P. v. Manos
Filed 4/28/11 P. v. Manos CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| THE PEOPLE, Plaintiff and Respondent, v. CAPRICE ANNE MANOS, Defendant and Appellant. | A128199 (Alameda County Super. Ct. No. H46639) |
The Alameda County Sheriff’s Office identified a unique welding torch for sale on defendant’s eBay Web site and arrested defendant Caprice Anne Manos after a search of her property revealed the stolen item. The trial court denied a motion by defendant to suppress evidence, after which she pleaded no contest to a violation of Penal Code section 12316, subdivision (b), unlawful possession of ammunition.[1] She contends the denial of her motion was reversible error, because the search warrant leading to the seizure of evidence underlying her conviction was impermissibly overbroad. As discussed below, we find no error and affirm.
Background
On May 27, 2008, a welding instructor at Laney College in Oakland reported a burglary on the campus, and the theft of a welding torch—a Hypertherm 800 Plasma Cutter. The instructor and a colleague had made custom modifications to the missing torch, making it unique—like “no other machine in the world.” About a week after this report, the instructor notified police that he had found the stolen torch listed for sale on eBay, an internet auction site. The welding instructor was able to identify the unique features of the stolen torch from photographs attached to the advertisement.
The investigating officer, Sergeant Tucker of the Alameda County Sheriff’s Office, examined the eBay Web site and learned the stolen torch was being auctioned by a person with the screen name “capubid.” This person listed two e-mail addresses and identified the item’s location as “San Lorenzo.” On June 5, 2008, a warrant issued for the eBay screen name “capubid” and the e-mail addresses associated with that screen name. Representatives of eBay spoke with Tucker, who learned the screen name and e-mail addresses were used by Caprice A. Manos—defendant—who resided in San Lorenzo, Alameda County. Tucker knew defendant from “prior police contacts,” and determined she was no longer on probation. He drove by her residential address and noted two vehicles, one parked in the driveway and one on the street directly in front, which were registered to defendant. In examining one of the photographs attached to the “capubid” advertisement, Tucker had seen what appeared to be an above-ground swimming pool in the background. He found aerial photographs of defendant’s residence on http://www.maps.google.com/ and http://www.zillow.com, and saw what appeared to be a swimming pool in the backyard of defendant’s residence, consistent with the pool seen in the photographs of the stolen torch.
Reciting the foregoing facts, Sergeant Tucker submitted an affidavit to obtain a warrant to search defendant’s residential property, vehicles, and person. The warrant issued on June 6, 2008, and was executed by Tucker and a team of deputies on June 10, 2008. They seized the stolen torch, which they found in defendant’s backyard. Other seized items included a box containing “gun parts” and ammunition.
An information filed on April 16, 2009, charged defendant with a felony violation of section 496, subdivision (a) (receiving stolen property), a felony violation of section 12021, subdivision (a) (unlawful possession of firearm by a convicted felon),[2] and a felony violation of section 12316, subdivision (b) (unlawful possession of ammunition by person prohibited from possession of firearm under section 12021). Defendant initially pleaded not guilty.
On May 29, 2009, defendant filed a motion pursuant to section 1538.5, to quash the search warrant, and suppress the evidence seized in the execution of that warrant. Defendant argued the warrant was invalid because it authorized a search of items and locations not supported by the affidavit, and its language was impermissibly overbroad in describing the places to be searched and the items to be seized. The trial court denied the motion.
On February 23, 2010, defendant withdrew her plea of not guilty and entered a plea of no contest to the violation of section 12316, subdivision (b) (unlawful possession of ammunition). The trial court accepted the change of plea and found defendant guilty of that charge. The court then dismissed the remaining charges on motion by the prosecution. Defendant’s plea was based on a plea bargain agreement, with the understanding that she would be granted probation of five years, and that after successful completion of three years of probation her conviction would be reduced, on petition, to a misdemeanor.
On April 9, 2010, the trial court suspended imposition of sentence, granting defendant formal probation for a period of five years. The terms required, among other things, that defendant serve one day in county jail, with credit for one day. The terms also affirmed that defendant might request to have her conviction reduced to a misdemeanor after successful completion of three years of probation.
Defendant waived appeal on all issues except the denial of her motion under section 1538.5. Her appeal, limited to that issue, followed. (See §§ 1237.5, 1538.5, subd. (m).)
Discussion
The search warrant issued on June 6, 2008, ordered the search of defendant’s residence, “to include all outbuildings, safes and receptacles, or any location or container where stolen property could be secreted.” It also called for a search of defendant’s person, “[a]nd any vehicle located on or near the property determined to be in the control [of defendant].” The warrant listed several categories of items to be seized. The initial category of items described personal property “tend[ing] to establish the identity of person(s) exercising dominion and control” over the premises and property. Such items might include “registration papers, insurance documents, mail envelopes, probation/parole orders, photographs, keys or personal correspondence, financial documents, including deposit slips, contracts, business licenses, fictitious business licenses, check books, credit cards, credit card receipts, bills, both personal and business related, bank statements [and] business cards.” A second category was “other items . . . tending to show involvement in fraud” and “other items tending to show intent to defraud or sell stolen property,” listing “[c]omputers, hard drives, removable hard drives, thumb drives[, c]ellular telephones, cellular telephone records, hand written telephone numbers or bills, handwritten documents, [and] typed or computer generated documents . . . .” Also listed were “[a]ny written or computer communication[s] in printed or stored medium such as E-mail and Chat Logs whether in active files, deleted files or unallocated space on the hard drive, floppy drive or any data storage media.” The third category was “[s]tolen property or property believed to have been stolen, to include welding equipment, musical instruments, or any item which can be determined to be obtained through fraudulent or felonious means, or to which [its] origin can not be explained.”
As noted above, the items actually seized included the stolen torch, found in the backyard, and a box of gun parts and ammunition found in a bedroom. The inventory of property seized also listed the following items, found in various rooms inside the residence: a guitar, a camera containing “pictures of stolen property,” a laptop computer, a computer tower, defendant’s purse—which contained “indicia” of defendant’s ownership and control and an unspecified amount of “suspected meth,” and other “indicia” of ownership and control in the form of letters or mail addressed to defendant at her home address.
The trial court, in denying defendant’s motion under section 1538.5 to suppress the evidence, expressed perplexity about the warrant’s inclusion of “musical instruments,” and commented that Sergeant Tucker had likely used an older warrant as a drafting template and inadvertently failed to delete this subcategory of “stolen property.” Otherwise, the court found the issuing magistrate had properly ordered the search for the stolen torch, as well as for computer equipment and drives for evidence relating to defendant’s eBay business and her attempted online sale of the stolen torch. The court concluded the warrant was not overbroad to the extent it had permitted the deputies to search “most of the nooks and crannies” in defendant’s residence, in light of the “very small” nature of some of the computer equipment described in the warrant.
Defendant contends, as she did below, that the search ordered in the warrant was overly broad and invalid on its face, resulting in “wholesale seizures.” She claims the affidavit submitted by Sergeant Tucker supported only a search of defendant’s residence for the stolen torch, indicia of ownership or control, and documents connected to the theft of the welding torch. The affidavit, she urges, did not support a search for any other property the searching officers might also believe was stolen, nor did it support a search for items tending to show “involvement in fraud,” property “obtained through fraudulent . . . means,” or “musical instruments.” Defendant asserts that the warrant, contrary to the facts included in the affidavit, improperly employed “generalized search terms [that] imposed no restriction and allowed for an all-encompassing ‘general search.’ ” Defendant relies particularly on the decision in United States v. LeBron (8th Cir. 1984) 729 F.2d 533 (LeBron), as persuasive authority, quoting the decision at some length. In that decision, a federal court of appeals panel held a search warrant to be overbroad, and, in defendant’s view, the facts are almost identical to those in this case. She urges this court to adopt its reasoning.
No search warrant shall issue except “upon probable cause . . . and particularly describing 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 standard of probable cause, for the purpose of issuing a search warrant, is whether the affidavit states facts that make it substantially probable that there is specific property lawfully subject to seizure in the particular place for which the warrant is sought. (People v. Frank (1985) 38 Cal.3d 711, 727 (Frank).) A search warrant may not authorize a search broader than the facts supporting its issuance. (Id. at p. 728.) Thus, the particularity requirement is designed to prevent “general exploratory searches,” and is satisfied when the warrant “imposes a meaningful restriction upon the objects to be seized.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249 (Burrows).) That is, “ ‘the warrant must be sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty.’ ” (People v. Rogers (1986) 187 Cal.App.3d 1001, 1007 (Rogers).)
Here, the facts are essentially limited to those stated in the supporting affidavit and the language of the warrant itself. We may also consider the items seized, for the seizure of many innocent items itself demonstrates that the warrant was overbroad. (Frank, supra, 38 Cal.3d at p. 727.) When the facts are thus undisputed, our review is limited to an independent determination whether, on such facts, the search was unreasonable within the meaning of the Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591, 596−597.)
We note, initially, that the first category of items to be searched and seized described items of personal property “tend[ing] to establish the identity of person(s) exercising dominion and control” over the premises and property. Such language has frequently been upheld as sufficient to “identify and limit” the items to be seized. (See Rogers, supra, 187 Cal.App.3d at pp. 1007−1008.) That the language served to impose a meaningful limit is supported by the fact that there was no wholesale seizure of innocent items simply because they happened to be “photographs,” “financial documents,” or some other listed item of personal property. The only indicia actually seized was limited to identification found in defendant’s purse and several letters addressed to her at her home address.
Next, we note that the supporting affidavit clearly established probable cause to search defendant’s residence and backyard for the stolen welding torch, and defendant concedes as much. It also clearly established that defendant was engaged in an attempt to sell a stolen torch on an internet auction site, in which she identified San Lorenzo as the location of the item. For this reason, there was probable cause to search for items in defendant’s San Lorenzo residence that “tend[ed] to show intent . . . to sell stolen property,” including defendant’s computer equipment in particular, because the supporting facts described an attempted sale of stolen property that necessarily required a computer with internet access. The warrant, in our view, described these items with sufficient particularly to impose a meaningful restriction on the items to be seized. (Burrows, supra, 13 Cal.3d at p. 249.) Again, we observe that the items in this category actually seized were, in fact, limited to three items found in the residence: the laptop computer, the computer tower, and a camera that contained photographs of the stolen property.
The supporting affidavit did not support the seizure of “musical instruments,” which resulted in the seizure of a guitar. This does not mean, however, that the warrant was invalid as a whole. The invalid inclusion of musical instruments may easily be severed from the otherwise valid portions pertaining to the search for and seizure of the stolen torch, the computer equipment, the camera with photographs of stolen property, and the indicia of ownership and control. (See Aday v. Superior Court (1961) 55 Cal.2d 789, 797 (Aday).) In fact, it appears the trial court implicitly made such a severance when it commented that the inclusion of musical instruments was most likely an inadvertent drafting error.
The Supreme Court recognized that the severance of invalid portions of a warrant from its valid portions may not be appropriate in all circumstances. It observed, for example, that a warrant might improperly be “essentially general in character,” with only “minor items” meeting the particularity requirement, and that “wholesale seizures might be made . . . in the expectation that the seizure would in any event be upheld as to the property specified.” (Aday, supra, 55 Cal.2d at p. 797.) Defendant contends there should be no severance in this case, because the searching officers made “wholesale seizures” with the expectation that the warrant would be upheld as to the items properly specified. A glance at the inventory of items seized, however, is sufficient to dispel this argument. The only arguable seizure of innocent property was the seizure of a single guitar, and we are not persuaded that this seizure alone demonstrates “the looseness” of the warrant. To the contrary, we are satisfied that the inclusion of “musical instruments” in the warrant may properly be severed from the otherwise valid portions of the warrant.
As for defendant’s insistence that the affidavit did not support the seizure of items “tending to show involvement in fraud,” items “tending to show intent to defraud,” or items “obtained through fraudulent . . . means,” we have previously noted the affidavit did show an attempt by defendant to sell stolen property on eBay. This internet site is one commonly known to have been established by a legitimate internet business, to provide a convenient forum for individuals to engage in lawful transactions to sell or purchase personal property. The facts were sufficient to show that it was probable defendant, in posting her advertisement, had made, at the least, an implicit, but fraudulent representation that she was the lawful owner or was otherwise lawfully authorized to sell the stolen torch. But in any event, these items, too, may easily be severed from the clearly valid portions of the warrant. Their inclusion does not appear to have resulted in the seizure of any of the items inventoried, much less a “wholesale seizure” of innocent property; and there is otherwise no indication of an abuse of the warrant procedure that would preclude such severance. (Aday, supra, 55 Cal.2d at p. 797.)
Finally, we address defendant’s objection to the inclusion of “property believed to have been stolen.” In the LeBron decision, on which defendant principally relies, the affidavit submitted in support of issuance of a search warrant stated that the defendant in that case was an “active” buyer of stolen property, and specified some particular stolen items defendant had agreed to buy. (LeBron, supra, 729 F.2d at p. 535.) The warrant authorized a search of defendant’s residence for these items, as well as “other property, description unknown, for which there exists probable cause to believe it to be stolen.” (Id. at pp. 535−536.) The executing officers seized the items particularly described early in their search, but continued searching for “other property,” and in the process discovered a large cache of firearms. The defendant, seeking to suppress the firearms, challenged the “other property” clause of the warrant as overbroad, arguing the officers should have stopped their search as soon as they seized the items particularly described. At oral argument, the prosecution conceded that the “other property” clause was overbroad. (Id. at p. 536.) A majority of the federal court of appeals panel agreed, concluding that the language describing property “believe[d] to be stolen” was conclusory and permitted a general search in violation of the Fourth Amendment. (LeBron, supra, at pp. 536−537.) In holding that the seizure of the firearms was invalid, the majority relied on the factual showing that when the officers discovered the firearms they were searching only for “other property” under the overbroad clause. (Id. at p. 538.) Under the severance doctrine adopted by the Eighth Circuit Court of Appeals, the officers could not justify seizure of the firearms under the “plain view” doctrine because that seizure occurred after they had completed their search under the valid portions of the warrant. (Id. at p. 537 & fn. 3.)
In this case, we note that the search for “property believed to have been stolen” is qualified by the inclusion of “welding equipment, musical instruments, or any item which can be determined to be obtained through . . . felonious means, or to which [its] origin can not be explained.” (Italics added.) Thus, the search and seizure of property “believed to have been stolen” was, in effect, limited either to particular items, or to items that the officers could determine had actually been stolen. Furthermore, there was no evidence before the trial court relating to the sequence of events during the execution of the warrant. In particular, there was no showing that the stolen welding torch, computer equipment, and other items seized under valid portions of the warrant were taken early in the search, and that when officers discovered the box of firearms and ammunition they were searching only for property “believed to have been stolen.” Unlike the situation in LeBron, supra, 729 F.2d 533, there is no indication that the executing officers even conducted a search for any stolen property other than the welding torch. Certainly, there were no “wholesale seizures”—or any seizure—of items on the basis of the officers’ belief that the items were stolen. As nothing in the record indicates any abuse, or attempted abuse, of the warrant process, due to the inclusion of items “believed to have been stolen,” we see no impediment to the severance of this clause from the valid portions of the warrant, to the extent the clause may have improperly authorized the search and seizure of items merely “believed” to have been stolen, but not determined to have actually been stolen. (Aday, supra, 55 Cal.2d at p. 797.)
In sum, we conclude there was no error in denying defendant’s motion to suppress evidence.
Disposition
The judgment is affirmed.
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Marchiano, P.J.
We concur:
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Dondero, J.
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Banke, J.
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