the defendant, and none of the remaining confidential information was significant to the defendant’s cause.
L. Severability of Search Warrant
In many instances, search warrants are issued for the search of more than one place or location and for the recovery of more than one item. On some occasions, a reviewing court will rule that there was insufficient probable cause to justify the search for one of the articles sought or locations listed. Such a ruling does not invalidate the remaining portions of the warrant for which probable cause exists. (Aday v. Superior Court (1961) 55 Cal.2d 789, 797; People v. Joubert (1983) 140 Cal.App.3d 946; People v. Bradford (1997) 15 Cal.4th 1229, 1292-3.)
M. Penal Code Section 871.5 Review of Warrants Declared Invalid
If a search warrant is declared invalid as a matter of law by a magistrate at a preliminary hearing, and if as a result of that ruling evidence is suppressed and the entire case or a portion thereof is dismissed, the prosecution can obtain an expeditious review of the magistrate’s ruling on the warrant by noticing a motion for review in the superior court pursuant to the provisions of Penal Code section 871.5.
In the superior court, the judge will review the transcript of the preliminary hearing and the search warrant itself. If the superior court judge rules that the magistrate was wrong and that as a matter of law the search was valid, the superior court judge can then order the case returned to the preliminary hearing magistrate for a resumption of proceedings at the point where the case or portion thereof was dismissed and with the search warrant now deemed valid. (Penal Code sections 871.5 and 1538.5, subd. (d), (e), (j) and (m); Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 999; People v. Salzman (1982) 131 Cal.App.3d 676.)
Use of Penal Code section 871.5 procedures for review of a suppressed search warrant may offer procedural and practical advantages over re-filing a case or a 1538.5 (j) motion (a special hearing by the People to relitigate an adverse suppression ruling at the preliminary hearing when the defendant has been held to answer).
N. “Technical” Mistakes -- Clerical Errors
There have been several cases in which the courts have held that certain obviously clerical errors or “technical” mistakes did not invalidate the warrant.
In People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76, and in Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, the judges neglected to sign the warrant and signed the affidavit only. The warrants were held valid despite the omission.
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In People v. Amador (2000) 24 Cal.4th 387, the warrant described the location to be searched as a “two-story, single-family residence, located at 10817 Leland . . . .” In fact, the actual residence searched was a one-story, single-family residence, located at 10811 Leland. The California Supreme Court upheld the search, in part because the officer who executed the search warrant knew the place to be searched of his own personal knowledge.
In Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, the address of the premises to be searched was listed as “1360 Laurel Avenue” instead of “1860 Laurel Avenue” which was the correct address of the premises to be searched. The search was ruled valid, however, since Laurel Avenue was only one block long and all premises were numbered in the 1800’s. Similarly, in People v. Lovett (1978) 82 Cal.App.3d 527, the court held that a misdescription of premises as “1227” instead of “1227-1/2” did not affect any substantial rights of the defendant, and the warrant was declared valid. See also People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218 where an incorrect lot number and geographical description was deemed immaterial.
In People v. Wachter (1976) 58 Cal.App.3d 911, the affiant neglected to put the date of his observation of growing marijuana in the affidavit. The warrant was nevertheless held valid since it appeared the affiant was speaking about something he had just observed, i.e., the marijuana “is now” growing, etc.
In People v. Egan (1981) 141 Cal.App.3d 798, 803, the misplacement of the magistrate’s signature in relation to a nighttime service request was held not to invalidate the magistrate’s approval of a nighttime search. In People v. Alvarez (1989) 209 Cal.App.3d 660, suppression of the evidence was not warranted even through the search warrant omitted a description of the items to be seized.
In People v. Curry (1985) 165 Cal.App.3d 349, the warrant was held to be valid even though a page of the affidavit was missing. In People v. Jordan (1984) 155 Cal.App.3d 769, the warrant was held valid even though the “attachment No._____” was left blank. And in People v. Meza (1984) 162 Cal.App.3d 25, it was held that the seven months delay in certifying the transcript of an oral affidavit did not invalidate the search warrant.
In People v. Bell (1996) 45 Cal.App.4th 1030, the affiant failed to include information in the affidavit linking the residence to be searched to the suspect. The Court of Appeal nevertheless upheld the search on good faith grounds stating that, “While linking the Bells to the location to be searched is obviously not a mere technicality, it is in most cases of this nature, a routine matter.” (45 Cal.App.4th, at page 1056.)
In People v Stipo (2011) 195 Cal.App.4th 664, the defense claimed that there was no incorporation clause of a report that was attached to the affidavit. In upholding the search warrant, the Court of Appeal stated that “The absence of an incorporation clause is not a fatal defect. Incorporation by reference is a technical phrase, and police officers are not expected to use a lawyer’s terminology.” (195 Cal.App.4th, at page 670).
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If a technical or clerical error is sufficiently serious to invalidate a search warrant, the evidence seized should still not be suppressed if the serving officer can show “good faith” as discussed in J., above.
O. Prior Illegal Entry
A prior illegal entry does not necessarily invalidate a subsequently issued and served search warrant. For a further discussion of this, please see Chapter X, section B, Occupying Premises Before Search.
P. Court Proceedings Involving Claims of Privilege
In People v. Superior Court (Laff) (2001) 25 Cal.4th 703, the California Supreme Court discussed certain procedures to be followed when a claim of privilege is raised regarding the seizure of documents pursuant to a search warrant. In this case, numerous documents were seized pursuant to a search warrant from the offices of two attorneys. Since the attorneys were suspected of criminal conduct, a special master did not accompany the officers during the service of the warrant. Nevertheless, the attorneys requested a hearing to determine if any of the seized documents were privileged. The trial court appointed a special master to assist in this determination, at the expense of the parties.
On appeal, the Court held the following:
“As we shall explain, we have reached the following conclusions with respect to the numerous issues presented. First, we conclude that the superior court has an obligation to determine claims of privilege regarding materials seized from the attorneys, whether or not the attorneys are suspected of criminal conduct, and that the court may properly conduct a hearing to resolve such claims. Second, although section 639 does not authorize a compulsory reference in a proceeding to determine whether documents seized from a criminal suspect are privileged (because such a proceeding is not the type of “special proceeding” to which section 639 applies), the superior court nonetheless possesses inherent authority to appoint a special master to assist it in examining such documents and ruling upon the claims of privilege. Third and finally, however, the superior court lacks either statutory or inherent power to require the parties to bear the cost of a special master’s services in this context. Thus, the superior court erred in conditioning its willingness to determine the privilege claims asserted by the attorneys upon the People’s agreement to pay for the services of a special master.” (People v. Superior Court (Laff) 25 Cal.4th at pages 709-710.)
Penal Code section 1524, subd. (i) provides that “Nothing in this section is intended to limit an attorney’s ability to request an in camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.”
In Gordon v. Superior Court (1997) 55 Cal.App.4th 1546 the Court of Appeal held that once a claim of privilege is raised, the documents in question must remain sealed until a hearing is held to determine whether the sealed documents contain privileged materials or infringe upon the
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privacy rights of targeted third parties. The attorney making the claim of privilege and the party serving the search warrant must be advised of the date, time, and place of the hearing as required by Penal Code section 1524, subd. (c).
In People v. Navarro (2006) 138 Cal.App.4th 146, evidence was seized from the defendants’ business and homes pursuant to a search warrant. The defendants moved to disclose the identity of the informant whose information led to the issuance of the warrant. Defendants believed the informant was their sister, who had also acted as their lawyer. They argued that their Sixth Amendment right to counsel was violated by the use of privileged information from their lawyer to obtain the search warrant. The Court of Appeal upheld the trial court’s denial of the defendant’s motions, stating that in camera hearings was the proper procedure to decide the issues of informant confidentiality and obtaining a search warrant based on privileged lawyer- client information.
Q. Loss of Search Warrant Affidavit
A defendant in a criminal case is entitled to an appellate record adequate to permit meaningful appellate review. The absence of an affidavit to support an executed search warrant does not preclude meaningful appellate review or invalidate the warrant when other evidence is presented to establish the fact that an affidavit was presented, as well as its contents.
In People v. Galland (2008) 45 Cal.4th 354, the original sealed portion of a search warrant affidavit was lost or destroyed. The defendant contended that the missing original sealed search warrant affidavit rendered meaningful appellate review of the warrant impossible requiring suppression of the evidence seized under the warrant. In Galland, the California Supreme Court stated that “(T)he absence of an affidavit to support an executed search warrant, however, does not invalidate the warrant when other evidence may be presented to establish the fact that an affidavit was presented, as well as its contents.” (Galland at page 370.)
R. Summary of Procedure -- Practice Tips
1. Penal Code Section 1538.5 Motions
A 1538.5 motion is the sole means of challenging a search. In misdemeanor cases, the 1538.5 hearing precedes the trial. In felony matters, the 1538.5 hearing may be conducted as part of the preliminary hearing but only as to physical evidence the prosecution seeks to introduce at that hearing and only if the defendant provides five days notice and files a written motion accompanied by a memorandum of points and authorities as required by Penal Code section 1538.5 subd. (f)(2). Otherwise, the 1538.5 motion may be conducted only at a special pretrial hearing in superior court. There is no such thing as a pre-preliminary hearing 1538.5 motion. A defendant seeking to suppress evidence must specify the precise grounds for suppression of the evidence in question. (People v. Williams (1999) 20 Cal.4th 119, at pages 130-131, 136.)
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Although the defendant must file a written motion, the People are not required to file a written response to the defendant’s motion. (People v. Britton (2001) 91 Cal.App.4th 1112.)
A defendant is entitled to only one full hearing on his motion to suppress. If the defendant makes the motion at the preliminary hearing, the superior court merely reviews the transcript of that hearing, and the magistrate’s factual findings are binding on the superior court. The defendant is entitled to a de novo hearing in superior court as to evidence which could not reasonably have been presented at the preliminary hearing.
If the defendant’s 1538.5 motion is granted at the preliminary hearing, the prosecution may seek review of the matter by way of a 1538.5(j) motion or Penal Code section 871.5 motion in superior court. If the case was dismissed, the prosecution may also simply refile the case and the magistrate’s ruling on the original filing is not binding in the refiled case. (See 1538.5, subd. (j); and People v. Murphy (1974) 42 Cal.App.3d 81, 85.)
Please note that Penal Code section 1538.5 limits the prosecution to two hearings on 1538.5 motions. In other words, if a defendant’s 1538.5 motion is granted at the preliminary hearing, the prosecution can refile the case and try to prevail at a second 1538.5 motion, or seek a de novo hearing in the superior court. But if the prosecution loses again, the prosecution can no longer simply refile the case and try the case again, nor can the prosecution seek another de novo hearing in the superior court, unless the prosecution can present new evidence which was not reasonably known to the prosecution at the time of the second hearing. See Penal Code section 1538.5, subd. (p), which also requires that any re-litigation of a 1538.5 motion “shall be heard by the same judge who granted the motion at the first hearing if the judge is available.”
A 1538.5 motion in superior court may be appealed (by writ) by either party or may be renewed in the superior court if new evidence is discovered. (See 1538.5 subdivisions (j) and (p); People v. Lopez (1993) 12 Cal.App.4th 1732, 1736; People v. Young (1976) 62 Cal.App.3d 49; and People v. Nelson (1981) 126 Cal.App.3d 978.)
It is improper for the court to hear a 1538.5 motion during trial. All such motions must precede the actual trial of a case. They are strictly pretrial motions. (People v. Jackson (1992) 7 Cal.App.4th 1367, 1370, fn. 3.)
The provisions of Penal Code sections 1538.5 and 871.5 should be studied carefully to ensure that proper and appropriate procedures are followed and that remedies for unfavorable rulings are protected. For example, if evidence is suppressed at a preliminary hearing, but the defendant is held to answer on all counts, a 1538.5 (j) motion must be noticed by the People within 15 days or else the suppression of evidence will be binding in the superior court. If all charges are dismissed at a preliminary hearing as a result of suppression of evidence, a Penal Code section 871.5 motion in superior court, or refiling, are the available remedies. The 871.5 motion must be noticed within 15 days of the dismissal or else it cannot be made. (People v. Dethloff (1992) 9 Cal.App.4th 620.)
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It is also important to ensure that if a case is to be dismissed prior to trial as a result of defendant’s successful motion to suppress evidence, that such dismissal be upon the court’s own motion or the defendant’s motion and not upon the motion of the prosecutor. Otherwise, appeal rights will be lost. (See Penal Code section 1238, subd. (a) (7); 1538.5, subd. (o); and People v. Caserta (1971) 14 Cal.App.3d 484.)
2. Standing
A defendant must establish standing before he or she can assert evidence was illegally seized. (See D., above.) If standing cannot be shown, then the legality of the search is irrelevant and the evidence will not be suppressed.
3. Quash and Traverse Motions
A motion to quash a search warrant is limited to the four corners of the warrant and affidavit as written, except as testimony may be necessary to explain the language therein. (See G., above.)
A motion to traverse is one which attempts to controvert the accuracy or completeness of the affidavit. It requires a prima facie showing of inaccuracies or material omissions before it can be brought. Further, a defendant cannot simply call the affiant as a witness in hopes of establishing inaccuracies or omissions without first making the required prima facie showing. (See H., above.)
4. Standard of Review
The “two prong” test has been replaced by the “totality of circumstances” test. (See B., above.)
5. Good Faith Exception
Even if a search warrant is shown to be invalid, the evidence seized pursuant to it shall not be suppressed so long as the officers acted in good faith. Further, good faith is presumed -- though it may be rebutted. (See J., above.)
S. Proceedings for Return of Property of Non-Defendant
When property is seized pursuant to a search warrant, the property must be retained in the custody of the officer, subject to order of the court in which the warrant is returnable or the offense relating to the property is triable. (Penal Code section 1536; People v. Icenogle (1985) 164 Cal.App.3d 620, 623.) At the end of Chapter X is a form which can be used for the release of property seized pursuant to a search warrant. This form may be used to return stolen property to its rightful owner.
In some instances, such as a complex fraud investigation, evidence will be seized pursuant to a search warrant and retained by the police, but no criminal action is filed. Even if there is no
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criminal action pending, an owner may move for the return of the seized property. Such a motion may be made under Penal Code section 1536, as well as the Court’s inherent power to control and prevent the abuse of its process. (People v. Superior Court (Loas et. al) (1972) 28 Cal.App.3d 600, 607.) A motion to return property can also be made pursuant to Penal Code sections 1539 and 1540; this is a special proceeding which is distinct from any underlying litigation. (People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal.App.3d 648, 650.)
If the property is stolen or embezzled, the disposition of the property is governed by Penal Code sections 1407 to 1411. In summary, these sections state that the police officer shall hold the property, and the magistrate shall order the property delivered to the owner upon satisfactory proof of ownership. If there are no charges pending and no criminal conviction has been obtained, then the People must prove by a preponderance of the evidence that the seized property was stolen or embezzled. (Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547- 1550.)
An excellent overview of the law pertaining to the release of the property seized pursuant to a search warrant is located in Ensoniq Corp. v. Superior Court, supra, at pages 1546 to 1551.
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Appendix A
Combined Search Warrant & Affidavit Form (With Footnotes)
Appendix A – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (1) (AFFIDAVIT) ______(2) swears under oath that the facts expressed [Name(s) of Affiant(s)] (3) by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
, HOBBS SEALING REQUESTED: YES NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES NO
(SEARCH WARRANT) (4) (5) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by "x"(s) in that: ______it was stolen or embezzled ______it was used as the means of committing a felony ______it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, ______(6) it tends to show that a felony has been committed or that a particular person has committed a felony, ______it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring ______there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
(7)
FOR THE FOLLOWING PROPERTY/PERSON:
(8)
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it was based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this ______day of ______, 20_____, at ______AM/PM. (10) (9) , HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES NO Judge of the Superior Court of the State of California, County of Los Angeles. (11) (12) SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix A – Page 2
FOOTNOTES TO APPENDIX A
1. This is the combined search warrant and affidavit form. It is preferable to the older forms involving a separate search warrant and separate affidavit.
2. There may be more than one affiant on a search warrant. (See Skelton v. Superior Court (1969) 1 Cal.3d 144 and Penal Code § 1527.) Further, the affiants need not be police officers. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1055.)
3. The incorporation of the written affidavit allows reference to the affidavit to supplement inadequate or ambiguous residence and property descriptions on the face of the search warrant. (See People v. MacAvoy (1984) 162 Cal.App.3d 745.)
4. The language of the search warrant is derived from Penal Code section 1529.
5. Penal Code section 1530 states that a search warrant may be served by any of the officers mentioned in its directions. The serving officer need not be the affiant. Civilian witnesses can assist serving officers, such as a victim pointing out stolen items. (See People v. Superior Court (Meyers) (1979) 25 Cal.3d 67.)
6. The search warrant must indicate which of these grounds is being relied upon for the issuance of the warrant. These grounds are statutory pursuant to Penal Code section 1524 and cannot be modified.
7. The search warrant must describe with "reasonable particularity" the place, vehicles, and persons to be searched (Penal Code section 1529). The general rule is that descriptions should be of sufficient particularity so that if an officer with no knowledge of the case were to serve the warrant, he would have no difficulty in locating and identifying the place, vehicle, or person to be searched. (People v. Grossman (1971) 19 Cal.App.3d 8, 11.)
8. The property and/or person to be seized must also be described with "reasonable particularity" (Penal Code § 1529).
9. Penal Code section 808 designates as magistrates judges of the superior courts, courts of appeal, and Supreme Court. Any of these judges is empowered to act as a magistrate and issue a search warrant. A commissioner, a judge pro tem, and a referee are not magistrates.
10. The Hobbs sealing request is based on People v. Hobbs (1994) 7 Cal.4th 948, which holds that all or part of a search warrant affidavit may be sealed to protect an informant's identity.
11. Good cause for a night search should be shown in the affidavit, as set forth in Chapter V.
12. A magistrate can issue a search warrant for any location within the county in which he or she sits. (People v. Emanuel (1978) 87 Cal.App.3d 205; People v. Smead (1985) 175 Cal.App.3d 1101.) A magistrate can issue a search warrant for a location outside his or her county but within the State of California so long as it relates to an offense that can be prosecuted in the magistrate's county. (People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698, 707; and People v. Easley (1983) 34 Cal.3d 858, 869-70.)
Appendix A – Page 3
Appendix B
Sample Search Warrant & Affidavit Fruits, Evidence & Instrumentalities of a Crime
- Robbery -
Appendix B – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Brian Stevens swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Brian Stevens , HOBBS SEALING REQUESTED: YES ; NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES ; NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Brian Stevens [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: X it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and incorporated description page.
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 5th day of February , 20xx , at 7:30 AM/PM.
S. L. Cooley HOBBS SEALING APPROVED: YES ; NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES ; NO Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix B – Page 2
YOU ARE THEREFORE COMMANDED TO SEARCH:
LOCATION: The premises at 13609 Turkat Avenue, Van Nuys, CA 91401, further
described as a single story, single family residence of beige stucco with dark brown trim and all
rooms, attics, basements, and other containers and parts within, and the surrounding grounds and
garages, storage rooms, containers, and outbuildings of any kind located there.
VEHICLE: A 20xx Ford Fairlane bearing California license plate number 4VLM334.
PERSON: The person of Patrick Y. Myers, further described as a male Caucasian, 30 years of age, 5 feet 11 inches tall, 180 pounds, brown hair and brown eyes.
FOR THE FOLLOWING PROPERTY/PERSON
A blue steel revolver, ammunition, gun cleaning materials, containers or receipts for the purchase of the above items; a #8 brown paper bag; approximately $250 in US currency, a $20 bill marked with “Y.T.” on the upper right corner of the face of the bill bearing serial number
LO7711908A; a man’s dark blue slacks, a man’s blue striped shirt, blue running shoes with an “N” on the sides; and articles of personal property tending to establish the identity of person(s) in control of premises, vehicles, storage areas, and containers being searched, including computers and the electronic files contained within, rent receipts, utility receipts, addressed envelopes, identification cards, and keys.
Appendix B – Page 3
My name is Brian Stevens. I have been a police officer for the City of Los Angeles for
the past eight years. My serial number is 32367. I am currently assigned to Van Nuys Detective
Division and have been so assigned for the past seven years. I have arrested dozens of persons
for the crime of robbery and have received training and attended classes at the Police Academy
and at Van Nuys Division regarding robbery. I am thoroughly familiar with the manner in which
robberies are committed and the manner in which the stolen property is carried away, secreted
and disposed of. [Fn. 1]
On February 25, 20xx at 8:00 AM, I received and read an official LAPD robbery report,
DR# 00-123456, a copy of which is attached and incorporated herein as Exhibit #1. [Fn. 2] Upon reading the report, I formed the opinion that the robber of the Yellow Tail Liquor store might be an ex-convict named Pat Myers. I have personal knowledge that Mr. Myers has served time in prison for robbery, lives in the area of the Yellow Tail Liquor store, and matches the description of the robber given by the victim and witness. In particular, Mr. Myers presents a “clean cut” appearance.
From department records, I obtained a booking photo of Mr. Myers taken at a prior robbery arrest in 20xx. I placed this photo and the photo of five similar appearing male
Caucasians in a standard 6 person LAPD photo lineup card.
At approximately 10:00 AM, I went to the Yellow Tail Liquor store and met with victim
Ferreira and witness Turner. They both verified the information in the crime report (Exhibit #1).
I then read the following admonition to both Ferreira and Turner:
“In a moment, I am going to show you a group of photographs. This
group of photographs may or may not contain a picture of the person who
committed the crime in which you are a witness.
Appendix B – Page 4
Keep in mind that hair styles, beards, and moustaches are easily changed.
Also, photographs may not always depict the true complexion of a person; it may
be lighter or darker than shown in the photo. Pay no attention to any markings
or numbers that may appear on the photos or any other differences in the type or
style of the photographs.
When you have looked at all the photos, please tell me whether or not you
see the person. Please do not tell other witnesses that you have or have not
picked anyone out. Thank you.”
I then showed the photo card to Ferreira and Turner individually. Neither was in the presence of the other when the photo card was shown. Each separately picked out the photo of
Pat Myers as the man who committed the robbery. Ferreira said, “That’s the man.” and Turner said, “That’s him. I’m sure of it.”
I then returned to the station and ran Pat Myers through the departmental computer hookup with the DMV. The printout showed a current California driver license for Patrick Y.
Myers, M/C, DOB 6/11/xxxx, 5’11”, 180 lbs., brown hair and eyes, with an address of 13609
Turkat Avenue, Van Nuys, 91401. DMV also showed Pat Myers to be the registered owner of a
20xx Ford Fairlane, California license number 4VLM334, at the same address. [Fn. 3] I noted that the description of Myers by the DMV matches the description and DOB in the department records for Myers where I obtained the old booking photo. [Fn. 4]
On 2/25/20xx, at approximately 12 noon, I drove to the location of 13609 Turkat Avenue,
Van Nuys, and observed it to be a single family residence as described above on the Search
Warrant and Affidavit form. [Fn. 5] I also noted the described 20xx Ford Fairlane parked in the
Appendix B – Page 5
driveway of that residence. This leads me to believe that Mr. Myers is still residing there. I also noted that this address is only two blocks from the yellow Tail Liquor store.
Based upon the foregoing and my experience and expertise, it is my opinion that Pat
Myers committed the robbery of the Yellow Tail Liquor store on February 24, 20xx and fled on foot to his residence. It is also my opinion that the fruits, evidence, and instrumentalities of this robbery, as described above as the items to be seized on the Search Warrant and Affidavit form, are now located and will be found at the premises to be searched, on the person of Pat Myers, and within his vehicle since robbers often use their vehicles to store such items even though the vehicle itself may not have been used in the actual crime. [Fn. 6]
Appendix B – Page 6
FOOTNOTES TO APPENDIX B
1. Identity and experience of affiant now established.
2. Everything in this report is now part of the affidavit just as if the victim and witness therein had reported it to the affiant directly and the affiant had written it in the affidavit. Use of crime reports is a big time saver in preparing search warrants.
3. This “connects up” the suspect to the location and vehicle to be searched and also establishes how the affiant obtained a detailed physical description of the suspect.
4. This establishes that the Pat Myers the DMV records relate to is the same Pat Myers in the police files.
5. This establishes how the physical description of the suspect’s residence was obtained.
6. Case law holds that once the identity of the perpetrator of a particular felony is established, the residence of that person may be searched for the fruits, evidence, and instrumentalities of that felony. (See Chapter IV, Section I, Sufficiency of information.)
Appendix B – Page 7
Appendix B – Page 8
Appendix C
Sample Search Warrant & Affidavit Fruits, Evidence & Instrumentalities of a Crime
- Burglary -
Appendix C – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Edgar Anderson swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Edgar Anderson , HOBBS SEALING REQUESTED: YES ; NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES ; NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Edgar Anderson [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: X it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and incorporated description page.
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 1st day of March , 20xx , at 4:30 AM/PM.
Pamela Booth HOBBS SEALING APPROVED: YES ; NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES ; NO Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix C – Page 2
YOU ARE THEREFORE COMMANDED TO SEARCH:
LOCATION: The premises at 807 West Beaufort Street, Los Angeles, further described
as a single-story residence with a light green stucco and dark green wood trim exterior, and all
rooms, attics, containers, and other parts therein, and the surrounding grounds and any garages,
storage rooms, containers, and out-buildings of any kind located thereon;
VEHICLE: A 20xx Ford van, dark blue in color, license number SLW102, believed to be parked at the above premises;
PERSON: Jon King, further described as a male Caucasian, DOB 5/01/xxxx, 6’3” tall,
185 pounds, blond hair, blue eyes, believed to be residing at the above premises.
FOR THE FOLLOWING PROPERTY/PERSON:
As listed and described on page 2 of the LAPD Burglary Report, DR 00-15604, attached hereto and incorporated herein as Exhibit No. 1 [Fn. 1], large “Channel Lock” type pliers, a large
screwdriver or pry tool with a blade 3/8” wide, and articles of personal property tending to
establish the identity of persons in control of the premises and vehicles being searched including
computers and the electronic files contained within, rent receipts, utility company receipts,
addressed envelopes and keys.
Appendix C – Page 3
My name is Edgar Anderson. [Fn. 2] I have been a police officer for the Los Angeles
Police Department (LAPD) for the [past eight years and have been assigned as a Burglary
Detective, Wilshire Detective Division, for the past 27 months. My serial number is 91639.
I have investigated hundreds of burglaries and have arrested hundreds of individuals for burglary and related offenses. I have located and recovered property taken in burglaries on
approximately 100 occasions. I have attended classes regarding burglary and related offenses at
the Los Angeles Police Academy and at the Los Angeles Police Department Investigators
School. I have also received informal training from other experienced investigators. I have
interviewed many admitted burglars and have questioned them regarding the manner in which
they commit their crimes and dispose of their loot. I am thoroughly familiar with the manner in
which the crime of burglary is committed within the County of Los Angeles.[Fn. 3]
On March 30, 20xx, at 0900 hours, I received and read an official LAPD Burglary
Report, DR 00-15604. This report is attached and incorporated herein as Exhibit No. 1. [Fn. 4] I
then went to 1444 Kingsley Avenue and personally inspected the burgled premises. I noted the
base of the front door lock to have deep gouges in the metal. I recognized these marks to be
characteristic of the use of a large type of pliers known as “Channel Locks” to twist off the door
lock.[Fn. 5] I also inspected a desk within the premises. A locked drawer had been broken open. I
noted gouges in the wood which appeared to have been made by a large screwdriver or pry tool
with a blade 3/8” wide. I spoke to the burglary victim, Mr. Takamoto, who stated that his wife’s
jewelry and his credit cards and checkbook had been taken from this desk which had been locked
and in good condition before the burglary.
I also spoke to the next door neighbor, Mr. Fugi, who stated that he saw a dark blue van
in the victim’s driveway between 1400 and 1600 hours. He stated the van was only there about
Appendix C – Page 4
10 minutes and was driven by a male Caucasian. Mr. Takamoto stated that he does not know
anyone who owns a blue van.
On March 30, 20xx, at 1600 hours, I was told by fellow Detective Gail Coutts, Serial No.
14093, Wilshire Division, that a “Jon King” was suspected of committing “Channel Lock”
burglaries in the Wilshire Division. [Fn. 6] I obtained a fingerprint exemplar card of Jon King from official LAPD records. These prints were taken at a prior arrest of Jon King in December,
20xx. I obtained that arrest report and noticed that Jon King had been arrested for burglary on
that occasion and that he had been driving a blue van. [Fn. 7] I also noted on that arrest report that the description of Jon King and the blue van are as described above on the Search Warrant and
Affidavit form. Also, the residence address given by Jon King on that occasion was 807 West
Beaufort Street, Los Angeles.
On March 31, 20xx, at 0900 hours, I hand carried the fingerprint exemplar of Jon King to
LAPD Scientific Investigation Division and met with Mr. J. P. Bernardi. Mr. Bernardi stated that he has been employed as a fingerprint examiner for two years and has made thousands of comparisons. Also, he has qualified and testified as a fingerprint expert in various courtrooms in
Los Angeles County in excess of 25 times. Mr. Bernardi compared the fingerprint exemplar of
Jon King with the latent lifts taken by him from the desk at the Takamoto residence on March
29, 20xx. Mr. Bernardi stated that the prints on the exemplar and the latent lifts were made by the same person.
I returned to Wilshire Division at 1000 hours and was informed by Detective Gail Coutts that she had checked earlier with DMV and was told that Jon King was the registered owner of a
20xx Ford van, California license number SLW102. Also, according to DMV, Jon King became registered owner of this van in July 20xx and the address on his vehicle registration is currently
Appendix C – Page 5
807 West Beaufort Street, Los Angeles. I immediately drove by 807 West Beaufort Street and observed it to be as described above on the Search Warrant and Affidavit form. [Fn. 8] I also noted the above described blue van parked in the driveway.
Based upon my training and experience, and the facts contained within this affidavit, I believe that the burglary of the Takamoto residence was committed by Jon King. I also believe that Jon King used “Channel Lock” pliers to break the door lock and a large screwdriver or pry tool with a 3/8” wide blade to pry open the desk and that Jon King took the stolen property to his own residence pending his ultimate disposal of it as this is the practice of almost all burglars. I believe that all or part of the stolen property will still be found in Jon King’s residence, on his person, or within his blue van. Also, I believe that the tools used by Jon King to commit this crime will still be found in his possession, either in his residence, on his person, or in his blue van since it is unusual for a burglar to dispose of his tools following an apparently successful crime. [Fn. 9]
Appendix C – Page 6
FOOTNOTES TO APPENDIX C
1. In cases involving stolen property, very often the crime report will contain an adequate description of the items sought by the search warrant. The property list on the crime report can be referred to rather than rewriting the list of stolen items. Additional items that may not have been included or adequately described in the crime report should be separately listed on the Search Warrant and Affidavit form. Instrumentalities of the crime and “articles of identification” should also be listed in the property to be seized section of the Search Warrant and Affidavit form. (See Chapter III.)
2. This affidavit is written in the first person, i.e., “I saw . . .” rather that the third person, i.e., “Your affiant saw . . . .” Both are perfectly acceptable.
3. The expertise of the affiant is now established. This will give weight to the conclusion he draws from the facts contained in the affidavit.
4. All information contained in the crime report is now part of the affidavit just as if the affiant had personally spoken to the various parties whose statements and observations appear in the report.
5. An experienced detective can give his/her opinion regarding the manner in which the crime was committed after setting forth the factual basis for that opinion.
6. It is not necessary to state how Detective Coutts obtained this information since the warrant is not based upon this information given by her. Her statement is included simply to show why the affiant happened to focus upon Jon King.
7. If this arrest report is available, it could also be attached and incorporated as an exhibit. This can be a time saver in cases in which the report contains a great deal of information which should be included in the affidavit.
8. It is a good practice for the affiant to personally observe the premises and vehicle to be searched in order to ensure accurate description. Also, the affidavit should state how the descriptions were obtained. (See Chapter II.)
9. Even though neither the affiant nor any informant has actually seen the items sought at Jon King’s residence, the cases nevertheless state that a warrant may issue for the suspect’s residence since that is a logical place to look for the fruits, instrumentalities, and evidence of the crime under investigation. (See Chapter IV.)
Appendix C – Page 7
Appendix C – Page 8
CONTINUATION SHEET Los Angeles Police Department PAGE NO. TYPE OF REPORT BOOKING NO. DR. NO. 2 BURGLARY 00-15604
ITEM QUAN. ARTICLE SERIAL NO. BRAND MODEL NO. MISC. DESCRIPTION (E.G., DOLLAR NO. COLOR, SIZE, INSCRIPTIONS, VALUE CALIBER, REVOLVER, ETC.)
PROPERTY TAKEN 1 1 TV-portable AZ16038 Zenith 21B 16” color $300 2 1 Calculator 83719 Hewlett. HP-21 Handheld $100 3 1 Credit Card 560 48 9737 Texaco - H. J. Takamoto 4 1 Credit Card 417 97 861 Shell - H. J. Takamoto 5 1 Checkbook B of A - - H. J. Takamoto 6 1 Ring - - - Gold - red stone $250 7 1 Necklace - - - 48 pearls $1,000 8 1 Pillowcase Cannon - - Floral - red/turquoise #4 9 12 Keys - - - Auto, home, misc. $15 10 1 Toolbox - Craftsman - Automotive tools $100 11 1 Binoculars 17618 Swift 16A 7x35 - Black case $60 12 1 Camera 22806M Nikon D60 Digital - Black case $350 13 1 Lens Unk Nikon - 140 mm, case $100
NARRATIVE:
R secured and left residence at 0730 , returned at 1800 and noticed front door open, interior ransacked, desk broken open, and items missing. W lives next door and stated that at approximately 1400-1600 saw dark blue van in R’s driveway and obs M/C exit van.
Door lock appears to have been twisted off with channel locks. Latent prints notified and several lifts taken from desk by Ms. C Nakaki, #M6018, S.I.D.
CONTINUATION SHEET
Appendix C – Page 9
Appendix D
Sample Search Warrant & Affidavit Reliable Informant - With Hobbs Sealing
- Heroin -
Appendix D – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Jason Scott, Serial No. 22170 swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Jason Scott , HOBBS SEALING REQUESTED: ; YES NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES ; NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Jason Scott [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and incorporated description page.
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 29th day of May , 20xx ,at 2:00 AM/PM.
Ralph W. Partridge HOBBS SEALING APPROVED: ; YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES ; NO Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix D – Page 2
YOU ARE THEREFORE COMMANDED TO SEARCH:
LOCATION: The premises at 21010 Woodlake Drive, Los Angeles, 91401, further described as a single story dwelling house with a brown shingle roof and light green stucco exterior, and all containers, rooms, attics, basements, and other part therein, the surrounding grounds, the attached garage, and any storage rooms, storage areas, and outbuildings of any kind located thereon
PERSON: The person of RICHARD L. COTTON, further described as a male Caucasian, 5’9” tall, 160 pounds, black hair, black eyes, DOB 5/29/xxxx. [Fn. 1]
FOR THE FOLLOWING PROPERTY/PERSON: Heroin and narcotic paraphernalia including hypodermic needles, hypodermic syringes, eye droppers, spoons, cotton, milk sugar, scales and other weighing devices, balloons, condoms, paper bindles, measuring devices, containers of various types commonly associated with the storage and use of heroin, and articles of personal property tending to establish the identity of persons in control of the premises being searched including computers and the electronics files contained within, utility company receipts, rent receipts, addressed envelopes and keys.
Appendix D – Page 3
My name is Jason Scott. I am employed by the Los Angeles Police Department (LAPD)
and have been a police officer for the past eight years. [Fn. 2] For the past five years I have been assigned to the Administrative Narcotics division. I have developed contacts with narcotics users, narcotics sellers, narcotics experts, and narcotics informants, and discussed with them all aspects of the use, sale, packaging and transfer of narcotics and dangerous drugs in the southern
California area. I have participated in several hundred narcotics investigations and have participated in over 1,000 arrests of persons for violations of narcotics laws. I have testified as an expert in the field of narcotics in both preliminary hearings and felony trials in courts in Los
Angeles County on approximately 50 occasions. I have purchased narcotics and dangerous drugs in the capacity of an undercover officer on approximately 25 occasions. [Fn. 3]
I have received information from an informant hereinafter designated in this affidavit as
Informant No. 1. Informant No. 1 told me that a male Caucasian known to Informant No. 1 as
RICHARD COTTON is selling heroin from his residence at 21010 Woodlake Drive. Informant
No. 1 stated that the residence is located on the west side of Woodlake Drive near Vanowen
Street. Informant No. 1 described RICHARD COTTON as a male Caucasian, 5’9’ tall, 160 pounds, black hair, black eyes, and approximately 30-35 years of age. [Fn. 4]
I have prepared a Hobbs Attachment that is attached to the Statement of Probable Cause
and is fully incorporated into and made part of the search warrant. I request that this Hobbs
Attachment be sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 948 and Evidence Code
sections 1040-1042 by the magistrate reviewing this search warrant. If the information
contained in the Hobbs Attachment is revealed, it would endanger the life and safety of the
informant. If the Hobbs request that appears on the face sheet of this Search Warrant is
approved, I will seal the Hobbs Attachment and retain the sealed Hobbs Attachment in my
Appendix D – Page 4
possession or the possession of the Administrative Narcotics Division of the Los Angeles Police
Department subject to further order of the court. [Fn. 5]
I checked the utilities for 21010 Woodlake Drive through departmental channels and
determined that the utilities for this residence are registered to RICHARD L. COTTON. I then
checked LAPD criminal records and discovered that RICHARD L. COTTON has a two page
arrest record including two arrests in the past two years for possession of heroin. The more
recent arrest took place on January 20, 20xx, and a copy of the official two page LAPD arrest report, DR 00-15604, that describes this arrest is attached to this affidavit and incorporated herein as Exhibit No. 1. [Fn. 6]
Within the past 24 hours I drove by 21010 Woodlake Drive, Los Angeles 91401 and
observed this location to be a single story residence with a brown shingle roof and light green
stucco exterior and an attached garage. This residence is located on the west side of Woodlake
Drive near Vanowen Street. [Fn. 7]
From the information contained in this Statement of Probable Cause, including the
incorporated Hobbs Attachment, I have formed the expert opinion that heroin is presently located
at 21010 Woodlake Drive, Los Angeles since persons who sell heroin ordinarily keep quantities
of heroin within their residence for the purpose of immediate sale. I also know a “spoon
quantity” of heroin to be approximately 2-3 grams of heroin selling for approximately $25. It is
also my opinion that the narcotics paraphernalia listed on the Description page of this warrant
are articles that are commonly found in and associated with the places where heroin is found to
be present. [Fn. 8] I wish to recover the listed articles of identification from the premises since
they will establish the identity of persons exercising dominion and control over the heroin and
Appendix D – Page 5
related paraphernalia believed to be there. I expect to find such articles of identification based upon my past experience with searches and investigations of this type. [Fn. 9]
Appendix D – Page 6
FOOTNOTES TO APPENDIX D
1. It is a good practice to include the suspect as a person to be searched in the search warrant rather than merely arresting him/her at the scene and searching him/her pursuant to the arrest. If evidence is recovered from the suspect’s person as a result of a search pursuant to an arrest and a motion to suppress is made, the entire probable cause that is already set forth in the affidavit must be testified to in court to justify the arrest. If the evidence is recovered from the suspect pursuant to the search warrant, no additional testimony is needed.
2. The affidavit is written in the first person, i.e., “I saw . . .”, rather than the third person, i.e., “Your affiant saw . . . .” Both are perfectly acceptable.
3. This statement of the affiant’s training and experience accomplishes two objectives. First, it gives the magistrate an idea of the affiant’s background and serves to “introduce” the affiant to the magistrate. Second, it establishes the affiant’s expertise which increases the weight and validity of the affiant’s opinions expressed later in the affidavit.
4. Even though a Hobbs sealing is requested, this very general background information regarding the suspect will not disclose the informant’s identity.
5. This paragraph requests that a portion of the Statement of Probable Cause -- designated as the Hobbs Attachment -- be sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 978. In Hobbs, the California Supreme Court held that all or part of an affidavit to a search warrant may be sealed to protect the identity of the informant. The Hobbs case does not describe the procedure to be employed in sealing part of an affidavit, but this procedure of using a Hobbs Attachment is described in Chapter 6.
6. The incorporation of this arrest report accomplishes several objectives. First, it indicates that the suspect has a prior arrest record involving the use and possession of heroin. The prior arrest record of a suspect is a circumstance that may be considered in establishing probable cause. (People v. Morales (1968) 259 Cal.App.2d 290, 295; and People v. Buchanan (1972) 26 Cal.App.3d 274,292.) Second, the arrest report verifies the suspect’s residence address. Third, the arrest report verifies the description of the suspect. Fourth, it helps justify a search of the suspect’s person since the suspect has been arrested in the past with heroin on his person.
7. Since the premises at 21010 Woodlake Drive are described on the Search Warrant and Affidavit form, the Statement of Probable Cause should contain a statement such as this indicating how the description was obtained.
8. It is valid for the affiant to state opinions and conclusions based upon the information contained within the affidavit and based upon his/her expertise. Such an opinion contributes to probable cause. (See Chapter IV.)
Appendix D – Page 7
9. Information from a single reliable informant who saw narcotics at a location justifies the issuance of a search warrant for that location. (People v. Hansborough (1988) 199 Cal.App.3d 579, 584. See Chapter IV, Section I, Sufficiency of Information.)
Appendix D – Page 8
Appendix D – Page 9
CONTINUATION SHEET
Los Angeles Police Department Page No. TYPE OF ARREST Booking No. DR NO. 2 of 2 Arrest Report, 11350 H&S 1 234 567 00-15604
Item No. ARTICLE SERIAL NO. BRAND MODEL NO. MISC. DESCRIPTION (E.G. COLOR, SIZE, DOLLA INSCRIPTIONS, CALIBER, REVOLVER, ETC. R VALUE Observations:
Officers observed suspect Cotton W/B on Soto St. driving a 20xx Chevrolet, license no. 1ABC123. Suspect’s vehicle was weaving back and forth in the #1 lane. Officers observed the vehicle drive through the stop sign at Soto St. and Hill Pl. and continue W/B on Soto St. Officer made u-turn and followed the vehicle and activated red lights of police vehicle. Prior to stopping, suspect’s vehicle continued weaving and hit the curb on two separate occasions. Officers asked suspect Cotton to exit the vehicle. Suspect exited and fell against the vehicle. Officers noted that suspect Cotton had no odor of alcohol on his breath and that his pupils were constricted and that he had trouble standing and that blood was oozing from a puncture wound in his left arm. Officers formed opinion that suspect was under the influence of heroin to the extent that he could not safely operate a motor vehicle.
Arrest:
Suspect Cotton arrested for 23152 VC and transported to Wilshire Station for booking. At station suspect was given a breath test for alcohol which resulted in a .00 reading. Suspect was then searched as part of the booking process and a bindle of powder resembling heroin was removed from his left front pants pocket. Suspect was placed under arrest for 11350 H&S.
Additional:
Investigator M. Brenner #7289 performed preliminary drug test on powder for heroin with positive results. The evidence weighed 1.5 grams. Investigator Brenner examined suspect Cotton for evidence of heroin usage and observed puncture wounds on both arms indicative of recent heroin usage. Suspect Cotton’s pupils were constricted and had little reaction to light. In the opinion of Investigator Brenner, suspect Cotton was under the influence of heroin.
CONTINUATION SHEET
Appendix D – Page 10
HOBBS ATTACHMENT
On May 28, 20xx, I received information from Doreen Mallen, a 60 year old female who resides at 21034 Woodlake Drive, Los Angeles. Ms. Mallen is the individual described as informant No. 1 in the Statement of Probable Cause.
Ms. Mallen told me that she is employed as a nurse at Community Hospital in Woodland Hills. She has a 35 year old son named Edward Mallen who is addicted to heroin and who has tried on several occasions in the past to stop his use of heroin. On some occasions, Edward Mallen would stay overnight at her house, especially when he was involved in the use of heroin.
Ms. Mallen lives down the street from 21010 Woodlake Drive and that residence is visible from the front window of her residence at 21034 Woodlake Drive. She has lived at this residence for the past 15 years and she knows that the resident of 21010 Woodlake Drive is Richard Cotton whom she described as a male Caucasian, 5’9” tall, 160 pounds, black hair, black eyes, and approximately 30-35 years of age.
Ms. Mallen stated that on May 27, 20xx, her son Edward was at her house and stated that he needed a fix and was going to buy some heroin from “Richard.” Ms. Mallen knew that her son was referring to Richard Cotton because in the past her son stated that his main connection for heroin was Richard Cotton and she had seen her son on at least six occasions go to Richard Cotton’s house down the street from her residence and soon return to her residence stating that he had “scored” from Richard. On May 27, 20xx, she observed Edward walk to Richard Cotton’s house at 21010 Woodlake Drive and return approximately 30 minutes later. Edward showed her a folded piece of paper containing a white powder stating that he had just purchased this from Richard. Edward then went into his bedroom and locked the door. When Edward emerged from his bedroom approximately one hour later, he appeared to be under the influence of an unknown substance.
Ms. Mallen stated that she went into Edward’s room and observed the folded piece of paper in the waste basket. She retrieved the folded piece of paper which no longer contained the white powder. Ms. Mallen gave me the folded piece of paper when I spoke to her on May 28, 20xx. I recognized the paper to be a “bindle” which is a common method of packaging heroin.
I checked LAPD records and determined that on November 8, 20xx, Edward Mallen was arrested for a violation of health and Safety Code section 11550, being under the influence of heroin, and gave his residence as 21034 Woodlake Drive, Los Angeles.
I believe that Ms. Doreen Mallen is a citizen informant who contacted me because of her concern over her son’s use of heroin, and because she wishes to see a narcotics dealer in her neighborhood put out of business. She did not ask for any benefits for the information that she provided. I also verified her employment as a nurse at Community Hospital in Woodland Hills.
Based on the information contained in this Statement of Probable Cause, including this Hobbs Attachment, I have formed the opinion that Richard Cotton is selling heroin from his residence at 21010 Woodlake Drive, Los Angeles.
Appendix D – Page 11
COURT ORDER
IT IS ORDERED THAT: the portion of the search warrant affidavit identified as the “Hobbs Attachment” be sealed and maintained in a manner that complies with any rules or procedures promulgated by the Superior Court until further order of this court or any competent court.
OR
IT IS ORDERED THAT: the portion of the search warrant affidavit identified as the “Hobbs Attachment” be sealed and kept in the custody of the County Clerk and not made a public record until further order of this court or any competent court.
Dated: Judge of the Superior Court of the State of California, County of Los Angeles
Appendix D – Page 12
Appendix E
Sample Search Warrant & Affidavit Controlled Buy [Fn. 1]
- Cocaine -
Appendix E – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Dan Taylor swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Dan Taylor , HOBBS SEALING REQUESTED: YES ; NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: ; YES NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Dan Taylor [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and incorporated description page.
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 5th day of April , 20xx , at 9:45 AM/PM.
Curt Hazell HOBBS SEALING APPROVED: YES ; NO (Signature of Magistrate) NIGHT SEARCH APPROVED: ; YES NO [Fn. 2] Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix E – Page 2
YOU ARE THEREFORE COMMANDED TO SEARCH:
LOCATION: The premises [Fn. 3] at 210 West Temple Street, Apartment 18, Santa Monica, 90401, further described as an apartment unit within a two story, multi-unit apartment building bearing the name “La Mer Apartments”, and all rooms, attics, containers and other parts within Apartment 18, and all garages, trash containers, and storage areas designated fore the use of Apartment 18;
PERSON: The person of JOHN BROWN further described as a male Caucasian, 6 feet tall, 150 pounds, shoulder length brown hair, goatee, brown eyes, approximately 25 years of age.
FOR THE FOLLOWING PROPERTY/PERSON:
Cocaine and cocaine paraphernalia including milk sugar, scales and other weighing devices, balloons, condoms, paper bindles, measuring devises, miniature spoons, short straws, articles tending to establish and document sales of cocaine including U.S. currency, buyer lists, seller lists, and recordations of sales, and articles of personal property tending to establish the identity of persons in control of the premises, vehicles, storage areas and containers being searched including computers and the electronics files contained within, utility company receipts, rent receipts, addressed envelopes and keys.
Appendix E – Page 3
My name is Dan Taylor. I am employed by the Los Angeles Police Department (LAPD) and have been a police officer for the past eight years. For the past 27 months I have been assigned to the West Los Angeles Narcotics Division and have worked exclusively in the investigation of California Uniform Controlled Substances Act violations during that time. I have conducted in excess of 400 controlled substances investigations and have arrested in excess of 600 persons for violations dealing with heroin, cocaine, PCP, marijuana, and methamphetamine. I have directly participated in over 50 undercover buys of controlled substances. I have also participated in the seizure of controlled substances in excess of 250 times. I have interviewed hundreds of persons who use controlled substances and who sell or have sold controlled substances. I have testified as an expert on controlled substances in various courtrooms in Los Angeles County in excess of 25 times.
Within the previous six days I received information from an informant hereinafter designated in this affidavit as Informant No. 1. Informant No. 1 is untested in that I have not previously received information from this informant. Informant No. 1 told me that John Brown was selling cocaine from John Brown’s residence at 210 West Temple Street, Apartment 18,
Santa Monica.
Informant No. 1 stated that he/she has purchased cocaine from John Brown in the past at
210 West temple Street, Apartment 18, with the most recent purchase having taken place within one week prior to my receiving this information from Informant No. 1. Informant No. 1 described John Brown as a male Caucasian, six feet tall, 150 pounds, shoulder-length brown hair, goatee, brown eyes, approximately 25 years of age. Informant No. 1 stated that he/she could make additional future purchases of cocaine from John Brown. I questioned Informant
No. 1 carefully regarding drug trafficking and the appearance, price, use, and effect of various
Appendix E – Page 4
street drugs. Informant No. 1’s answers demonstrated extensive knowledge of street drugs including cocaine.
After receiving the above information from Informant No. 1, I conducted a thorough and complete search of Informant No. 1 including the informant’s clothes and body cavities. I also searched the passenger compartment of the informant’s car. I discovered no contraband on the person of Informant No. 1 or in the vehicle of Informant No. 1. Informant No. 1 was given $100 in police funds. The informant then drove his/her vehicle to the vicinity of 210 West Temple
Street, Santa Monica, where the informant parked his vehicle in front of the location. I followed
Informant No. 1 to this location keeping the informant and the vehicle in view at all times. I observed Informant No. 1 exit the vehicle, enter the apartment complex at 210 West Temple
Street, and knock on the front door of Apartment 18. I saw the door to Apartment 18 open and
Informant No. 1 enter and leave my view. Approximately 10 minutes later, I saw Informant No.
1 exit Apartment 18 through the front door and walk to his/her vehicle. Informant No. 1 then drove the vehicle to a pre-arranged meeting place approximately one block from 210 West
Temple Street. At this location Informant No. 1 gave me a folded paper bindle containing a white powder appearing to be cocaine. Informant No. 1 stated that he/she had just purchased the bindle and its contents for $100 from John Brown inside Apartment 18 at 210 West Temple
Street.
From the time I searched Informant No. 1 and the informant’s vehicle until the time that
Informant No. 1 gave me the bindle and its contents, the informant and the vehicle were in my view at all times except for the time that Informant No. 1 was inside 210 West Temple Street,
Apartment 18, Santa Monica. [Fn. 4]
Appendix E – Page 5
I observed 210 West Temple Street, Santa Monica, to be a two-story apartment building bearing the name “La Mer Apartments” with Apartment 18 on the first floor. I checked the mail registry for the apartment building and observed the name John Brown next to Apartment 18.
I conducted a preliminary field test on the contents of the bindle and the test was positive for cocaine. I recognized the bindle received from Informant No. 1 as a typical bindle of cocaine which I have observed on at least 50 occasions in the past.
Based upon the foregoing, it is my opinion that cocaine is being sold from the described premises and that the items sought will be found therein and on the person of John Brown.
I also request that this search warrant be approved for service at any time of the day or night. Informant No. 1 told me that he/she had personally purchased cocaine from John Brown on at least one occasion in the past month between the hours of 10 PM and 7 AM and that John
Brown regularly sells drugs during those hours and prefers to sell at night to avoid possible police surveillance. [Fn. 5]
My experience in investigation of illegal narcotics activity has shown that consumption, sale, and transfer of narcotics continue day and night. It is therefore important that the items sought be seized as soon as possible, otherwise I fear that they will become nonexistent through consumption, sale, or transfer.
I request that the identity of Informant No. 1 remain confidential for the following reasons: Disclosure will jeopardize the life and safety of the informant and will destroy the informant’s future usefulness to law enforcement officers in detecting illegal activity.
Based on my training and experience, the items of drug paraphernalia sought to be seized are articles that are commonly found in and associated with places where cocaine is being sold. I
Appendix E – Page 6
also wish to seize the enumerated items of identification in order to establish the identity of the person selling cocaine.
Appendix E – Page 7
FOOTNOTES TO APPENDIX E
1. A “controlled buy” is a purchase of drugs by an informant who is acting under the direct supervision and surveillance of police officers. A controlled buy from a location establishes probable cause to believe that the occupants are selling drugs and that additional drugs and related paraphernalia will be found within the premises where the buy was made. People v. Watson (1979) 89 Cal.App.3d 376, 385; Hemler v. Superior Court (1975) 44 Cal.App.3d 430; People v. Hall (1971) 3 Cal.3d 992, 995-7; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206.
2. There are several ways a magistrate can indicate authorization of nighttime service. Different forms use different techniques. Be certain that the form used is filled out properly. See Chapter V.
3 Decisions hold that a warrant to search “premises” located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to the main building even though not expressly authorized in the search warrant. See Chapter II, Section A.2., Search of Premises. In this warrant, the search of such outbuildings and appurtenances is expressly authorized. This is the recommended practice.
4. This paragraph in the affidavit confirms that a true “controlled” situation existed with respect to the informant obtaining drugs. Since the controlled nature of the buy forms the factual and legal basis of the warrant, this must be expressly set forth in the affidavit.
5. The fact that sales of controlled substances are taking place in the nighttime hours justifies a magistrate in approving the search warrant for nighttime service. See Chapter V. The information about previous nighttime sales by the suspect comes form an informant who is now tested, since the informant has now been corroborated by the controlled buy from the suspect.
Appendix E – Page 8
Appendix F
Sample Search Warrant & Affidavit Rock House
- Rock Cocaine -
Appendix F – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Officer Alex Lindsey swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Alex Lindsey , HOBBS SEALING REQUESTED: YES NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: ; YES NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Alex Lindsey [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
The premises at 320 West Temple Street, City and County of Los Angeles, further described as a single story dwelling house including all rooms, attics, basements, and other parts therein, the surrounding grounds, and any storage rooms, storage areas, outbuildings and safes located thereon.
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page. [Fn. 1]
AND TO SEIZE IT/THEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 22nd day of July , 20xx, at 10:00 AM/PM.
Sharon J. Matsumoto HOBBS SEALING APPROVED: YES NO (Signature of Magistrate) NIGHT SEARCH APPROVED: ; YES NO
Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix F – Page 2
FOR THE FOLLOWING PROPERTY:
Rock cocaine, cocaine, and narcotic paraphernalia including scales and other weighing
devices, baking soda, test tubes and containers of various types commonly associated with the
storage and use of rock cocaine;
Articles of personal property tending to establish and document sales of rock cocaine
including U.S. currency, buyer lists, seller lists and recordations of sales;
Articles of personal property tending to establish the existence of a conspiracy to sell
rock cocaine including personal telephone books, address books, telephone bills, papers and
documents containing lists of names; and,
Articles of personal property tending to establish the identity of persons in control of the
premises, vehicles, storage areas or containers where rock cocaine may be found including computers and the electronic files contained within, utility company receipts, rent receipts, canceled mail envelopes and keys.
Appendix F – Page 3
AFFIDAVIT FOR SEARCH WARRANT
Your affiant is a police officer employed by the Los Angeles Police Department and has been so employed for the past eight years. For the past two years your affiant has been assigned to the Operation South Bureau CRASH (Community Resources Against Street Hoodlums).
While assigned to this unit your affiant has investigated numerous homicides, attempted murders, assaults, drive-by shootings, and various other crimes of violence. Your affiant has had numerous contacts with street gang members due to investigations, arrests, and conversations with gang members.
Your affiant has also participated in over 100 investigations and/or arrests of persons involved in the sale, possession for sale, and possession of controlled substances. Your affiant has participated in investigations involving the undercover purchases of controlled substances on approximately 20 occasions. Your affiant has participated in investigations that resulted in the seizure of cocaine on approximately 100 occasions.
In addition to training at the Los Angeles Police Academy, your affiant has received on- the-job training in the manner in which narcotics, including cocaine, are sold in the Los Angeles area. Your affiant has spoken to narcotics officers, users of narcotics, sellers of narcotics, and informants regarding the manner in which narcotics transactions are commonly carried out, and the manner in which narcotics, including cocaine, are packaged for sale, and the manner in which sellers of narcotics store, conceal, sell and transport narcotics.
Your affiant has attended in excess of 80 hours of classroom training at the Los Angeles
Police Academy and the Los Angeles County Sheriff’s Academy dealing with the identification, recognition, sales, and packaging of controlled substances.
Appendix F – Page 4
Your affiant has testified as an expert in the possession for sale of controlled substances on approximately 25 occasions in various courtrooms in California and in federal court.
Your affiant has determined from both personal experience and from fellow officers that there has been a dramatic increase in the number of street gangs in the South Los Angeles area.
With regard to the street sales of cocaine in the South Los Angeles area, your affiant is aware that such dealers generally deal in “rock cocaine”. Rock cocaine, also known as cocaine base, is a concentrated form of cocaine derived from powdered cocaine. [Fn. 2] Your affiant has seen this substance on hundreds of occasions and your affiant has conducted chemical field tests on this and other substances on many occasions.
Your affiant is aware that sales of rock cocaine often take place from “rock houses”.
These are fortified locations from which a person or persons sell rock cocaine to customers who walk up to the location. Often, the transaction is completed at a door or window with the customer remaining outside the location and the seller remaining inside. Under this scenario the customer is often unable to see the face of the person from whom he/she is buying. Sometimes the customer is admitted into the location long enough to complete the transaction and the customer will leave as soon as the purchase of rock cocaine has been completed. The observation of large numbers of persons going to a suspected rock house, remaining a short period of time, and then leaving will generally confirm that sales of rock cocaine are taking place from the location. [Fn. 3]
Your affiant has received information from an informant hereinafter designated in this affidavit as C.I. C.I. is untested in that your affiant has not previously received information from this informant. C.I. told your affiant that within the past month C.I. has purchased rock cocaine at a rock house located on the corner of Temple Street and Broadway. C.I. stated that the last
Appendix F – Page 5
time he/she purchased rock cocaine at this location was the week of July 14 to July 18, 20xx.
C.I. stated that on each occasion he/she went to this location, he/she would walk to the front door, place a quantity of U.S. currency in a slot in the front door, and then receive a quantity of rock cocaine through the slot from an unknown person inside the location. C.I. would then leave the location. C.I. stated that the purchases of rock cocaine at this location each took place in the late evening hours.
After receiving the above information from C.I., your affiant and C.I. drove to the vicinity of Temple Street and Broadway in the City of Los Angeles. C.I., pointed out a house on the southwest corner of Temple Street and Broadway as the location where he/she had purchased rock cocaine. Your affiant observed this location to be a single story dwelling house with an attached garage with an address of 320 West Temple Street, Los Angeles.
On July 21, 20xx your affiant and fellow officers placed the location of 320 West Temple
Street, Los Angeles under surveillance. The front door of the location was not visible from your affiant’s observation point. Between the two hours of 10:00 PM and midnight, your affiant observed approximately 18 different individuals, both male and female, approach the front door and briefly disappear from your affiant’s view. Less than one minute later, each of these individuals would reappear and leave the location.
Your affiant observed that at least eight persons leaving the location had their hands closed as if holding something. Your affiant has formed the expert opinion that this foot traffic involving numerous persons going to the location for a short period of time and then leaving indicates that controlled substances are being sold from this location. This narcotics traffic, when coupled with the information received from C.I., has led your affiant to form the expert opinion that rock cocaine is being sold from this residence. [Fn. 4]
Appendix F – Page 6
Your affiant requests that this search warrant be approved for service at any time of the day or night. C.I., told your affiant that he/she had purchased rock cocaine at the location to be searched in the late evening hours, and your affiant has observed foot traffic indicative of narcotics sales at the location after 10:00 PM. Your affiant desires to serve this warrant when it is most likely that sales of rock cocaine are taking place upon the premises and this appears to be during the nighttime hours after 10:00 PM. [Fn. 5]
Your affiant requests that the identity of C.I. remain confidential for the following reasons: Disclosure will jeopardize the life and safety of the informant and will destroy the informant’s future usefulness to law enforcement officers in detecting illegal activity.
Based on your affiant’s training and experience, your affiant states that the items of drug paraphernalia sought to be seized are articles that are commonly found in and associated with places where rock cocaine is being sold. Your affiant also wishes to seize the enumerated items of identification in order to establish the identities of the persons selling rock cocaine. [Fn. 6]
Appendix F – Page 7
FOOTNOTES TO APPENDIX F
1. It is appropriate to attach preprinted description pages of items to be seized. This eliminates the need for preparing a description page every time a search warrant for a particular controlled substance is prepared. A properly prepared pre-printed description will ensure that it complies with the requirement of “reasonable particularity” in every instance.
2. The California Health & Safety Code does not use the terminology “rock cocaine”. Instead, the terminology “cocaine base” is used. (E.g., see California health & Safety Code §§ 11054(f)(1) and 11351.5.) This sentence in the affidavit makes it clear that rock cocaine is the same as cocaine base.
3 In this affidavit it is important to establish the affiant’s expertise in sales of rock cocaine from rock houses since the affiant’s observation of foot traffic will be an important factor in establishing probable cause.
4. Surveillance of narcotics traffic, such as numerous persons going to a location for a short period of time and then departing, when coupled with information received from an untested informant will support the issuance of a search warrant for the location. (People v. Childress (1979) 99 Cal.App.3d 36; People v. Thomas (1980) 112 Cal.App.3d 980; People v. Kershaw (1983) 147 Cal.App.3d 750, 758-760; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1720.)
In this type of search warrant the affiant’s expertise should clearly be set forth in the affidavit so that the affiant can give the expert opinion that the observed foot traffic was indicative of narcotics sales.
5. The sale of rock cocaine during nighttime hours furnishes good cause for nighttime service. (See Chapter V.)
6. It is not necessary that the seller’s identify be known in order to obtain a search warrant for a place at which drug trafficking is taking place. If probable cause establishes that drug trafficking is taking place a search warrant can be issued for the location even though the involvement of the ultimate defendant is unknown or cannot be fully established at the time the warrant is obtained. (People v. Fernandez (1989) 212 Cal.App.3d 984, 989.)
Appendix F – Page 8
Appendix G
Sample Search Warrant & Affidavit Fruits, Evidence & Instrumentalities of a Crime
- Gang Shooting -
Appendix G – Page 1
SW NO. STATE OF CALIFORNIA - COUNTY OF LOS ANGELES SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT) Jeremy Bryan swears under oath that the facts expressed [Name(s) of Affiant(s)] by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the location(s) set forth below. Wherefore, affiant requests that this Search Warrant be issued.
Jeremy Bryan , HOBBS SEALING REQUESTED: YES ; NO [Signature(s) of Affiant(s)] NIGHT SEARCH REQUESTED: YES ; NO (SEARCH WARRANT) THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY PEACE OFFICER IN THE COUNTY OF LOS ANGELES: proof by affidavit and having been sworn to this day before me by Jeremy Bryan [Name(s) of Affiant(s)] that there is probable cause for believing that the property and/or person described herein may be found at the location(s) set forth herein and is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by “x”(s) in that: it was stolen or embezzled X it was used as the means of committing a felony X it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery, X it tends to show that a felony has been committed or that a particular person has committed a felony, it tends to show that sexual exploitation of a child in violation of Section 311.3, or possession of material depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring there is a warrant to arrest the person; YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and incorporated description page. [Fn. 1]
FOR THE FOLLOWING PROPERTY/PERSON:
See attached and incorporated description page. [Fn. 1]
AND TO SEIZE ITTHEM IF FOUND and bring it/them forthwith before me, or this court, at the courthouse of this court. This Search Warrant incorporates the Affidavit upon which it is based. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it this 3rd day of May , 20xx , at 11:00 AM/PM.
John Paul Bernardi HOBBS SEALING APPROVED: YES ; NO (Signature of Magistrate) NIGHT SEARCH APPROVED: YES ; NO Judge of the Superior Court of the State of California, County of Los Angeles.
SW & A1 DA-1506-A1-76S346W3-Rev. 01/09
Appendix G – Page 2
YOU ARE THEREFORE COMMANDED TO SEARCH[Fn. 1] THE FOLLOWING PREMISES:
Location #1: 102 Elm Street, Los Angeles, CA 90032, further described as a single-family
residence with a beige stucco exterior and a shingle roof;
Location # 2: 189 Poco Street, El Monte, CA 91732, further described as a single-family
residence with a light green stucco exterior and green tar paper and rock roof;
including as to both locations all rooms, attics, basements, and other parts therein, the
surrounding grounds, any garages, storage rooms, containers, trash containers, and out buildings
of any kind located thereon.
THE FOLLOWING VEHICLE:
A 20xx Volkswagen van, tan in color, California license number “I RUN”;
AND THE FOLLOWING PERSONS:
Person # 1: John “Fast Johnny” Owens, a male Caucasian, 5’9”, 165 lbs., brown hair and eyes,
DOB 06/01/xxxx;
Person # 2: Anthony Quintero, a male Hispanic, 5’3”, 158 lbs., black hair, brown eyes, DOB
08/03/xxxx.
FOR THE FOLLOWING PROPERTY:
1. Handguns of any caliber, shotguns of any gauge or caliber, ammunition for any handgun
or shotgun, any miscellaneous gun pieces, gun cleaning items or kits, holsters, ammunition belts,
original box packaging, targets, expended pieces of lead, any photographs of firearms, and any
paperwork showing the purchase, storage, disposition, or dominion and control over any guns,
any ammunition, or any of the above items.
2. Evidence of street gang membership or affiliation with the Varrio Delano (VD) or Mar
Vista Primo’s (MVP) gangs including any documents, photographs, drawings, writings, objects,
Appendix G – Page 3
and graffiti depicting gang member’s names, initials, logos, monikers, slogans, or containing mention of street gang membership, affiliation, activity or identity, and any newspaper clippings in reference to the April 30, 20xx shooting of Fred Hermes.
3. Articles of personal property tending to establish the identity of persons in control over the premises and automobile to be searched including computers and the electronic files contained within, rent receipts, utility bills, telephone bills, addressed envelopes, personal identification, keys, purchase receipts, sales receipts, photographs, vehicle “pink slips” and vehicle registration.
Appendix G – Page 4
Your affiant, Investigator Jeremy Bryan, Serial # 06430, has been a police officer with the Los Angeles Police Department for 11 years. For the past five years I have been assigned to work Operation West Bureau (OWB) CRASH (Community Resources Against Street
Hoodlums), a unit which specializes in the investigation of gang crimes. While with OWB, I have investigated in excess of 200 incidents of gang violence. I have been the primary investigator on more than 20 gang homicide cases. I have received formal training on gangs at the Los Angeles Police Academy and have attended numerous seminars on gangs including a three-day training conference hosted by the Southern California Gang Investigator’s Association.
I have qualified as an expert on gangs and have so testified two times in Los Angeles County
Superior Court. [Fn. 2]
On May 1, 20xx I began an investigation into a gang shooting that occurred on April 30,
20xx. I first spoke to a Martha Quintero who stated that she lives in a part of East Los Angeles which the Varrio Delano (VD) street gang considers their turf. She stated that on April 29, 20xx she went out on a date with a Fred Hermes, AKA “Fat Freddy”, whom she knows to be associated with the Mar Vista Primos (MVP) street gang. She stated that when she returned home that evening her brother, Anthony Quintero, noticed a hickey on her neck. She said that her brother struck her and told her that VD would “teach the MVPs not to be messing around with VD’s homegirls.”
I also spoke to Fred Hermes who stated that on April 30, 20xx at approximately 9:00 PM he was drinking beers in front of his residence when he observed a tan Volkswagen van pull up in front of his residence. He recognized the vehicle as belonging to one “Fast Johnny” Owens, a person he knows to belong to VD. Hermes related that Owens called him over to the van and as he (Hermes) got next to the vehicle, the side door swung open. He observed Anthony Quintero
Appendix G – Page 5
in the back of the vehicle pointing a shotgun at him. He then noticed Owens, the driver, pointing a handgun at him. Quintero then yelled out “filthy MVP” and fired one shot striking Hermes in the groin. The van then sped away. Hermes was seriously injured and was in the intensive care unit at County Hospital when I spoke to him.
I then spoke to another witness, Maya Gabriel, AKA “Gabby”, a neighbor of victim
Hermes, who said she was on her front porch when the shooting occurred. She told me she observed the tan VW van drive away from the shooting scene and lose control, driving over her front lawn. Witness Gabriel told me she is an associate of MVP and also knows many persons connected with VD. She stated she could identify the two persons in the van as members of VD.
She said they were John Owens and Anthony Quintero. She also said the van had a personalized license plate, but she could not recall it.
On May 2, 20xx I prepared two photographic six person lineup cards and presented them to witness Gabriel. She positively identified Owens and Quintero, one from each card, as the persons in the van. Both have previously been photographed and booked by the LAPD and their physical descriptions (below) are from recent booking slips and were verified by Gabriel.
1. John “Fast Johnny” Owens: male Caucasian, 5’9”, 165 lbs., brown hair and
eyes, DOB 6/01/xxxx.
2. Anthony Quintero: male Hispanic, 5’3”, 158 lbs., black hair, brown eyes,
DOB 8/03/xxxx.
John Owens was previously arrested on other charges on 1/01/20xx and at that time gave his residence address as 102 Elm Street, Los Angeles. A check through departmental channels with the Department of Water and power showed that the utilities for that location are currently
Appendix G – Page 6
in the name of John Owens. A check through departmental channels showed Owens as the current registered owner of a 20xx Volkswagen van, tan in color, license number “I RUN”.
I was told by witness Martha Quintero that her brother Anthony currently resides with her and her family at 189 Poco Street, El Monte CA 91732.
Based upon the foregoing and my experience as a gang investigator, it is my opinion that
John Owens and Anthony Quintero conspired together and did act together in an attempt to murder Fred Hermes because he was from a rival gang and because he was dating Martha
Quintero.
It is also my opinion based upon my expertise and training with regard to gang shootings that Owens and Quintero took the weapons they used in the shooting back to their residences, since that is the practice in most cases, or that either Quintero or Owens is hiding both weapons within his own residence, or that one or both of the weapons sought is still within the VW van.
In addition to any firearms already described, I also expect to find and wish to seize miscellaneous gun pieces, ammunition, gun cleaning items or kits, holsters, ammunition belts, original box packaging, targets, expended pieces of lead, photograph of firearms, and paperwork showing the purchase, storage, disposition, or dominion and control over any guns, any ammunition, or any of the other above items.
It is my opinion that whether or not the firearms sought are themselves recovered, the above related items would tend to show that firearms existed and had once been located in a place to which suspects had access, and that these items would tend to connect the suspects with the weapons sought and the shooting of Fred Hermes. I further note that in my experience the above items are not normally disposed of after the commission of a crime, and they are therefore
Appendix G – Page 7
still likely to be found in the locations or vehicle to be searched, or on the person of the suspects
to be searched pursuant to this warrant.
Your affiant also expects to find, and requests your permission to seize, evidence of street
gang membership and affiliation specifically relating to the Varrio Delano (VD) or Mar Vista
Primos (MVP) gangs, said items to include any drawings and miscellaneous writings and objects
and graffiti depicting gang members’ names, initials, logos, monikers, slogans or containing
mention of street gang membership , affiliation, activity or identity as it is my experience that
most street gang members are known by street names or monikers to their fellow gang members,
and that they frequently write their gang name, their street name or moniker, and the street
names or monikers of their associates on walls, furniture, residences, and within and on their
vehicles.
I also expect to find and request permission to seize paintings, drawings, photographs,
and photograph albums depicting persons, vehicles, weapons, and locations which may appear
upon observation to be relevant on the question of gang membership and association, or which
may depict items believed to be evidence in the case being investigated with this warrant. It is
my experience that most gang members keep photographs and photograph albums in which are
depicted (1) fellow gang members who are posing and giving hand gang signs which indicate gang activity or affiliation, (2) gang members or associates posing with weapons, particularly firearms, which have been used for criminal activities, and (3) gang members or associates posing beside vehicles which have been used during the commission of crimes.
I also expect to find and wish to seize newspaper clippings in reference to the April 30th shooting as it is my experience that gang members often maintain scrapbooks or newspaper articles which describe crimes committed by or against their gangs.
Appendix G – Page 8
It is my opinion that evidence of gang membership or affiliation with a street gang is important as it will provide motive for the commission of the crime in the instant case and it may provide evidence which will tend to identify other persons who may have knowledge of or be involved in the commission of the crime in the instant case, and it may tend to corroborate information given by other witnesses.
I further believe that these are not the types of items normally disposed of after the commission of a crime and that they will therefore likely still be found in the locations and on the persons to be searched.
I further request permission to seize any articles of personal property tending to establish the identity of persons who have dominion and control over the premises and automobile to be searched, or items to be seized, including rent receipts, utility bills, telephone bills, addressed mail, personal identification, keys, purchase receipts, sales receipts, photographs, vehicle “pink slips” and vehicle registration.
I believe that these items will tend to connect the premises, vehicle, persons, and locations to be searched with the items to be seized and the crime being investigated. I believe that these items are not the type normally disposed of and will therefore likely be found at the locations to be searched. [Fn. 3]
Appendix G – Page 9
FOOTNOTES TO APPENDIX G
1. Since the descriptions of places to be searched and items to be seized are too long to fit on the printed form, they may be listed on separate “Description Pages” and attached and incorporated as shown.
2. Identify and expertise is now established.
3. The affiant’s opinion is based upon his experience and training as an officer and the facts set forth in the affidavit. Case law holds that such an opinion has evidentiary value in the affidavit for a search warrant. (See Chapter IV.)
Appendix G – Page 10
Appendix H
Blank Return Form and Completed Sample
- Return to Search Warrant -
Appendix H – Page 1
STATE OF CALIFORNIA - COUNTY OF LOS ANGELES
RETURN TO SEARCH WARRANT
, being sworn, says that he/she conducted a search (Name of Affiant)
pursuant to the search warrant described below:
Issuing Magistrate:
Magistrate’s Court:
Date of Issuance:
Date of Service: and searched the following location(s), vehicle(s), and person(s):
Appendix H – Page 2
And seized the items*
described in the attached and incorporated inventory.
described below:
I further swear that this is a true and detailed account of all the property taken by me pursuant to the search warrant, and that pursuant to Penal Code sections 1528 and 1536, this property will be retained in my custody subject to the order of this court or of any other court in which the offense in respect to which the seized property is triable.
(Signature of Affiant)
Sworn to and subscribed before me this day of , 20
(Signature of Magistrate) Judge of the Superior Court of the State of California, County of Los Angeles.
* List all items seized including items not specifically listed in the warrant.
Appendix H – Page 3
STATE OF CALIFORNIA - COUNTY OF LOS ANGELES
RETURN TO SEARCH WARRANT
Jeremy Bryan , being sworn, says that he/she conducted a search (Name of Affiant)
pursuant to the search warrant described below:
Issuing Magistrate: John Paul Bernardi
Magistrate’s Court: Los Angeles County
Date of Issuance: May 3, 20xx
Date of Service: May 3, 20xx and searched the following location(s), vehicle(s), and person(s):
1. 102 Elm Street, Los Angeles, CA 90032
2. 189 Poco Street, El Monte, CA 91732
3. 20xx Volkswagen van, license No. I RUN
4. John Owens, male Caucasian, 5’9”, 165 lbs., brown hair and eyes, DOB 6/01/xxxx
5. Anthony Quintero, male Hispanic, 5’3”, 158 lbs., black hair, brown eyes, DOB 8/03/xxxx
Appendix H – Page 4
And seized the items*
described in the attached and incorporated inventory.
X described below:
1. 38 Cal. Smith & Wesson revolver, serial # 14962.
2. One Remington brand shotgun, serial # 26617.
3. One box of Remington brand 12-gauge shotgun shells containing six live rounds.
4. One multicolored banner with the words Varrio Delano written on it.
5. Twenty-seven photographs showing male persons in gang clothes displaying firearms.
6. One vehicle registration to a 20xx Volkswagen van, license # I RUN, in the name John Owens.
7. Two sets of miscellaneous keys.
I further swear that this is a true and detailed account of all the property taken by me pursuant to the search warrant, and that pursuant to Penal Code sections 1528 and 1536, this property will be retained in my custody subject to the order of this court or of any other court in which the offense in respect to which the seized property is triable.
Jeremy Bryan (Signature of Affiant)
Sworn to and subscribed before me this 9th day of May , 20xx .
John Paul Bernardi (Signature of Magistrate) Judge of the Superior Court of the State of California, County of Los Angeles.
* List all items seized including items not specifically listed in the warrant.
Appendix H – Page 5
Appendix I
Sample Addendum to Return to Search Warrant
Request & Order for Deposit of Seized Funds Into Bank Account
Appendix I – Page 1
ADDENDUM TO RETURN TO SEARCH WARRANT
SEARCH WARRANT NO. ______
REQUEST AND ORDER FOR DEPOSIT OF SEIZED FUNDS INTO BANK ACCOUNT
I. REQUEST
As noted on the attached Return to Search Warrant, the sum of $ United States currency was seized during the execution of this search warrant. This currency is currently being stored in a secured evidence locker in the Property Division of the Police Department. Storage of U.S. currency in the Police Department’s secured evidence locker is a security risk and takes up storage space. The bills constituting the currency seized do not appear to have any unique evidentiary value in and of themselves. It is requested that this money be released from the secured evidence locker for deposit into a designated bank account set up for this purpose.
The order set forth below will be presented to the Property Division of the Police Department only if it is determined by the Supervising Officer on the case, after consultation with the prosecuting agency, that the bills themselves have no evidentiary value.
(Requesting Officer) (Date)
II. ORDER
TO THE CUSTODIAN OF EVIDENCE, Police Department:
It is ordered that the U.S. currency described above be released from the secured evidence locker to the Requesting Officer named above for transfer and deposit into a designated back account set up for the purpose of receiving such funds.
Judge of the Superior Court of the State of California, (Date) County of Los Angeles
Appendix I – Page 2
Index
Affidavit Defined...... I-3 Affidavit, Form and Contents ...... I-4 AIDS Blood Test...... I-14 Airport Searches Involving Trained Dogs...... IV-41 Alternatives to a Search Warrant...... I-10 Answering Phone...... X-22 Answering the Telephone ...... IV-45 Arrest Warrant ...... I-6 Arson Scene Searches...... IV-43 Auto Repair Facility...... I-12 Bank Records - Administrative Subpoena or Summons...... III-11 Bank Records – How Obtained...... III-10 Bank Records - Judicial Subpoena or Subpoena Duces Tecum ...... III-12 Bank Records - Police Request...... III-13 Bank Records - Search Warrant...... III-11 Bank Records - Victimized Financial Institution ...... III-13 Bookmaking...... III-6 Business Permeated with Fraud...... III-25 California Right to Financial Privacy Act ...... III-10 Checklist ...... VIII-1 Checklist – Describing Property and Person(s) to be Seized ...... III-27 Child Molestation Cases ...... III-25 Citizen Informants ...... IV-8, IV-23 Computer Searches ...... III-19 Computer Searches -- Describing the Data...... III-23 Computer Searches -- Describing the Hardware ...... III-23 Computer Searches -- Searching the Computer...... III-24 Computer Services Records - Foreign Corporations ...... III-19 Conducting the Search ...... X-10 Confidential Reliable Informant ...... IV-21 Consent ...... I-11 Consent to Release Bank Records ...... III-11, III-28 Continuous Search ...... X-14 Controlled Delivery/Anticipatory Search Warrant...... IV-36 Controlled Substances...... III-3 Corroboration...... IV-26 Credit Card Information...... III-18 Crime Scene Searches...... II-12, IV-42 Crimes Committed Outside the State...... I-6 Crimestopper Informants ...... VI-24 Declaration Against Interest ...... IV-24 Describing Persons ...... II-7 Describing Places -- Address Known ...... II-2
Index – Page 1
Describing Places -- Address Unknown ...... II-4 Describing Places -- Store or Business...... II-3 Describing Places, Vehicles, and Persons ...... II-1 Describing Property and Person(s) to Be Seized...... III-1 Describing Vehicles...... II-5 Disclose Informant Only If Material ...... VI-4 Disclosure of Informants -- Compliance With Disclosure ...... VI-20 Dominion and Control Evidence ...... III-17 Double Hearsay...... IV-25 Electronic Mail Search Warrants...... IX-2, IX-7 Emergency ...... I-12 Emergency Aid Exception ...... I-12 Establishing Credibility of Informants ...... IV-8 Establishing Factual Basis of Information...... IV-21 Establishing Identity, Training and Experience...... IV-5 Exigent Circumstances ...... I-12 Facsimile Search Warrants ...... IX-2, IX-7 Failure of Recording Equipment...... IX-6 Flagrant Disregard ...... X-21 Form of Warrant ...... I-1 Fourth Amendment Violation...... I-14 Good Faith Exception ...... I-8, II-12, III-26, XI-16 Government Code section 7473...... III-10 Government Code section 7474...... III-11 Government Code section 7475...... III-11 Government Code section 7476...... III-12 Government Code section 7480(e)(1)...... III-10 Hiding Places ...... II-4 Hobbs Attachment ...... VI-22 Hobbs Warrants ...... VI-21 Illegally Obtained Information in Affidavit...... XI-15 Imminent Destruction of Evidence ...... I-12 In Camera Hearing...... VI-16 Informant Disclosure ...... VI-2 Informant Disclosure -- No Disclosure to Attack Probable Cause...... VI-2 Informant Sworn Before Magistrate ...... IV-16 Informant’s Background and Motivation to Assist Police...... IV-18 Informants -- Protecting Identity ...... VI-1 Installing a Tracking Device...... II-6 Inventory of Items Seized ...... X-14 Jurisdiction of Magistrate Issuing Warrant...... I-5 Keeping Informant Confidential...... I-9 Knock and Notice -- Justification for Noncompliance ...... X-6 Knock and Notice -- Substantial Compliance...... X-7 Knock and Notice Requirements ...... X-4 Loss of Search Warrant Affidavit...... XI-21
Index – Page 2
Luttenberger Motions ...... VI-2 Magistrate Defined ...... I-3 Making Copies of the Search Warrant and Affidavit ...... VII-2 Motion to Quash Search Warrant ...... XI-9 Motion to Traverse Search Warrant...... XI-10 News Media Entry ...... X-3 Newsroom Searches...... II-10 Nighttime Searches ...... V-1 Nighttime Searches -- Good Cause...... V-2 Nighttime Searches -- Good Faith Exception...... V-1 Number of Places, Vehicles or Persons per Warrant...... II-9 Observations of the Affiant...... IV-24 Occupying Premises before Search ...... X-2 Office of Attorney-Doctor-Psychotherapist-Clergyman ...... II-10 Officer Protection ...... I-9 Official Channels ...... IV-20 Only Peace Officers May Serve Search Warrants ...... X-10 Oral Affidavits ...... IX-1, IX-2 Out of County Search Warrants...... I-5 Parole Search ...... I-10 Pen Registers and Trap-and-Trace Devices...... III-17 Penal Code section 1524...... III-14 Penal Code Section 1538.5 Motions...... XI-2 Phone Records ...... III-15 Plain View...... I-14 Police Reports as Exhibits in Affidavit...... IV-32 Preference Given to Search Warrants...... I-6 Presumption of Validity...... I-8 Prior Illegal Entry ...... X-3 Probation Search ...... I-10 Property Tending to Identify Perpetrator...... III-8 Property Used to Commit Felony ...... III-8 Proposition 8 ...... XI-1 Questioning Occupants ...... X-12 Ramey Problems ...... I-9 Reading/Seizing Documents...... X-17 Reducing Likelihood of Disclosure ...... VI-18 Releasing Property Seized Pursuant to a Search Warrant ...... X-24 Reliable Informants...... IV-10 Return of the Warrant – Time Limit...... VII-4 Return to the Search Warrant...... X-23 Ruse to Get Door Open...... X-8 Safes and Locked Containers...... X-22 Sealed Affidavits Pursuant to People v. Hobbs ...... XI-17 Sealing the Affidavit...... VII-4 Sealing the Affidavit to Protect Informant’s Identity ...... VI-21
Index – Page 3
Search Following Arrest ...... I-13 Search of a Car...... I-12 Search of a Person...... X-14 Search of Suspect’s Residence ...... IV-39 Search Warrant Checklist ...... VIII-1 Search Warrant Defined...... I-1 Searches of Other Than Places, Vehicles and Persons ...... II-9 Searching Containers Within the Premises...... X-13 Seizure of a Person ...... III-26 Seizure of Items Not Described in the Warrant...... X-17 Sex Offenses ...... IV-42 Sexual Exploitation of Children ...... III-25 Sneak-and-Peek Search Warrants...... IV-44 Special Master...... X-23 Staleness...... IV-28 Standing to Challenge Search...... XI-5 Statement of Probable Cause ...... IV-1 Statements Against Penal Interest...... IV-14 Statements of Suspects and Accomplices...... IV-14 Statutory Grounds for Issuance...... I-1 Stolen Property ...... III-7 Sufficiency of Information...... IV-33 Surveillance Point Disclosure...... VI-24 Technical Mistakes -- Clerical Errors...... XI-19 Telephone Calls ...... III-6 Telephone Records and Computer Records in Possession of Foreign Corporations ...... II-11 Telephonically Authorized Search Warrants...... IX-1, IX-3 Tested Reliable Informants...... IV-10 Time Limit for Execution of Search Warrant...... X-1 Totality of the Circumstances Test ...... I-7, XI-1 Tracking Device...... II-6 Traversal of Warrant...... I-8 Truth-In-Evidence...... XI-1 Untested Informants...... IV-13 Use of Informants -- Totality of the Circumstances Test ...... IV-4 Use of Motorized Battering Ram...... X-10 Use of Photographs and Diagrams...... II-8 Using Evidence Collectors...... X-13 Vacant Premises...... X-9 Warrant Authorizes Single Search...... X-14 Warrantless Arrests While Serving Search Warrant...... X-25 Withdrawal of Consent ...... I-9
Index – Page 4
TABLE OF CASES
Aday v. Superior Court (1961) 55 Cal.2d 789...... XI-18 Aguilar v. Texas (1964) 378 U.S. 108...... IV-1, IV-3 Alderman v. United States (1966) 394 U.S. 164 ...... XI-6 Alexander v. Superior Court (1973) 9 Cal.3d. 387...... IV-28 Alvidres v. Superior Court (1970) 12 Cal.App.3d 575...... IV-37 Andresen v. Maryland (1976) 427 U.S. 463...... III-2, IV-30 Arizona v. Gant (2009) 556 U.S. 332 ...... I-13 Arizona v. Hicks (1987) 480 U.S. 321...... X-19 Atwater v. Lago Vista (2001) 532 U.S. 318 ...... I-13 Bailey v. Superior Court (1992) 11 Cal.App.4th 1107 ...... IV-14, IV-39 Bay v. Superior Court (1992) 7 Cal.App.4th 1022...... XI-16 Beach v. Superior Court (1970) 11 Cal.App.3d 1032...... I-11 Bowyer v. Superior Court (1974) 37 Cal.App.3d 151...... IX-2, IX-4 Brigham City v. Stuart (2006) 541 U.S. 398 ...... I-12 Brown v. Superior Court (1973) 34 Cal.App.3d 539...... IV-28, X-6, X-7 Buker v. Superior Court (1972) 25 Cal.App.3d 1085...... X-25 Burke v. Superior Court (1974) 39 Cal.App.3d 28...... IV-9 Burrows v. Superior Court (1974) 13 Cal.3d 238...... III-1, III-13, III-19 California v. Acevedo (1991) 500 U.S. 565 ...... I-13 California v. Carney (1985) 471 U.S. 386...... I-13 California v. Ciraolo (1986) 476 U.S. 207...... IV-39 Caligari v. Superior Court (1979) 98 Cal.App.3d 725...... IV-16, IV-23, IV-26 Carrington v. Superior Court (1973) 31 Cal.App.3d 635 ...... I-12 Charney v. Superior Court (1972) 27 Cal.App.3d 888 ...... I-5 Cleaver v. Superior Court (1979) 24 Cal.3d 297 ...... I-12, IV-43 Colorado v. Bertine (1987) 479 U.S. 367 ...... I-13 De Conti v. Superior Court (1971) 18 Cal.App.3d 907 ...... I-11 Dougherty v. City of Covina 654 F.3d 892 (2011)...... III-25 Duke v. Superior Court (1969) 1 Cal.3d 314...... X-4 Eleazer v. Superior Court (1970) 1 Cal.3d 847...... VI-20 Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537 ...... XI-24 Ferdin v. Superior Court (1974) 36 Cal.App.3d 774 ...... V-7, X-2 Flippo v. West Virginia (1999) 528 U.S. 11...... II-12, IV-42, IV-43 Florida v. Bostick (1991) 501 U.S. 429...... I-11 Florida v. Jimeno (1991) 500 U.S. 248...... I-11 Franks v. Delaware (1978) 438 U.S. 154...... I-7, I-8, I-9, IV-19, XI-10, XI-11, XI-12, XI-14 Galena v. Municipal Court (1965) 237 Cal.App.2d 581...... V-4 Goodlow v. Superior Court (1980) 101 Cal.App.3d 969...... VI-18 Gordon v. Superior Court (1997) 55 Cal.App.4th 1546 ...... XI-21 Greven v. Superior Court (1969) 71 Cal.2d 287...... X-4 Groh v. Ramirez (2004) 540 U.S. 551 ...... VIII-2 Gustafson v. Florida (1973) 414 U.S. 260...... I-13 Hanlon v. Berger (1999) 526 U.S. 808 ...... X-4, X-11 Harris v. United States (1968) 390 U.S. 234 ...... I-14 Hart v. Superior Court (1971) 21 Cal.App.3d 496 ...... IV-39 Hemler v. Superior Court (1975) 44 Cal.App.3d 430...... IV-28 Herring v. United States (2009) 555 U.S. 135 (129 S.Ct. 695) ...... I-14, XI-1
Table of Cases – Page 1
Hines v. Superior Court (1988) 203 Cal.App.3d 1231 ...... VI-25 Honore v. Superior Court (1969) 70 Cal.2d 162 ...... VI-4, VI-6, VI-14 Horton v. California (1990) 496 U.S. 128 ...... X-18 Hudson v. Michigan (2006) 547 U.S. 586...... X-4 Humphrey v. Appellate Division (2002) 29 Cal.4th 569...... I-14, IV-8 Illinois v. Gates (1983) 462 U.S. 213 ...... I-5, I-7, IV-1, IV-4, IV-13, IV-21, IV-26, IV-27, VII-2, XI-1 Illinois v. McArthur (2001) 531 U.S. 326 ...... X-2 Illinois v. Rodriguez (1990) 497 U.S. 177...... I-11 In re Benny S. (1991) 230 Cal.App.3d 102 ...... VI-9 In re Christopher R. (1989) 216 Cal.App.3d 901 ...... IV-33 In re Curtis (1989) 214 Cal.App.3d 1391 ...... X-19, X-21 In re Donald R. (1978) 85 Cal.App.3d 23...... V-7 In re Duncan (1987) 189 Cal.App.3d 1348...... III-25, IV-15, IV-42 In re Elizabeth G. (2001) 88 Cal.App.4th 496...... X-2 In re Jaime P. (2006) 40 Cal.4th 128 ...... I-10, I-11 In re Lance W. (1985) 37 Cal.3d 873 ...... I-13, V-1, XI-1, XI-5 In re Robert B. (1985) 172 Cal.App.3d 763 ...... VI-4, VI-8, VI-11 In re Sergio M. (1993) 13 Cal.App.4th 809...... VI-25 In re Tracy J. (1979) 94 Cal.App.3d 472 ...... VI-5, VI-18 Jones v. United States (1960) 362 U.S. 257 ...... IV-16, IV-33 Kaylor v. Superior Court (1980) 108 Cal.App.3d 451 ...... VII-1 Kentucky v. King (2011) 131 S.Ct 1849 ...... I-12 Ker v. California (1963) 374 U.S. 23...... X-8 Kyllo v. United States (2001) 533 U.S. 27 ...... III-14 Langford v. Superior Court (1988) 43 Cal.3d 21...... X-10 Lockridge v. Superior Court (1969) 275 Cal.App.2d 612 ...... III-1, III-7 Lohman v. Superior Court (1977) 69 Cal.App.3d 894 ...... X-17 Lorenzana v. Superior Court (1973) 9 Cal.3d 626...... IV-25 Malley v. Briggs (1986) 475 U.S. 335...... I-10 Mann v. Superior Court (1970) 3 Cal.3d 1 ...... X-5 Maryland v. Buie (1990) 494 U.S. 325...... IV-43 Massachusetts v. Sheppard (1984) 468 U.S. 981...... I-8, III-26, XI-16 Massachusetts v. Upton (1984) 466 U.S. 727...... XI-1 Michigan v. Fisher (2009) 558 U.S. ____ ...... I-12 Michigan v. Summers (1981) 452 U.S. 692 ...... X-15 Michigan v. Tyler (1978) 436 U.S. 499...... II-12, IV-43 Millender v. County of Los Angeles (9th Cir. 2009) 584 F.3d 1143...... III-9 Mincey v. Arizona (1978) 437 U.S. 385...... II-12, IV-42 Ming v. Superior Court (1970) 13 Cal.App.3d 206...... IV-15, IV-16 Minnesota v. Carter (1998) 525 U.S. 83...... XI-5, XI-6 Muehler v. Mena (2005) 544 U.S. 93 ...... X-12, X-15 Murray v. United States (1988) 487 U.S. 533 ...... X-3 Nunes v. Superior Court (1980) 100 Cal.App.3d 915 ...... V-8, X-11 Ohio v. Robinette (1996) 519 U.S. 33 ...... I-11 Overby v. Municipal Court (1981) 121 Cal.App.3d 377...... XI-8, XI-12 Parsley v. Superior Court (1973) 9 Cal.3d 934...... X-6 Payton v. New York (1980) 445 U.S. 573...... I-6 People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387 ...... II-11 People v Stipo (2011) 195 Cal.App.4th 664...... XI-20 People v. Acuna (1973) 35 Cal.App.3d 987 ...... VI-9
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People v. Aguilar (1966) 240 Cal.App.2d 502 ...... X-14 People v. Aguilera (1976) 61 Cal.App.3d 863...... VI-14, VI-16 People v. Aguirre (1970) 10 Cal.App.3d 884 ...... IV-15 People v. Aho (1985) 166 Cal.App.3d 984...... I-5, IV-5, IV-15, IV-32, IV-33, IV-36, XI-2 People v. Albritton (1982) 138 Cal.App.3d 79...... X-13 People v. Alcala (1992) 4 Cal.4th 742...... X-17 People v. Alderrou (1987) 191 Cal.App.3d 1074 ...... VI-9, VI-12, VI-17, VI-20, X-22 People v. Alvarez (1977) 73 Cal.App.3d 401...... VI-10, VI-14 People v. Alvarez (1989) 209 Cal.App.3d 660...... III-26, XI-19 People v. Amador (2000) 24 Cal 4th 387 ...... II-9, XI-17, XI-19 People v. Amos (1977) 70 Cal.App.3d 562 ...... X-7 People v. Anderson (1989) 210 Cal.App.3d 24 ...... XI-2, XI-4, XI-5 People v. Angulo (1988) 199 Cal.App.3d 370...... X-3 People v. Aston (1985) 39 Cal.3d 481...... IV-34 People v. Atkins (1982) 128 Cal.App.3d 564...... X-21 People v. Avalos (1996) 47 Cal.App.4th 1569 ...... XI-11 People v. Ayala (2000) 23 Cal.4th 225...... XI-5 People v. Bacigalupo (1991) 1 Cal.4th 103 ...... I-12 People v. Balassy (1973) 30 Cal.App.3d 614 ...... IV-13, IV-26 People v. Balint (2006) 138 Cal.App.4th 200...... III-4, III-17, III-20 People v. Barger (1974) 40 Cal.App.3d 662...... IV-12 People v. Barnes (1990) 219 Cal.App.3d 1468 ...... XI-2, XI-4 People v. Barrett (1969) 2 Cal.App.3d 142 ...... IV-9 People v. Bell (1996) 45 Cal.App.4th 1030...... I-4, IV-2, IV-31, X-11, XI-16, XI-20 People v. Belmontes (1988) 45 Cal.3d 744 ...... IV-16 People v. Bencomo (1985) 171 Cal.App.3d 1005 ...... IV-21, X-8 People v. Benjamin (1969) 71 Cal.2d 296...... IV-26 People v. Benjamin (1999) 77 Cal.App.4th 264...... XI-11 People v. Berry (1990) 224 Cal.App.3d 162 ...... X-13 People v. Black (1985) 173 Cal.App.3d 506 ...... I-13 People v. Blair (1979) 25 Cal.3d 640 ...... III-13, III-18 People v. Blardony (1998) 66 Cal.App.4th 791...... IV-37 People v. Blasquez (1985) 165 Cal.App.3d 408...... II-11 People v. Block (1971) 6 Cal.3d 239...... IV-43 People v. Blouin (1978) 80 Cal.App.3d 269...... VI-16 People v. Borunda (1974) 11 Cal.3d 523...... VI-10 People v. Box (1993) 14 Cal.App.4th 177...... XI-13 People v. Bracamonte (1975) 15 Cal.3d 394 ...... X-15 People v. Bradford (1997) 15 Cal.4th 1229...... III-2, X-17, X-19, X-21, XI-12, XI-18 People v. Braun (1973) 29 Cal.App.3d 949...... X-7 People v. Bravo (1987) 43 Cal.3d 600...... I-10 People v. Brewer (2000) 81 Cal.App.4th 442...... IV-16, XI-15 People v. Britton (2001) 91 Cal.App.4th 112 ...... XI-3, XI-22 People v. Brocard (1985) 170 Cal.App.3d 239...... X-1 People v. Brown (1985) 166 Cal.App.3d 1166...... IV-28 People v. Brown (1989) 207 Cal.App.3d 1541...... VI-16 People v. Brownlee (1977) 74 Cal.App.3d 921 ...... VI-8, VI-13 People v. Bruni (1972) 25 Cal.App.3d 196 ...... V-9 People v. Calabrese (2002) 101 Cal.App.4th 79...... X-11 People v. Callen (1987) 194 Cal.App.3d 558 ...... VI-24
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People v. Camarella (1991) 54 Cal.3d 592 ...... XI-16 People v. Camilleri (1990) 220 Cal.App.3d 1199...... X-2 People v. Carpenter (1997) 15 Cal.4th 312...... I-13, IV-19, X-19 People v. Carpenter (1999) 21 Cal.4th 1016...... III-2 People v. Carrington (2009) 47 Cal.4th 145...... IV-29, IV-40, X-10 People v. Caserta (1971) 14 Cal.App.3d 484...... XI-23 People v. Castaneda (1976) 58 Cal.App.3d 165 ...... X-9 People v. Castillo (1969) 274 Cal.App.2d 508 ...... VI-11 People v. Chapman (1984) 36 Cal.3d 98 ...... III-15, IV-20, IV-21 People v. Chavers (1983) 33 Cal.3d 462 ...... I-12 People v. Chavez (1972) 27 Cal.App.3d 883...... VII-2 People v. Cheatham (1971) 21 Cal.App.3d 675 ...... VI-21 People v. Childress (1979) 99 Cal.App.3d 36 ...... IV-14, IV-32, IV-38 People v. Christian (1972) 27 Cal.App.3d 554...... IV-15, XI-9 People v. Chung (2010) 185 Cal.App.4th 247...... I-12 People v. Claeys (2002) 97 Cal.App.4th 55...... XI-6 People v. Clayton (1993) 18 Cal.App.4th 440...... X-1 People v. Cleland (1990) 225 Cal.App.3d 388 ...... IV-34, X-1 People v. Cletcher (1982) 132 Cal.App.3d 878 ...... IV-30, V-8 People v. Cobb (1983) 146 Cal.App.3d 290...... IV-18 People v. Colvin (1971) 19 Cal.App.3d 14...... X-7 People v. Contreras (1989) 210 Cal.App.3d 450 ...... XI-7 People v. Cook (1978) 22 Cal.3d 67...... IV-3, XI-11, XI-12 People v. Cooks (1983) 141 Cal.App.3rd 224...... IV-30 People v. Costello (1988) 204 Cal.App.3d 431 ...... IV-1, XI-12 People v. Couch (1979) 97 Cal.App.3d 377 ...... VII-5, X-24 People v. Crabb (1987) 191 Cal.App.3d 390...... IV-19, XI-13, XI-14 People v. Curry (1985) 165 Cal.App.3d 349 ...... XI-19 People v. Dachino (2003) 111 Cal.App.4th 1429...... XI-9 People v. Daggs (2005) 133 Cal.App.4th 361 ...... XI-9 People v. Daily (1958) 157 Cal.App.2d 649...... III-3, V-9 People v. Danielson (1992) 3 Cal.3d 691 ...... XI-6 People v. Dantzler (1988) 206 Cal.App.3d 289...... I-6, XI-16 People v. Dasilva (1988) 207 Cal.App.3d 43 ...... XI-8 People v. Daughhetee (1985) 165 Cal.App.3d 574...... X-2 People v. De La Plane (1979) 88 Cal.App.3d 223...... X-7 People v. Dees (1990) 221 Cal.App.3d 588...... XI-9 People v. Dethloff (1992) 9 Cal.App.4th 620...... XI-23 People v. Diaz (2011) 51 Cal.4th 84...... I-13 People v. Dickenson (1974) 43 Cal.App.3d 1034 ...... IV-34 People v. Dimitrov (1995) 33 Cal.App.4th 18...... VI-13, VI-17 People v. Drews (1989) 208 Cal.App.3d 1317 ...... XI-3, XI-7 People v. Drieslein (1985) 170 Cal.App.3d 591...... III-7, IV-45, X-22 People v. Dumas (1973) 9 Cal.3d 871 ...... II-2, II-6, IV-10, IV-11, IV-12, IV-15, IV-28 People v. Duncan (1981) 115 Cal.App.3d 418 ...... X-21 People v. Duncan (1986) 42 Cal.3d 91...... I-12, IV-35 People v. Duval (1990) 221 Cal.App.3d 1105...... VI-3, VI-9, VI-11, VI-14, XI-11 People v. Easley (1983) 34 Cal.3d 858...... I-5, X-17, X-20, X-21 People v. Egan (1981) 141 Cal.App.3d 798 ...... XI-19 People v. Elliott (1978) 77 Cal.App.3d 673...... II-2
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People v. Emanuel (1978) 87 Cal.App.3d 205 ...... I-5, X-24 People v. Escobedo (1973) 35 Cal.App.3d 32 ...... I-11 People v. Estrada (2003) 105 Cal.App.4th 783 ...... VI-3 People v. Farley (2009) 46 Cal.4th 1053, 1101 ...... III-2 People v. Fernandez (1989) 212 Cal.App.3d 984...... IV-36, IV-39, XI-2, XI-16 People v. Flannery (1985) 164 Cal.App.3d 1112 ...... VI-2, VI-18 People v. Fleming (1981) 29 Cal.3d 698 ...... I-5, IV-15, IV-16 People v. Flores (1979) 100 Cal.App.3d 221...... V-3, V-4, V-6, V-7 People v. Fortune (1988) 197 Cal.App.3d 941 ...... IX-6 People v. Foster (1988) 201 Cal.App.3d 20...... IV-16 People v. Frank (1985) 38 Cal.3d 711 ...... III-2, IV-30, IV-41, X-12, X-13, X-17 People v. Frederick (2006) 142 Cal.App.4th 400 ...... X-16 People v. Freeman (1990) 219 Cal.App.3d 894...... IV-39, X-3 People v. Freeny (1974) 37 Cal.App.3d 20 ...... IV-24, X-2, X-25 People v. Fried (1989) 214 Cal.App.3d 1309 ...... VI-8, VI-17 People v. Frye (1998) 18 Cal.4th 894...... I-12 People v. Fulkman (1991) 234 Cal.App.3d 555 ...... X-15 People v. Gabriel (1987) 188 Cal.App.3d 1261...... X-16 People v. Galante (1983) 143 Cal.App.3d 709 ...... VI-12, VI-14, VI-16, VI-17, VI-20 People v. Galland (2004) 116 Cal.App.4th 489...... XI-17 People v. Galland (2008) 45 Cal.4th 354...... VI-24, XI-21 People v. Gallant (1990) 225 Cal.App.3d 200...... X-16 People v. Gallardo (2005) 130 Cal.App.4th 234 ...... I-11 People v. Gallegos (2002) 96 Cal.App.4th 612 ...... II-2, X-17, X-20, X-21 People v. Gallo (1981) 127 Cal.App.3d 828...... X-5 People v. Galvan (1992) 5 Cal.App.4th 866...... I-6 People v. Garcia (1967) 67 Cal.2d 830...... VI-5, VI-8, VI-9, VI-14 People v. Garcia (1970) 13 Cal.App.3d 486...... VI-9 People v. Garcia (2003) 111 Cal.App.4th 715...... IV-35 People v. Garza (1995) 32 Cal.App.4th 148...... VI-25 People v. Gentry (1992) 7 Cal.App.4th 1255 ...... X-3 People v. Gesner (1988) 202 Cal.App.3d 581 ...... X-3 People v. Gibson (2001) 90 Cal.App.4th 371...... IV-31 People v. Glance (1989) 209 Cal.App.3d 836 ...... IV-36 People v. Glaser (1995) 11 Cal.4th 354...... X-15, X-16 People v. Glass (1976) 56 Cal.App.3d 368...... V-9 People v. Glenn (1997) 56 Cal.App.4th 886...... XI-4 People v. Glenos (1992) 7 Cal.App.4th 1201 ...... IV-1, IV-35 People v. Goldberg (1984) 161 Cal.App.3d 170 ...... I-11 People v. Goliday (1973) 8 Cal.3d 771...... VI-4, VI-5, VI-10, VI-14, VI-15, VI-20 People v. Gomez (2004) 117 Cal.App.4th 531...... I-13 People v. Gonzalez (1971) 14 Cal.App.3d 881...... X-7 People v. Gonzalez (1990) 51 Cal.3d 1179 ...... I-10, IV-34, IV-39, VIII-3 People v. Gooch (1983) 139 Cal.App.3d 342...... VI-17 People v. Goodall (1982) 131 Cal.App.3d 129...... III-4, III-17 People v. Goodman (1971) 20 Cal.App.3d 284...... VI-21 People v. Gotfried (2003) 107 Cal.App.4th 254...... XI-17 People v. Govea (1965) 235 Cal.App.2d 285 ...... V-3 People v. Grant (1969) 1 Cal.App.3d 563 ...... V-2 People v. Gray (1976) 63 Cal.App.3d 282...... IV-10, IV-11, IV-39
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People v. Green (1981) 117 Cal.App.3d 199...... IV-14, IV-26, IV-36, VI-11, VI-12 People v. Grossman (1971) 19 Cal.App.3d 8 ...... II-1, II-2 People v. Guillebeau (1980) 107 Cal.App.3d 531 ...... X-21, X-23, X-24 People v. Gurtenstein (1977) 69 Cal.App.3d 441...... I-11 People v. Haider (1995) 34 Cal.App.4th 661...... VI-25 People v. Hale (2005) 133 Cal.App.4th 942...... I-4 People v. Hall (1971) 3 Cal.3d 992...... IV-34, X-7 People v. Hall (1974) 42 Cal.App.3d 817...... IV-16 People v. Hambarian (1973) 31 Cal.App.3d 643...... VI-10, VI-14 People v. Hamilton (1985) 168 Cal.App.3d 1058...... I-9 People v. Hansborough (1988) 199 Cal.App.3d 579 ...... IV-33, IV-36 People v. Hansel (1992) 1 Cal.4th 1211 ...... XI-4 People v. Hardeman (1982) 137 Cal.App.3d 823...... VI-4, VI-7, VI-8, VI-11, VI-14, VI-19 People v. Harvey (1991) 233 Cal.App.3d 1206...... III-3 People v. Harwood (1977) 74 Cal.App.3d 460...... III-7, IV-45 People v. Haslouer (1978) 79 Cal.App.3d 818 ...... IV-42 People v. Haybron (1980) 108 Cal.App.3d 31...... IV-36 People v. Head (1994) 30 Cal.App.4th 954 ...... VII-5, X-24 People v. Helmquist (1984) 161 Cal.App.3d 609...... IV-19, XI-13, XI-16 People v. Hepner (1994) 21 Cal.App.4th 761...... III-25 People v. Hernandez (1974) 43 Cal.App.3d 581 ...... IV-28, IV-34, X-1 People v. Hernandez (1988) 199 Cal.App.3d 1182 ...... XI-6 People v. Hernandez (1994) 30 Cal.App.4th 919 ...... IV-30, IV-35 People v. Hill (1974) 12 Cal.3d 731 ...... I-12, IV-3, IV-8, IV-43, X-17, X-18, X-19 People v. Hirata (2009) 175 Cal.App.4th 1499 ...... IV-29, XI-17 People v. Hobbs (1994) 7 Cal.4th 948...... I-9, VI-2, VI-4, VI-21, VII-2, VII-4, XI-17 People v. Hochanadel (2009) 176 Cal.App.4th 997 ...... XI-16 People v. Hogan (1969) 71 Cal.2d 888...... IV-23 People v. Holland (1978) 23 Cal.App.3d 77...... X-25 People v. Howard (1976) 55 Cal.App.3d 373...... III-4 People v. Howard (1976) 63 Cal.App.3d 249...... X-21 People v. Howard (1993) 18 Cal.App.4th 1544...... X-9, X-13 People v. Huerta (1990) 218 Cal.App.3d 744...... X-16 People v. Hulland (2003) 110 Cal.App.4th 1646...... IV-29, XI-17 People v. Icenogle (1985) 164 Cal.App.3d 620...... X-25, XI-24 People v. Ingram (1981) 122 Cal.App.3d 673 ...... I-11 People v. Ingram (1993) 16 Cal.App.4th 1745...... X-16 People v. Jackson (1970) 14 Cal.App.3d 57...... X-19 People v. Jackson (1992) 7 Cal.App.4th 1367...... XI-4, XI-23 People v. Jacobs (1987) 43 Cal.3d 472...... I-6 People v. James (1977) 19 Cal.3d 99...... I-11 People v. James (1990) 219 Cal.App.3d 414...... X-14 People v. Johnson (1971) 21 Cal.App.3d 235 ...... IV-5, IV-24, IV-33, IV-34 People v. Johnson (1984) 162 Cal.App.3d 1003 ...... XI-6, XI-7 People v. Johnson (1990) 220 Cal.App.3d 742 ...... IV-27 People v. Johnson (2006) 38 Cal.4th 717 ...... XI-4 People v. Jordan (1984) 155 Cal.App.3d 769...... XI-19 People v. Joubert (1983) 140 Cal.App.3d 946...... II-12, XI-18 People v. Juan (1985) 175 Cal.App.3d 1064 ...... XI-9 People v. Kain (1989) 212 Cal.App.3d 816...... XI-5
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People v. Karmelich (1979) 92 Cal.App.3d 452...... VI-11 People v. Kashini (1983) 143 Cal.App.3d 77 ...... XI-12 People v. Keener (1961) 55 Cal.2d 711...... VI-2 People v. Kershaw (1983) 147 Cal.App.3d 750 ...... IV-32, IV-36, IV-38 People v. Kibblewhite (1986) 178 Cal.App.3d 783...... X-22 People v. Kirk (1979) 99 Cal.App.3d 89 ...... VII-5, X-24 People v. Koch (1989) 209 Cal.App.3d 770...... X-3 People v. Koury (1989) 214 Cal.App.3d 676 ...... XI-6 People v. Kraft (2000) 23 Cal.4th 978...... I-6, III-2, X-13, X-18, X-21, XI-2 People v. Kurland (1980) 28 Cal.3d 376 ...... IV-19, XI-12, XI-13 People v. Lamas (1991) 229 Cal.App.3d 560...... X-3 People v. Lamb (1972) 24 Cal.App.3d 378 ...... VI-15, VI-19 People v. Lanfrey (1988) 204 Cal.App.3d 491...... VI-5 People v. Larkin (1987) 194 Cal.App.3d 650...... III-14, III-18 People v. Lawrence (1972) 25 Cal.App.3d 213...... X-7 People v. Layne (1965) 235 Cal.App.2d 188...... X-18 People v. LeBlanc (1997) 60 Cal.App.4th 157...... I-14 People v. Lee (1971) 20 Cal.App.3d 982...... X-7 People v. Lee (1985) 164 Cal.App.3d 830...... VI-17 People v. Lenart (2004) 32 Cal.4th 1107...... X-18, X-21 People v. Leonard (1996) 50 Cal.App.4th 878 ...... I-4 People v. Lester (1980) 101 Cal.App.3d 613...... II-10, IV-36, IV-41 People v. Levine (1984) 152 Cal.App.3d 1058 ...... IV-34 People v. Lewis (2009) 172 Cal.App.4th 1426...... VI-25 People v. Lim (2000) 85 Cal.App.4th 1289...... XI-16 People v. Livermore (1973) 30 Cal.App.3d 1073...... X-9 People v. Lizarraga (1990) 219 Cal.App.3d 476 ...... VI-11, VI-13 People v. Lombera (1989) 210 Cal.App.3d 29 ...... IV-9, IV-12, IV-23 People v. Long (1974) 42 Cal.App.3d 751 ...... VI-14, VI-15 People v. Lopez (1968) 269 Cal.App.2d 461...... X-8, X-9 People v. Lopez (1985) 173 Cal.App.3d 125...... IV-19, V-3, V-4, V-8, XI-13, XI-16 People v. Lopez (1986) 181 Cal.App.3d 1101...... IV-11 People v. Lopez (1993) 12 Cal.App.4th 1732 ...... XI-22 People v. Love (1985) 168 Cal.App.3d 104 ...... I-5, IV-13, IV-16, IV-26, IV-36, XI-2 People v. Lovett (1978) 82 Cal.App.3d 527 ...... II-9, X-9, XI-19 People v. Lowery (1983) 145 Cal.App.3d 902 ...... III-8, V-4, V-6, V-7, X-19 People v. Luera (2001) 86 Cal.App.4th 513 ...... VI-13 People v. Luttenberger (1990) 50 Cal.3d 1...... VI-2, XI-12, XI-17 People v. MacAvoy (1984) 162 Cal.App.3d 746...... I-4, II-12, XI-16 People v. Machupa (1994) 7 Cal.4th 614 ...... X-3, XI-15 People v. Mack (1977) 66 Cal.App.3d 839 ...... II-2 People v. Madrid (1992) 7 Cal.App.4th 1888...... XI-8, XI-12, XI-13, XI-15 People v. Maestas (1988) 204 Cal.App.3d 1208...... XI-16 People v. Mardian (1975) 47 Cal.App.3d 16 ...... IV-15, IV-27 People v. Martin (1969) 2 Cal.App.3d 121...... VI-4 People v. Martinez (2005) 132 Cal.App.4th 233 ...... XI-17 People v. Martins (1991) 228 Cal.App.3d 1632 ...... XI-5, XI-6 People v. Mason (1971) 5 Cal.3d 759...... I-10 People v. Mathews (1994) 25 Cal.App.4th 89...... I-10, X-10 People v. Mayberry (1982) 31 Cal.3d 335...... IV-36, IV-41
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People v. Mayen (1922) 188 Cal. 237 ...... III-1 People v. Mayer (1987) 188 Cal.App.3d 1101 ...... IV-10, IV-11, IV-19, X-8 People v. Mays (1998) 67 Cal.App.4th 969...... X-9 People v. McCabe (1983) 144 Cal.App.3d 827 ...... X-13 People v. McCarter (1981) 117 Cal.App.3d 894 ...... I-9, V-7, X-8, X-25 People v. McCarthy (1978) 79 Cal.App.3d 547 ...... VI-9, VI-16, X-7 People v. McClure (1974) 39 Cal.App.3d 64 ...... I-11 People v. McCoy (1970) 13 Cal.App.3d 6...... VI-4, VI-10, VI-14, VI-20 People v. McDaniels (1994) 21 Cal.App.4th 1560...... IV-31 People v. McFadin (1982) 127 Cal.App.3d 751 ...... IV-9, IV-11, IV-27 People v. McGraw (1981) 119 Cal.App.3d 582 ...... X-13 People v. McKay (2002) 27 Cal.4th 601 ...... I-13 People v. McKim (1989) 214 Cal.App.3d 766 ...... IV-39 People v. McKunes (1975) 51 Cal.App.3d 487 ...... III-15, IV-20 People v. McNabb (1991) 228 Cal.App.3d 462...... II-2, II-5 People v. Medina (1985) 165 Cal.App.3d 11 ...... IV-36 People v. Mendoza (1986) 176 Cal.App.3d 1127...... XI-8 People v. Mesa (1975) 14 Cal.3d 466...... I-7, IV-28, IV-33 People v. Messina (1985) 165 Cal.App.3d 937 ...... I-12 People v. Metzger (1971) 22 Cal.App.3d 338 ...... IV-11 People v. Meyer (1986) 183 Cal.App.3d 1150 ...... III-12, IV-40 People v. Meza (1984) 162 Cal.App.3d 25...... XI-20 People v. Mikesell (1996) 46 Cal.App.4th 1711 ...... IV-28, IV-36, IV-38 People v. Miller (1976) 60 Cal.App.3d 849...... X-20, X-21 People v. Miller (1978) 85 Cal.App.3d 194...... II-4, IV-15, IV-29, IV-39, IV-40, VIII-3 People v. Miller (1987) 196 Cal.App.3d 846...... X-17, X-19 People v. Minder (1996) 46 Cal.App.4th 1784...... II-2 People v. Montgomery (1988) 205 Cal.App.3d 1011...... VI-25 People v. Morgan (2005) 125 Cal.App.4th 935...... III-6, III-7, IV-45, X-22 People v. Morrongiello (1983) 145 Cal.App.3d 1 ...... X-21 People v. Murphy (1974) 42 Cal.App.3d 81...... IV-13, XI-22 People v. Murray (1976) 64 Cal.App.3d 342...... X-9 People v. Murray (1978) 77 Cal.App.3d 305...... III-1, X-19 People v. Murtha (1993) 14 Cal.App.4th 1112...... IV-26 People v. Navarro (2006) 138 Cal.App.4th 146 ...... XI-21 People v. Nealy (1991) 228 Cal.App.3d 447...... III-6, IV-45, X-22 People v. Nece (1984) 160 Cal.App.3d 285 ...... III-13, III-18 People v. Neer (1986) 177 Cal.App.3d 991...... X-4 People v. Neighbors (1990) 223 Cal.App.3d 1115...... XI-3 People v. Nelson (1981) 126 Cal.App.3d 978 ...... XI-22 People v. Nicolaus (1991) 54 Cal.3d 551 ...... III-3, III-17, X-20 People v. Nosler (1984) 151 Cal.App.3d 125...... III-13, III-18 People v. O’Leary (1977) 70 Cal.App.3d 323...... IV-5, IV-37 People v. Ooley (1985) 169 Cal.App.3d 197...... XI-6, XI-7 People v. Oppel (1990) 222 Cal.App.3d 1146...... VI-3, VI-14 People v. Ortiz (1995) 32 Cal.App.4th 286 ...... I-14 People v. Osuna (1986) 187 Cal.App.3d 845 ...... I-12 People v. Otte (1989) 214 Cal.App.3d 1522...... VI-2 People v. Pacheco (1972) 27 Cal.App.3d 70 ...... VI-2, VI-16, VI-17, VI-20 People v. Paris (1975) 48 Cal.App.3d 766...... IV-8
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People v. Patterson (1979) 94 Cal.App.3d 456...... X-6 People v. Peck (1974) 38 Cal.App.3d 993...... IX-1 People v. Pellegrin (1978) 78 Cal.App.3d 913 ...... IV-39 People v. Phillips (1958) 163 Cal.App.2d 541 ...... X-14 People v. Pompa (1989) 212 Cal.App.3d 1308 ...... V-9, X-9, X-22 People v. Potter (2005) 128 Cal.App.4th 611...... I-12 People v. Pressey (2002) 102 Cal.App.4th 1178 ...... IV-35, XI-16 People v. Prewitt (1959) 52 Cal.2d 330...... IV-10 People v. Ramey (1976) 16 Cal.3d 263 ...... I-9, IV-8, X-25 People v. Ramirez (1984) 162 Cal.App.3d 70 ...... I-5, IV-27, IV-36, XI-2 People v. Ramos (1982) 30 Cal.3d 533 ...... IX-1, IX-4, X-21 People v. Ratliff (1986) 41 Cal.3d 675...... I-11 People v. Ray (1999) 21 Cal.4th 464...... I-12 People v. Reel (1979) 100 Cal.App.3d 415 ...... VI-8, VI-13, VI-14, VI-16 People v. Remiro (1979) 89 Cal.App.3d 809...... III-1 People v. Reyes (1974) 12 Cal.3d 486...... I-11 People v. Reyes (1990) 223 Cal.App.3d 1218...... X-15 People v. Reyes (1998) 19 Cal.4th 743...... I-11 People v. Reynolds (1982) 137 Cal.App.3d 1016 ...... VI-6, VI-18 People v. Rice (1970) 10 Cal.App.3d 730 ...... IV-25 People v. Rios (1976) 16 Cal.3d 351 ...... I-14 People v. Rios (1988) 205 Cal.App.3d 833 ...... X-18 People v. Roberts (1956) 47 Cal.2d 374...... I-12 People v. Rochen (1988) 203 Cal.App.3d 684 ...... IV-34 People v. Rodriguez (1977) 71 Cal.App.3d 547...... X-15 People v. Rodriguez-Fernandez (1991) 235 Cal.App.3d 543...... III-26, IV-35, X-11, XI-16 People v. Rogers (1976) 54 Cal.App.3d 508 ...... VI-9 People v. Rogers (1986) 187 Cal.App.3d 1001 ...... III-3, III-10 People v. Romero (1996) 43 Cal.App.4th 440...... IV-35 People v. Romo (1988) 198 Cal.App.3d 581...... IV-39, X-6 People v. Rooney (1985) 175 Cal.App.3d 634 ...... IV-13 People v. Root (1985) 172 Cal.App.3d 774...... XI-6 People v. Rudin (1978) 77 Cal.App.3d 139...... X-8 People v. Ruiz (1990) 217 Cal.App.3d 574...... I-6 People v. Rushing (1989) 209 Cal.App.3d 618 ...... III-3, III-10, III-17, X-19 People v. Russell (1987) 195 Cal.App.3d 186...... X-11, X-19 People v. Ruster (1976) 16 Cal.3d 690...... I-5, I-11 People v. Saldana (1984) 157 Cal.App.3d 443...... VI-11 People v. Salih (1985) 173 Cal.App.3d 1009 ...... IV-37 People v. Salzman (1982) 131 Cal.App.3d 676...... XI-19 People v. Sanchez (1972) 24 Cal.App.3d 664 ...... IV-18, IV-32, VII-4, X-1 People v. Sanchez (1981) 116 Cal.App.3d 720 ...... II-6, IV-24, X-2 People v. Sanchez (1982) 131 Cal.App.3d 323 ...... IX-1, IX-7 People v. Sanders (2003) 31 Cal.4th 318...... I-11 People v. Sandlin (1991) 230 Cal.App.3d 1310 ...... IV-33, IV-35, XI-2, XI-11 People v. Sandoval (1966) 65 Cal.2d 303...... IV-45, X-22 People v. Schad (1971) 21 Cal.App.3d 201...... X-4, X-15 People v. Schilling (1987) 188 Cal.App.3d 1021 ...... III-9 People v. Schmidt (1978) 83 Cal.App.3d 968 ...... IV-9, IV-13 People v. Schreier (1985) 158 Cal.App.3d Supp. 20 ...... X-19
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People v. Schroeder (1979) 96 Cal.App.3d 730 ...... VII-5, X-2, X-23 People v. Schulle (1975) 51 Cal.App.3d 809...... IV-9 People v. Scoma (1969) 71 Cal.2d 332...... IV-9 People v. Scott (1993) 17 Cal.App.4th 405 ...... XI-8 People v. Seaton (2001) 26 Cal.4th 598 ...... X-2 People v. Senkir (1972) 26 Cal.App.3d 411 ...... III-3, IV-8, IV-23 People v. Sheridan (1969) 2 Cal.App.3d 483 ...... IV-14, IV-26 People v. Simpson (1998) 65 Cal.App.4th 854 ...... X-12, X-16 People v. Siripongs (1988) 45 Cal.3d 548 ...... V-4 People v. Smead (1985) 175 Cal.App.3d 1101...... I-5 People v. Smith (1976) 17 Cal.3d 845...... IV-9 People v. Smith (1986) 180 Cal.App.3d 72 ...... IV-39 People v. Smith (1994) 21 Cal.App.4th 942...... II-2 People v. Soldoff (1980) 112 Cal.App.3d 1...... I-12 People v. Sousa (1993) 18 Cal.App.4th 549...... IV-38 People v. Spears (1991) 228 Cal.App.3d 1...... I-5, I-7, IV-1 People v. Stanislawski (1986) 180 Cal.App.3d 748 ...... IV-39, XI-8 People v. Stegman (1985) 164 Cal.App.3d 936...... I-12 People v. Stevenson (1976) 62 Cal.App.3d 915 ...... VII-4, X-23 People v. Stewart (1983) 140 Cal.App.3d 11 ...... IV-27, IV-41 People v. Stillwell (2011) 197 Cal.App.4th 996...... IV-35 People v. Stipo (2011) 195 Cal.App.4th 664...... IV-30, IV-32 People v. Stokes (1990) 224 Cal.App.3d 715...... X-19 People v. Superior Court (Bauman & Rose) 37 Cal.App.4th 1757 ...... II-11 People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463 ...... IV-25, IV-26, IV-29, IV-30 People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal.App.3d 648...... XI-24 People v. Superior Court (Clements) (1988) 200 Cal.App.3d 491 ...... X-25 People v. Superior Court (Drummer) (1988) 200 Cal.App.3d 105...... X-25 People v. Superior Court (Evans) (1970) 11 Cal.App.3d 887 ...... IV-38 People v. Superior Court (Fall) (1973) 32 Cal.App.3d 788...... XI-11 People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218 ...... II-9, XI-19 People v. Superior Court (Irwin) (1973) 33 Cal.App.3d 475 ...... X-2 People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798...... XI-4 People v. Superior Court (Johnson) (1972) 6 Cal.3d 704...... I-7, IV-1, IV-11, IV-13, IV-21, IV-26 People v. Superior Court (Laff) (2001) 25 Cal.4th 703...... III-14, XI-20 People v. Superior Court (Loas et. al) (1972) 28 Cal.App.3d 600...... XI-24 People v. Superior Court (Mack) (1977) 66 Cal.App.3d 839...... X-20 People v. Superior Court (Marcil) (1972) 27 Cal.App.3d 404 ...... IV-37 People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363...... III-17 People v. Superior Court (Meyers) (1979) 25 Cal.3d 67...... III-8, X-11 People v. Superior Court (Moore) (1980) 104 Cal.App.3d 1001 ...... X-11 People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85...... II-6, X-1 People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609 ...... X-7 People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76...... XI-19 People v. Superior Court (Valdez) (1983) 35 Cal.3d 11...... I-12 People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69 ...... III-1, IV-12 People v. Swan (1986) 187 Cal.App.3d 1010...... V-1 People v. Tenney (1972) 25 Cal.App.3d 16...... II-8, X-14 People v. Terrones (1989) 212 Cal.App.3d 139 ...... IV-9, IV-14 People v. Terry (1969) 70 Cal.2d 410...... IV-25
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People v. Thomas (1975) 45 Cal.App.3d 749...... VI-6, VI-14, VI-19, VI-20 People v. Thomas (1980) 112 Cal.App.3d 980...... IV-32, IV-38 People v. Thompson (1979) 89 Cal.App.3d 425 ...... IV-28, IV-34, VI-11, X-8 People v. Thompson (1988) 205 Cal.App.3d 1503 ...... XI-5, XI-6 People v. Thurman (1989) 209 Cal.App.3d 817...... X-15 People v. Thuss (2003) 107 Cal.App.4th 221...... IV-35, IV-39 People v. Tockgo (1983) 145 Cal.App.3d 635 ...... III-7 People v. Tolliver (1975) 53 Cal.App.3d 1036...... VI-7 People v. Trover (2011) 51 Cal.4th 599 ...... I-12 People v. Tuadles (1992) 7 Cal.App.4th 1777...... IV-5 People v. Ulloa (2002) 101 Cal.App.4th 1000...... III-1, III-20 People v. Valdez (1987) 196 Cal.App.3d 799 ...... X-15 People v. Valdivia (1980) 114 Cal.App.3d 24...... X-4 People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163...... III-7, IV-45, X-22 People v. Varghese (2008) 162 Cal.App.4th 1084 ...... III-4, III-17, III-20 People v. Veasey (1979) 98 Cal.App.3d 779...... IV-5, IV-7, IV-34 People v. Veloz (1971) 22 Cal.App.3d 499 ...... X-8 People v. Ventura (1991) 1 Cal.App.4th 1515...... X-22 People v. Vollheim, Jr. (1978) 87 Cal.App.3d 538...... X-7 People v. Wachter (1976) 58 Cal.App.3d 911 ...... XI-19 People v. Wagner (1982) 138 Cal.App.3d 473...... VI-9, VI-16 People v. Walker (1967) 250 Cal.App.2d 214...... III-3 People v. Walker (1969) 276 Cal.App.2d 39...... IV-25 People v. Walker (1991) 230 Cal.App.3d 230...... VI-25 People v. Ward (1972) 27 Cal.App.3d 218...... I-11 People v. Warner (1969) 270 Cal.App.2d 900...... III-6, IV-45 People v. Warren (1990) 219 Cal.App.3d 619...... IV-37 People v. Watson (1977) 75 Cal.App.3d 592 ...... V-3, V-4 People v. Watson (1979) 89 Cal.App.3d 376 ...... IV-34, X-7 People v. Weagley (1990) 218 Cal.App.3d 569 ...... II-2 People v. Webb (1993) 6 Cal.4th 494...... IV-19, IV-30, XI-13 People v. Weiss (1999) 20 Cal.4th 1073...... XI-15 People v. Wilkins (1993) 14 Cal.App.4th 761...... I-11, I-12 People v. Wilks (1978) 21 Cal.3d 460...... VI-4, VI-7, VI-20 People v. Williams (1973) 30 Cal.App.3d 502...... XI-8, XI-13 People v. Williams (1988) 198 Cal.App.3d 873...... X-13, X-18 People v. Williams (1989) 213 Cal.App.3d 1186...... XI-2, XI-4 People v. Williams (1992) 3 Cal.App.4th 1535...... III-4, III-17, XI-7 People v. Williams (1999) 20 Cal.4th 119...... XI-3, XI-22 People v. Wilson (1967) 256 Cal.App.2d 411...... X-14 People v. Wilson (1986) 182 Cal.App.3d 742...... I-8, I-9, XI-10, XI-14 People v. Wilson (1987) 191 Cal.App.3d 161...... IV-39 People v. Ybarra (1991) 233 Cal.App.3d 1353 ...... XI-6 People v. Young (1970) 12 Cal.App.3d 878...... V-2 People v. Young (1976) 62 Cal.App.3d 49...... XI-22 People v. Zepeda (1980) 102 Cal.App.3d 1...... IV-13, V-9 People v. Zichwic (2001) 94 Cal.App.4th 944 ...... IV-25 PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal.App.4th 1687 ...... II-10 Rakas v. Illinois (1978) 439 U.S. 128...... XI-5 Rawlings v. Kentucky (1980) 448 U.S. 98 ...... XI-6
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Richards v. Wisconsin (1997) 520 U.S. 385...... X-6, X-7 Rodriguez v. Superior Court (1988) 199 Cal.App.3d. 1453...... V-1, V-9, XI-16 Samson v. California (2006) 547 U.S. 843...... I-11 Schneckloth v. Bustamonte (1973) 412 U.S. 218...... I-11 Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720 ...... III-17 Segura v. United States (1984) 468 U.S. 796 ...... X-3 Skelton v. Superior Court (1969) 1 Cal.3d 144 ...... I-4, IV-3, IV-16, IV-17, X-17, X-18 Smith v. Maryland (1979) 442 U.S. 736...... IV-20 Spinelli v. United States (1969) 393 U.S. 410...... IV-1 Stansbury v. California (1994) 511 U.S. 318...... X-12 Steagald v. United States (1981) 451 U.S. 204...... I-6 Steele v. United States (1925) 267 U.S. 498...... II-1 Sternberg v. Superior Court (1974) 41 Cal.App.3d 281 ...... XI-19 Tamborino v. Superior Court (1986) 41 Cal.3d 919...... I-12, IV-43 Texas v. Brown (1983) 460 U.S. 730 ...... I-14 Theodor v. Superior Court (1972) 8 Cal.3d 77...... I-5, VI-2, XI-11 Thompson v. Louisiana (1984) 469 U.S. 17...... IV-42 Thompson v. Superior Court (1977) 70 Cal.App.3d 101...... III-1, III-7 Tidwell v. Superior Court (1971) 17 Cal.App.3d 780 ...... II-9, V-6, XI-19 Toubas v. Superior Court (1981)114 Cal.App.3d 378...... IV-34 Tuttle v. Superior Court (1981) 120 Cal.App.3d 320 ...... V-1, V-3 Twiggs v. Superior Court (1983) 34 Cal.3d 360 ...... VI-20, VI-21 United States v. Adjani 452 F.3d 1140 (9th Cir. 2006 ...... I-4, III-21 United States v. Baca (1973) 480 F.2d 199 ...... X-15 United States v. Banks (2003) 540 U.S. 31 ...... X-5, X-6 United States v. Drayton (2002) 536 U.S. 194 ...... I-11 United States v. Freitas (9th Cir. 1986) 800 F.2d 1451 ...... IV-44 United States v. Gantt 194 F. 3d 987 (9th Cir. 1999) ...... X-12 United States v. Giberson 527 F.3d 882 (9th Circ. 2008)...... III-22 United States v. Grubbs (2006) 547 U.S. 90...... I-5, I-7, IV-36, IV-37, VII-2, X-12 United States v. Hector 474 F.3d 1150 (9th Cir. 2007) ...... X-12 United States v. Hill 459 F.3d 966 (9th Cir. 2006)...... III-22 United States v. Hunter 13 F.Supp.2d 574, (D.Vt 1998) ...... III-24 United States v. Jacobs (9th Cir. 1983) 715 F.2d 1343 ...... IV-30 United States v. Johns (9th Cir. 1988) 851 F.2d 1131...... IV-44 United States v. Jones (2013)____L Ed 2d _____...... II-6 United States v. Karo (1984) 468 U.S. 705 ...... XI-15 United States v. Knights (2001) 534 U.S. 112...... I-10 United States v. Lacy 119 F.3d 742 (9th Cir. 1997) ...... III-20, III-23 United States v. Leon (1984) 468 U.S. 897 ...... I-7, I-8, IV-20, XI-16 United States v. Martinez-Garcia 397 F. 3d 1205 (9th Cir. 2005)...... X-12 United States v. Nielson (9th Cir. 2004) 371 F.3d 574...... IV-35 United States v. Padilla (1993) 508 U.S. 77 ...... XI-6, XI-8 United States v. Ramirez (1998) 523 U.S. 65...... X-7 United States v. Ramsey (1977) 431 U.S. 606...... IV-37 United States v. Robinson (1973) 414 U.S. 218 ...... I-13 United States v. Ross (1982) 456 U.S. 798...... I-13 United States v. Salvucci (1980) 448 U.S. 83...... XI-6 United States v. Searp (6th Cir. 1978) 586 F.2d 1117...... V-2 United States v. Ventresca (1965) 380 U.S. 102 ...... I-7, XI-10
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United States v. Vesikuru 314 F.3d 1116 (9th Cir. 2002) ...... IV-37 United States v. Villegas (2nd Cir. 1990) 899 F.2d 1324...... IV-44 United States v. Wong 334 F.3d 831 (9th Cir. 2003) ...... III-21 Vlick v. Superior Court (1982) 128 Cal.App.3d 992...... XI-19 Waller v. Georgia (1984) 467 U.S. 39 ...... X-22 West Covina v. Perkins (1999) 525 U.S. 234 ...... X-14 Williams v. Superior Court (1974) 38 Cal.App.3d 412...... VI-6, VI-7, VI-14 Wilson v. Arkansas (1995) 514 U.S. 927 ...... X-4 Wilson v. Layne (1999) 526 U.S. 603 ...... X-4, X-11 Wyoming v. Houghton (1999) 526 U.S. 295...... I-13 Ybarra v. Illinois (1979) 444 U.S. 85 ...... X-15 Zurcher v. The Stanford Daily (1978) 436 U.S. 547 ...... II-10
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