People v. Superior Court

MIHARA, J., Concurring.

While I agree with my colleagues that the superior court erred in suppressing the evidence, my reasoning is significantly different. I believe that the warrant in this case may not properly be interpreted, consistent with the United States Constitution, to authorize both the seizure of Maurice Xavier Nasmeh’s vehicle and the intensive search for trace evidence to which the vehicle was subjected. Nevertheless, I am convinced that the seizure and search of the vehicle was valid under the automobile exception to the warrant requirement and was not rendered unreasonable by the 10-day delay between the seizure of the vehicle and the search.

I. Search Warrant

On August 3, 2001, a search warrant was issued authorizing the search of Nasmeh’s home, person, and vehicle for 10 items of particularly described property. While the 10 items included “2-Sofa cushions white in color with blue pin-stripes” and a “Floor rug described as being mostly blue Persian style wool rug with a tag on the back,” the descriptions in the warrant of the items to be seized did not mention fibers or “trace” evidence of any kind. The warrant also did not authorize the seizure of Nasmeh’s vehicle. All of the described items to be seized (other than a sample of Nasmeh’s blood) were recognizable physical objects. Following the warrant’s listing of the places to be searched and the objects to be seized, the warrant stated: “AND if you find the same or any part thereof, to hold such property in your possession under California Penal Code section 1536.”

A. Probable Cause to Support Warrant

Nasmeh challenged the warrant as unsupported by probable cause. The superior court rejected this challenge. Nasmeh renews this contention before this court as an alternative basis for denial of the People’s petition.

“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” (Illinois v. Gates (1983) 462 U.S. 213, 236 [76 L.Ed.2d 527, 103 S.Ct. 2317], quoting Spinelli v. United States (1969) 393 U.S. 410, 419 [21 L.Ed.2d 637, 89 S.Ct. 584].) “Reflecting this preference for the warrant process, the traditional *104standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a ‘substantial basis for . . . concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” (Illinois v. Gates, at p. 236, quoting Jones v. United States (1960) 362 U.S. 257, 271 [4 L.Ed.2d 697, 80 S.Ct. 725].)

“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, 109 [13 L.Ed.2d 684, 85 S.Ct. 741].) Where the affidavit provides sufficient information to enable the magistrate to act independently rather than merely ratifying the conclusions of the affiant, the affidavit is not legally insufficient. (Illinois v. Gates, supra, 462 U.S. at p. 239.) “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 . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Id. at p. 238.) “On review, we bring to bear the same standard which governed the trial court: the magistrate’s order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause.” (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 203 [178 Cal.Rptr. 334, 636 P.2d 23].)

The affidavit in support of the search warrant set forth the following facts. Nasmeh was the last known person to see Jeanine Harms before she and some of her property disappeared from her home. Harms’s friends confirmed that Harms’s disappearance strongly suggested that she was dead or had been kidnapped. Nasmeh left Harms’s home in his vehicle shortly after Harms was last known to be alive, and neither Harms nor her property had been seen since. No one else was known to have been at Harms’s home near the time of her disappearance.

Under these circumstances, a magistrate could conclude that it was fairly probable that Nasmeh’s vehicle had been used to transport Harms (or her body) and her property away from her home and therefore that some of the missing items might yet be found in Nasmeh’s vehicle. It follows that the warrant validly authorized a search of Nasmeh’s vehicle for the items particularly described in the warrant.

B. Scope of Warrant

Although the warrant validly authorized a search of Nasmeh’s vehicle for the items particularly described in the warrant, Nasmeh asserted, and the superior court agreed, that the actual seizure of his vehicle and the search of it for fibers and trace evidence was beyond the scope of the warrant. I agree.

*105“If the scope of the search exceeds that permitted by the terms of a validly issued warrant. . . , the subsequent seizure is unconstitutional without more.” (Horton v. California (1990) 496 U.S. 128, 140 [110 L.Ed.2d 112, 110 S.Ct. 2301].) The Fourth Amendment requires a search warrant to “particularly describ[e] the place to be searched, and the persons or things to be seized.” (U.S. Const., 4th Amend.; see also Cal. Const., art. I, § 13; Pen. Code, § 1525.) “The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person’s right to privacy. (Marron v. United States (1927) 275 U.S. 192, 196 [72 L.Ed. 231, 237, 48 S.Ct. 74].) The Penal Code [too] demands reasonable particularity (Pen. Code, § 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249 [118 Cal.Rptr. 166, 529 P.2d 590]; accord, People v. Balint (2006) 138 Cal.App.4th 200, 205-206 [41 Cal.Rptr.3d 211]) “ < “Ás to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” ’ ” (Andresen v. Maryland (1976) 427 U.S. 463, 480 [49 L.Ed.2d 627, 96 S.Ct. 2737].) “Whether the description in a warrant of property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court.” (People v. Kraft (2000) 23 Cal.4th 978, 1041 [99 Cal.Rptr.2d 1, 5 P.3d 68].) When the claim is that a search during the execution of a search warrant was beyond the scope of the warrant, the claimant bears the burden of proof. (People v. Reyes (1990) 223 Cal.App.3d 1218, 1224 [273 Cal.Rptr. 61].)

My colleagues reject Nasmeh’s challenge to the scope of the search and seizure on the ground that the warrant’s inclusion of the words “any part thereof’ authorized a search for fibers and trace evidence. I do not agree with this analysis.

The words “any part thereof’ are part of the standard form search warrant prescribed by Penal Code section 1529. The “any part thereof’ language is not affixed to the description of the property to be seized, but instead is a portion of the language regarding the return of the warrant. “The warrant shall be in substantially the following form: [f] . . . [f] . . . [you are authorized to search a particular described place] for the following property, thing, things, or person: (describing the property, thing, things, or person with reasonable particularity); and, in the case of a thing or things or personal property, if you find the same or any part thereof, to bring the thing or things or personal property forthwith before me (or this court) at (stating the place).” (Pen. Code, § 1529, italics added.)

The mere use of the statutorily prescribed form for the search warrant did not expand its scope to include unrecognizable particles (fibers and other trace evidence) since the warrant failed to provide the searching officers with *106any guide to determining whether any trace “thing” they were seizing fell within the scope of the warrant. Indeed, nearly any item in the vehicle potentially could have harbored an unrecognizable trace of one of the described items in the warrant. Consequently, if my colleagues were correct, this warrant (and any other warrant using the statutorily prescribed form) would authorize the seizure of 100 percent of the contents of the place to be searched, even though the searching officers would have no way of distinguishing between those items that were within the scope of the warrant and those that were not.

I do not question that a properly supported warrant could explicitly authorize a search for particularly described traces of specific items. However, this warrant did not particularly describe traces of the specified items as among the objects of the search, and the warrant’s inclusion of the standard “any part thereof’ language in its command regarding the return did not provide a “meaningful restriction” on the scope of the search that limited the discretion of the searching officers. This warrant cannot be constitutionally and logically interpreted to permit seizure of unrecognizable traces that are not particularly described in the warrant as the object of the search. If it did, it would authorize precisely the type of general exploratory search that the Fourth Amendment was intended to bar.

Obviously, this warrant validly authorized a search for, and seizure of, the items listed, and any readily identifiable pieces of those items that the officers discovered in plain view during their search for the particularly described items. Had an officer seen in the vehicle an object that was readily recognizable as a piece of the particularly described rug, the Fourth Amendment would not be offended by the officer’s seizure of that item. However, the indiscriminate seizure of fiber evidence from the vehicle was not within the scope of the warrant.

C. Good Faith

The People did not establish that the seizure and search of the vehicle was done in good faith reliance on the warrant.

“This exception provides that evidence obtained in violation of the Fourth Amendment need not be suppressed where the officer executing the warrant did so in objectively reasonable reliance on the warrant’s authority. The test for determining whether the exception applies is ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” (People v. Holland (2003) 110 Cal.App.4th 1646, 1653 [2 Cal.Rptr.3d 919].)

*107Steve Wahl, the officer who executed the search warrant, testified that he believed that “when the Jeep was listed in the search warrant as a place to be searched, that I would be afforded the opportunity to search for those items or any part thereof, and any additional trace evidence either at the location at the residence or at the crime lab. That didn’t limit me to where I would be able to search that vehicle.” (Italics added.) Wahl believed that he had a right to transport the vehicle to another location to search it. The crime lab was the “only place” where Wahl believed a search for biological and trace evidence could be performed. Wahl was not involved in the eventual thorough search of the vehicle. Wahl merely sealed the vehicle and ordered it transported to the crime lab.

Eric Barloewen, the criminalist who searched the vehicle at the crime lab, never saw the warrant. He merely processed the vehicle thoroughly, looking for biological and other trace evidence, pursuant to a form request that asked him to “process the vehicle for any evidence.” Barloewen performed a “blind sampling” of various locations “just hoping to collect, you know, as much evidence as possible.”

A reasonably well-trained officer would have understood that the warrant did not authorize a search for anything other than the particularly described items, which did not include fibers or other trace evidence. Wahl’s belief that the warrant authorized the seizure and thorough search of the vehicle was not objectively reasonable because it was not based on anything in the warrant that even suggested that he was authorized to seize the vehicle, rather than merely search it, or anything in the warrant that appeared to authorize a search for and seizure of trace evidence. Barloewen’s search was not done in reliance on the warrant at all. Since Wahl could not have had a good faith belief that the warrant authorized the seizure of the vehicle and a thorough search for biological and other trace evidence, and Barloewen did not rely on the warrant, the good faith exception to the warrant requirement is not applicable here.

II. Warrantless Search

A. Automobile Exception

“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” (California v. Acevedo (1991) 500 U.S. 565, 580 [114 L.Ed.2d 619, 111 S.Ct. 1982].) “One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime.” (Arkansas v. Sanders (1979) 442 U.S. 753, 760 [61 *108L.Ed.2d 235, 99 S.Ct. 2586].) In Florida v. White (1999) 526 U.S. 559 [143 L.Ed.2d 748, 119 S.Ct. 1555], the United States Supreme Court held that an automobile could be lawfully seized without a warrant based on probable cause to believe that the automobile had been used in the commission of a felony. (White, at pp. 564—566.) In White, the automobile was not stopped on the street, but was seized from a public parking lot. (White, at p. 566.)

The critical limitation on the automobile exception to the warrant requirement is the requirement of probable cause. Here, probable cause supported a thorough search of the vehicle. “The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause.” (United States v. Ross (1982) 456 U.S. 798, 823 [72 L.Ed.2d 572, 102 S.Ct. 2157].) Wahl’s affidavit in support of the warrant was sufficient to support probable cause to search for fibers and biological and other trace evidence that might have been left in the vehicle after the disposal of the property and Harms’s body. If Harms and her property were transported in the vehicle, there was a fair probability that a trace of Harms’s body or her property would be found in the vehicle.

B. Duration of Seizure

The superior court found that the automobile exception was applicable and that probable cause supported a seizure and search of Nasmeh’s vehicle, but it also found that the search was unreasonable because the vehicle was seized and detained for an unreasonable period of time prior to the search. This is the dispositive issue in this case. .

“[A]ny examination of a seized automobile is a search and therefore must be reasonable under the Fourth Amendment.” (People v. Minjares (1979) 24 Cal.3d 410, 422 [153 Cal.Rptr. 224, 591 P.2d 514].) “We do not suggest that police officers may indefinitely retain possession of a vehicle and its contents before they complete a vehicle search. [Citation.] Nor do we foreclose the possibility that the owner of a vehicle or its contents might attempt to prove that delay in the completion of a vehicle search was unreasonable because it adversely affected a privacy or possessory interest.” (United States v. Johns (1985) 469 U.S. 478, 487 [83 L.Ed.2d 890, 105 S.Ct. 881].)

The superior cotirt concluded that the vehicle search was unreasonable because the lengthy delay after the seizure of the vehicle had adversely affected Nasmeh’s possessory interest in the vehicle. The' court made a number of factual findings. It found that Nasmeh’s vehicle had been seized on the day of the search (August 4), but it had not arrived at the crime lab for six days. The vehicle remained there for five more days before it was *109searched. It was not released to Nasmeh for another 13 days. “The vehicle was retained by police for 24 days, even though the evidence shows that only one or possibly two days were required to conduct the entire search, and no justification was given for the additional 22 days that defendant was deprived of use and possession of the Jeep.” “Defendant was not under arrest and, therefore, . . . had a significant possessory interest in the vehicle upon [sic] which was infringed upon for 24 days without justification.” “Therefore, under the unique facts of this case, the duration of the seizure and the resulting interference with defendant’s rights of possession, without explanation or justification, was [sic\ unreasonable and a violation of Defendant Nasmeh’s Fourth Amendment right to be free from unreasonable search and seizure.”

The superior court’s factual findings must be upheld if supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].) On the legal issue of “ ‘whether, on the facts found, the search was unreasonable within the meaning of the Constitution,’ ” we exercise our independent judgment. (Id. at p. 597.) A warrantless search is presumptively unreasonable, and the People bear the burden of proving that the search was reasonable. (People v. Williams (1999) 20 Cal.4th 119, 127 [83 Cal.Rptr.2d 275, 973 P.2d 52].)

The superior court’s factual findings are supported by substantial evidence. Wahl executed the search warrant on August 4, 2001. Nasmeh provided Wahl with the keys to the vehicle, which was parked-in Nasmeh’s driveway. Wahl briefly looked inside of the vehicle “[f]or any of the items listed in the search warrant or any obvious evidence of a crime of murder.” He saw “[n]othing immediately apparent” that appeared to be evidence of a homicide. Wahl did not instruct an evidence technician to take “tape lifts” at the scene of the search even though such “tape lifts” could have been taken “in the field.”1 Instead, he sealed the vehicle and “ordered it to be sent to the county crime lab” so that a “thorough search” could be done to collect biological or other “trace” evidence.

The search of the vehicle at the crime lab took place on August 14 and 15. When the vehicle was received by the crime lab, it was locked and sealed. Barloewen, the criminalist who searched the vehicle, contacted the Los Gatos Police Department on August 14 seeking keys or access to the interior. Access was gained on August 15 when a towing company employee opened the vehicle.2 On August 15, Barloewen “processed the interior for biological *110evidence, trace evidence” and “fingerprint evidence . . . .” The vehicle was released by the crime lab to a Los Gatos Police detective on August 23 and could have been released to Nasmeh as of that date. The Los Gatos Police Department released the vehicle to Nasmeh’s representative on August 28. The People offered no evidence to explain or justify the delay between the August 4 seizure of the vehicle and Barloewen’s August 14 commencement of work on the search of the vehicle.

Since the superior court’s factual findings are supported by substantial evidence, the only question remaining is whether the superior court erred in concluding that the unjustified 10-day delay3 between the seizure of Nasmeh’s vehicle and the search rendered the search unreasonable as a matter of law. The People bore the burden of proving that the search was reasonable, and it is evident that the People failed to attempt to establish any justification for the delay.

Nevertheless, I am convinced that the 10-day delay did not render the search unreasonable. “[T]he ‘touchstone of the Fourth Amendment is reasonableness.’ [Citation.] Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 117 S.Ct. 417].) When the totality of the circumstances are considered here, the 10-day delay between the seizure of Nasmeh’s vehicle and the search does not dictate a finding that the search was unreasonable.

Harms had been missing for about a week when the search warrant was obtained, and Nasmeh was well aware that he was under suspicion. The police clearly had probable cause to believe that Nasmeh’s vehicle contained evidence related to Harms’s disappearance. Nasmeh cooperated with the police by providing them with the keys to his vehicle, and there is no evidence that he ever protested its seizure or tried to obtain its return during the 10-day delay. Indeed, even after the vehicle was available for release to him, Nasmeh did not immediately seek to retake possession of it. Although it may be inconvenient to be deprived of one’s vehicle for 10 days, such a deprivation is neither serious nor uncommon. Automobiles are frequently incapacitated for such periods due to mechanical breakdowns and the need for repairs. While there is no doubt that Nasmeh’s possessory interest in the vehicle was impacted by the 10-day delay, I am convinced that the totality of the circumstances supports a finding that this fairly brief deprivation of possession did not render unreasonable an otherwise timely and well justified search of the vehicle.

*111in. Conclusion

While my analysis is different, I agree with my colleagues that the People’s petition should be granted.

The petition of real party in interest for review by the Supreme Court was denied June 20, 2007, S153185.

Wahl gave inconsistent testimony about whether an evidence technician was available on the scene of the search to perform tape lifts.

Wahl had somehow misplaced the key to the vehicle. He found the key in his police locker in 2005.

I fail to see how the detention of the vehicle after the search could possibly justify a finding that the search itself was unreasonable. Logic dictates that the reasonableness of the search could not depend on subsequent events. Nasmeh conceded at oral argument that the relevant period was 10 days long.