People v. Rogers

personal property tending to establish the identity of the person or persons in control of the premises, vehicles, storage areas, or containers where controlled substances may be found, consisting of and including, but not limited to, utility company receipts, rent receipts, cancelled mail, envelopes and keys.” The search conducted pursuant to the warrant produced 27 marijuana plants weighing approximately 120 pounds, 17 pounds of “sample” marijuana, containers of marijuana seeds and buds and some miscellaneous papers, including letters and checks.

Defendant contends his motion to suppress was improperly denied because (1) the search warrant used to obtain certain evidence was predicated upon facts obtained by an illegal aerial overflight and (2) the search warrant itself was overbroad. In an unpublished portion of this opinion, we conclude the aerial overflight lawfully established probable cause under California v. Ciraolo (1986) 476 U.S. 207 [ 90 L.Ed.2d 210 , 106 S.Ct. 1809 ], In this published portion, we conclude the warrant was not overbroad. We therefore affirm the judgment.

Discussion

I^[1]

Defendant contends the search warrant was overbroad by authorizing a search for items tending to indicate the identity of persons in control of premises, vehicles, storage areas or containers where controlled substances were found.^[2] He cites People v. Frank (1985) 38 Cal.3d 711 [ 214 Cal.Rptr. 801 , 700 P.2d 415 ], in support of his position.

Frank held that notebooks containing the personal thoughts of the defendant were unlawfully seized pursuant to three clauses of a search warrant

set forth in the margin.^[3] (Id.., at p. 722.) The court^[4] concluded that clauses two and eight of the warrant were overbroad and failed to satisfy the requirement of article I, section 13, of the California Constitution that a search warrant particularly describ[e] the place to be searched and the persons and things to be seized.’” (People v. Frank, supra, 38 Cal.3d at pp. 724, 726, italics original.) The warrant thus placed no “meaningful restriction upon the objects to be seized, ...” (Id., at p. 726.) The court also held that all three clauses were unsupported by probable cause; nothing in the affidavit gave the magistrate any factual basis to conclude the defendant’s residence contained documentary evidence of his whereabouts at the time of the crime or of any interest he may have had in the crime, or that he had any traffic tickets. (Id., at p. 728.)

Here, defendant does not assert a lack of probable cause supporting the warrant, only that it was insufficiently specific. However, the Frank court did not single out as insufficiently particular the clause authorizing the officers to search for and seize indicia of ownership or occupancy (see id., at p. 726) but held only that there was no probable cause to believe any traffic tickets would be found. (Id., at p. 728, fn. 2.) We thus do not read Frank as defendant urges us to; the court never held overbroad (as insufficiently particular) the portion of the warrant allowing the search for evidence indicating the identity of the residents of the home. Indeed, one case, People v. Holmsen (1985) 173 Cal.App.3d 1045 [ 219 Cal.Rptr. 598 ], has read Frank as not invalidating such dominion and control clauses. (Id., at p. 1048.)^[5]

We recognize Frank uses some rather broad language in its discussion of overbreadth. For example, the court held clause two failed to satisfy the constitutional requirement of particularity because the search for documentary evidence of the defendant’s whereabouts at the time of the crime encompassed items described only “by impermissibly general categories such as ‘credit card receipts,’ ‘records of telephone toll calls,’ ‘cancelled checks,’ and ‘personal diary notations. ’ In order to know whether defendant’s apartment contained any documents in any of these categories,” continued the court, “it would inevitably be necessary for the police to rummage through all defendant’s personal papers and read enough of each to learn its contents . . . .” (Frank, supra, 38 Cal.3d at p. 726, italics original.) The court reached the same conclusion with respect to clause eight of the warrant, which authorized the search for “‘scrapbooks,’ ‘photographs,’ ‘tape recordings,’ and ‘writings’—and purported to limit them to items that ‘could relate’ to the victim’s death and ‘would indicate’ either ‘participation’ or ‘an interest’ in that death by defendant. . . . [T]o execute this clause it would be necessary for the police both to rummage through all defendant’s ‘writings’ and to read enough of each to learn its contents.” (Ibid.)

It is difficult to discern from Frank a principled basis to distinguish between the generic categories found insufficiently particular and those not declared so. Thus, “credit card receipts,” “records of telephone toll calls” and “cancelled checks” were all declared overbroad (Frank, supra, 38 Cal.3d at p. 726) while “utility company receipts” and “insurance papers” were not expressly condemned, even though a search for each category would entail an intrusion into defendant’s papers for purposes of examination and possible seizure. In any event, we do not read Frank as invalidating the warrant clause at issue here on overbreadth grounds.

However, even if our reading of Frank is wrong, the decision in that case was based exclusively on article I, section 13, of the California Constitution. (People v. Frank, supra, 38 Cal.3d at p. 724.) That crime took place in 1978, before the voters amended the California Constitution by enacting Proposition 8 in 1982. (See Cal. Const., art. I, § 28.)* **^[6] Since that provision was added, exclusion of evidence in a criminal trial on grounds it is the product of an illegal search or seizure is compelled only to the extent suppression is required by exclusionary rules necessary to enforce the United States Constitution. (In re Lance W. (1985) 37 Cal.3d 873 , 879 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ]; see, e.g., People v. Lopez (1986) 181

sufficiently identify and limit the items to be seized.” (United States v. Honore, supra, 450 F.2d at p. 33.)

Other closely related warrant clauses have also been repeatedly upheld by the federal courts against challenges for overbreadth.^[7] (See, e.g., Milliman v. State of Minn. (8th Cir. 1985) 774 F.2d 247 , 249-250 [“Writings, including but not limited to books, checkbooks and bank accounts, magazines, automobile title certificates and registration cards, copies of real estate tax receipts, W-2 forms and other tax-related records ... all and any of which writings tend to show the presence of Lance Gerald Milliman and (his wife).”]; United States v. Alexander (9th Cir. 1985) 761 F.2d 1294 , 1301-1302 [“‘items or articles of personal property tending to show identity of persons in ownership, dominion or control of said premises. . . .’”]; United States v. Reed (7th Cir. 1984) 726 F.2d 339 , 342 [“proof of residency”]; United States v. Whitten (9th Cir. 1983) 706 F.2d 1000 , 1008-1009, cert. den. (1984) 465 U.S. 1100 [ 80 L.Ed.2d 125 , 104 S.Ct. 1593 ] [“‘telephone books, diaries, photographs, utility bills, telephone bills, and any other papers indicating the ownership or occupancy of said residence’”].)

The federal courts have concluded that “whether a warrant fails the particularity requirement cannot be decided in a vacuum. Vonderahe v. Howland, 508 F.2d 364 , 369 (9th Cir. 1974). The court will base its determination on such factors as the purpose for which the warrant was issued, the nature of the items to which it is directed, and the total circumstances surrounding the case. United States v. Lebron, 729 F.2d 533 , 538 (8th Cir. 1984); United States v. Apker, 705 F.2d 293 ,299 (8th Cir. 1983).” (Milliman v. State of Minn., supra, 774 F.2d at p. 250.) We shall apply the foregoing test to determine whether the warrant at issue here is sufficiently particular under the Fourth Amendment.