P. v. Manfredi

Filed 4/10/07 P. v. Manfredi CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara and Gary L. Paden, Judges.^*

Phillip J. Cline, District Attorney, Don H. Gallian, Assistant District Attorney, Carol B. Turner, Assistant District Attorney, Barbara J. Greaver and Todd Hayward, Deputy District Attorneys, for Plaintiff and Appellant.

Michael B. Sheltzer, Public Defender, Lisa Bertolino-Meuting, Assistant Public Defender, and Neal Pedowitz, Deputy Public Defender, for Defendant and Respondent.

Respondent, Eric Manfredi, was charged with 45 criminal counts. Following a successful motion to suppress, the court dismissed a number of counts. The People filed a motion to reinstate the counts. That motion was denied. The People appeal. We reverse, determining the search warrant that was issued was sufficient to authorize the searching officer to search defendants computer; alternatively, the good faith exception to the exclusionary rule would apply to the facts as found by the court.

FACTS AND PROCEEDINGS

Late in the evening of February 23, 2006, officers were called to defendants home investigating a reported assault with a deadly weapon. Defendant had been stabbed three times. An officer securing the scene saw in a car on the property a container with a black PVC pipe coming out of it and going into a jug with a cloudy liquid. The officer called Detective Michael Hallum, an expert in methamphetamine production.

Hallum went to the scene and looked at the items that were in plain view. Based on his training and experience, it was his opinion that the items were associated with methamphetamine manufacturing. Because of the dangers posed by a methamphetamine laboratory, Hallum left and went to his office to obtain a telephonic search warrant. He called Judge Kalashian at 12:30 a.m. to obtain the warrant.

The telephone conversation was taped and transcribed. Hallum told the judge about the circumstances leading up to his request for a warrant. Hallum said he was requesting a warrant be issued to include the vehicle and the residence as people who manufacture Methamphetamine often hide things inside the vehicles and inside residence. These are these also to include chemicals and apparatus that is [sic] used for manufacturing Methamphetamine.

The judge asked Hallum for his training and experience. Hallum described his training and experience. The court then asked for a description of the house to be searched. Hallum gave him a description.

The following exchange then took place: [Judge] Okay. And the items that you want seized, did you tell me that already? [] [Hallum] [A]ll items to be seized is going to be chemicals and apparatus used in the manufacture of Amphetamine or Methamphetamine including Acetone, Formana Formamide, Ether, Sulfuric Acid, Hydrogen Peroxide, Benzine, Methanol, Hydrochloric Acid, Sodium Acetate, Hydroxylamine, Palladium Black, Potassium Hydroxide, Methal Gas, Sodium Hydroxide, Methylamine, Lithium Aluminum Hydride, Red Phosphorous, Amphetamine, Methamphetamine, Flasks, Tubing, Heating Mantles, Condensers, Vacuum pumps, Separatory Funnels, PH Paper, Separatory Vats, Pseudoephedrine, Caustic Sodas, Denatured Alcohol, Solvents, Hydrochloric Gas, Ephedrine, Iodine or Iodine Crystals, Hydriotic Acid and any other chemicals that could be used in manufacturing Methamphetamine.

The judge had the officer swear and affirm that what he told the judge was true. The judge then telephonically granted a search warrant for nighttime service.

Pursuant to the search warrant, Hallum entered defendants home and began searching. He saw a computer. He began searching the computer for methamphetamine recipes. He did not find any recipes but discovered a photograph of a nude boy. He turned off the computer and contacted the police department. The computer and several discs were seized. An officer with expertise in sexual assault previewed the computer and the video discs. He found numerous images of sexual acts with young boys. On February 28, 2006, the officer requested and was granted a second search warrant to search for additional computers, computer equipment, DVDs and other related items.

As a result of the images found on defendants computer and in his house, a 46-count felony complaint was filed against defendant. There were numerous counts for possession of child pornography based on images found on the computer and the discs. In addition, defendant was charged with numerous counts of illegal sexual activity arising from the actual accounts from the victims who were discovered after defendants illegal sexual activities were revealed. Defendant was not charged with any drug-related crimes.

The initial search warrant and transcription of the telephone conversation (affidavit) were returned to the court and, on March 8, 2006, Judge Kalashian certified that the affidavit was a correct transcription of the oral statement given to him by telephone and that the search warrant signed by Hallum constituted the search warrant that he authorized telephonically.

The search warrant stated that the officer was commanded to search defendants address. It listed the address and then stated FURTHER DESCRIBED IN ATTACHMENT A. The warrant went on to state that the officers were allowed to search for the following evidence: Methamphetamine Laboratory Equipment and items associated with methamphetamine manufacturing FURTHER DESCRIBED IN ATTACHMENT B.

Defendant filed a motion to suppress evidence obtained outside the scope of the first warrant and a motion to traverse or quash the second warrant. He initially noted that a court clerk conducted a search of defendants file for attachments A and B. No attachments could be located on April 6, 2006. Defendant argued that the search of the computer was outside the scope of the warrant because the warrant did not specifically or generally state that recipes or records were items to be search for or seized. Defendant claimed that the computer could not be searched or seized because the warrant and affidavit authorized a search for equipment and chemicals and such items could not have been found in his computer. Defendant then argued that the second warrant was issued without probable cause because it was based on evidence illegally seized during the execution of the first warrant, thus any evidence obtained based on the second warrant also needed to be suppressed. In addition, defendant argued that the good faith exception to the exclusionary rule did not apply. (This argument appeared to be focused solely on the second warrant.)

The People filed opposition to the motion to suppress. They argued that defendant did not have standing and that a search of the computer was listed in attachment B to the search warrant and thus the search of the computer was authorized. In addition to points and authorities, the deputy district attorney filed a declaration. She stated that she went to the clerks office and requested a copy of the telephonic search warrant. The copy she was given did not contain an attachment A or B. She asked for the attachments, but the clerk could not find them. The deputy district attorney then called Hallum and asked him about the attachments; he said he did not recall because he did not have the warrant in front of him. At the April 19, 2006 preliminary hearing confirmation hearing, the deputy district attorney represented to the court that there was no attachment A or B. Several days later Hallum came to her office and produced a stamped copy of the telephonic warrant with attachment B.

In supplemental points and authorities, the People asserted computers are a modern-day apparatus of drug manufacturing; thus, even though a computer was not specifically identified in the warrant, there was a sufficient nexus for the search of the computers in this case. In addition, assuming the computer is not considered to be an apparatus, argued the People, then the officer who looked at the computer after it was seized by Hallum had a good faith belief that he could look at the computer (based on the representation made by Hallum that the computer was properly seized), thus the evidence should not be suppressed. As a final argument, the People claimed that the doctrine of inevitable discovery should be applied because if the computer was not within the scope of the warrant Hallum would have recognized it upon seeing it and would have secured it through legal means.

Defendants opposition claimed standing and argued that anything found during the second search was fruit of the poisonous tree.

On April 28, 2006, the court heard the motion. Hallum testified at the hearing that he called Judge Kalashian to get a telephonic search warrant. Hallum told the judge he wanted to seize chemicals and apparatuses used to manufacture methamphetamine. Hallum was looking at attachment B when he was talking to the judge. It was his intention to describe all of the items listed in attachment B to Judge Kalashian, but he did not mention attachment B when he was talking to Judge Kalashian on the telephone. Hallum testified that an apparatus can be a computer.

Hallum testified that recipes are common items looked for in a search of a place believed to be involved in the manufacturing of methamphetamine. Hallum testified that he returned the warrant to Judge Kalashian to be signed. At the time it was returned it included attachment B. The judge signed the return. Hallum did not know why attachment B was not in the court file because it got turned in to the court. Hallum testified that when he executed the warrant he thought he had told Judge Kalashian about the items on attachment B. He would have stopped his search and gotten authorization for a search of the computer if he had known that it was not included within the scope of the warrant.

The People wanted to present evidence regarding the second warrant. The court precluded the evidence after defendant agreed that the second warrant would be valid absent the issue with the first warrant, but if the first warrant were invalid then the second warrant would be fruit of the poisonous tree.

The court found that if the officer had asked for the items listed in attachment B it was certain the judge would have authorized it, but the officer did not ask for what was listed in attachment B. The court found the authorization was for chemicals and apparatus and only included what the officer asked for on the telephone. The court found the good faith exception did not apply because the error was not by the magistrate. Finally, the court found that it had to read the term apparatus in a commonsense, overall manner and the term did not include computers. The court found that the unlawful search was the result of an unfortunate error by the officer. The court granted the motion to suppress as to any child pornography found on defendants computer.

Following the preliminary hearing, defendant was bound over on 24 counts. The court dismissed all the child pornography counts based on the granting of the suppression motion.

The People filed a motion for reinstatement of the dismissed counts. (Pen. Code,  871.5.) The People argued that the computer was reasonably considered a container and the search of the computer did not exceed the scope of the warrant. The People claimed the court should have accepted Hallums opinion that an apparatus could include a computer. The People argued that the items found on the computer and during the subsequent search of defendants home would have been discovered inevitably because Hallum would have obtained another warrant had he not believed he had already obtained authorization to search the computer. In addition, the People argued that the officers had a good faith belief that they had authority to search the computer.

Defendant filed opposition to the motion, arguing that the Peoples motion was raising new issues and challenging factual findings of the magistrate who granted the motion and that this was not permissible on a motion to reinstate.

The motion was argued and the court found as follows:

The inevitable discovery . The container I think there was a factual finding. By that, in terms of Judge OHara, that for the purposes of this case only he didnt find that a computer was an apparatus, so that takes care of that argument.

In terms of the inevitable discovery, I cant as a matter of law say that Judge OHara was wrong on that. Again, had I been making the ruling or I would have liked to have seen some type of prior cases where this Detective had requested search -- computers as part of a search warrant in a narcotics case and as a result the inevitable discovery in this case the facts I think is -- is speculation.

I think the Peoples strongest argument is the good faith exception. What is troubling to me as to that is the fact that the -- Officer -- the Detective makes reference to Exhibit B and then Exhibit B wasnt part of the court file. For whatever reason I dont know, and its easy to have things misplaced, but that was -- that was troubling.

Certainly the officer has substantial experience, but as a matter of law I cant say that Judge OHara was wrong and as a result the motion is denied.

DISCUSSION

A motion to reinstate a criminal complaint pursuant to Penal Code section 871.5 is reviewed on appeal by disregarding the superior courts ruling and directly examining the magistrates ruling. (People v. Massey (2000) 79 Cal.App.4th 204, 210.)^[1]

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial courts factual findings in determining the legality of the search. (People v. Balint (2006) 138 Cal.App.4th 200, 215.)

Whether the description in the warrant of the property to be seized is sufficiently definite is a question of law on which an appellate court makes an independent judgment. (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 108, italics added.) The key here, and we believe the key mistake made by the magistrate, was that the magistrate focused on the affidavit instead of on the warrant. The warrant stated that the officers were authorized to search for Methamphetamine Laboratory Equipment and items associated with methamphetamine manufacturing FURTHER DESCRIBED IN ATTACHMENT B. Because there was no attachment B at the time the warrant was issued, we must determine, and the magistrate should have determined, if the general scope of the warrant covered a search of the computer. [T]he scope of the officers authority is determined from the face of the warrant and not from the affidavit. (Id. at p. 109.) [I]n determining the property to be seized pursuant to a warrant, we are confined to the four corners of the warrant. (Id. at p. 112.)

First, we find that the affidavit provided probable cause to search for methamphetamine-related items. Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) A warrant based on probable cause to search for items associated with methamphetamine manufacturing would naturally include instructions for the manufacturing process. Although it is possible that a person manufacturing methamphetamine may be so experienced that he or she knows the process without looking at any instructions, it is more likely than not that instructions for the process would be in written form. A computer is an electronic container capable of storing data that is the equivalent of a writing. (People v. Balint, supra, 138 Cal.4th at pp. 208-210.)

The magistrate impliedly found that the issuing court had probable cause to search for a computer when it stated that if the officer had asked to search in accordance with attachment B Judge Kalashian [the issuing judge], Im certain, would have authorized it, and it would have been a proper authorization. Thus, the affidavit provided probable cause to search for items associated with methamphetamine manufacturing, including a computer.

Next, it must be determined if the warrant described with particularity the things to be seized. A warrant must be limited in scope to prevent a general, exploratory rummaging in a persons belongings (Coolidge v. New Hampshire(1971) 403 U.S. 443, 467) and the seizure of one thing under a warrant describing another (Marron v. United States (1927) 275 U.S. 192, 196).

The statement in the warrant that the items to be seized included methamphetamine laboratory equipment and items associated with methamphetamine manufacturing is more particular than cases finding that the description of the property to be seized is not sufficiently definite. (See Thompson v. Superior Court, supra, 70 Cal.App.3d at p. 108.) The scope of a warrant is sufficiently particular where its language imposes a meaningful restriction upon the objects to be seized. (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249.) The warrant listed with particularity the type of criminal activity that was being targeted, and thus the officers were not left to speculate as to what the underlying purpose or nature of the search was. The language of the warrant imposed a meaningful restriction upon the objects to be seized.

In addition, even if we were to find the warrant was not sufficiently particularized, the magistrate should have upheld the search under the good faith exception to the exclusionary rule. The case of People v. Rodriques-Fernandez (1991) 235 Cal.App.3d 543 is instructive on this point. In Rodriques-Fernandez officers prepared an affidavit of probable cause in support of a search warrant. In their package presented to the court they intended to include a list of specific items to be seized based on a standard form that listed the items to be seized in every major cocaine case. The package was delivered to the magistrate but the standardized page listing the items to be seized was inadvertently omitted from the package. The magistrate reviewed the application and approved it. The detective expected the items-to-be-seized page to be added and thought he had a legal valid warrant when he told other officers to search the residence based on the warrant. The appellate court found that the detectives only error was in failing to proofread. The detectives failure to proofread did not significantly diminish his objective good faith. (Id. at p. 552.)

Here the officer stated that when he was talking with Judge Kalashian it was his intention to describe all of the items associated with manufacturing of methamphetamine and that included computers. He thought he had told Judge Kalashian about the items on attachment B. The failure to proofread is very similar to the failure here on Hallums part to determine if he verbally listed all the items he intended to search for during his telephone conversation at midnight with the judge.

The mistake here, if any, was that the magistrate issued a warrant without sufficient particulars. There was no evidence that the search that was conducted here exceeded the scope of what the warrant would have authorized but for Hallums inadvertent error of failing to state all of the items contained in attachment B during his telephone conversation. [T]he basic inquiry is whether the officers had a good-faith, objectively reasonable belief that a warrant authorized the search they actually carried out. (People v. Rodigues-Fernandez, supra, 235 Cal.App.3d at p. 553.) The warrant here was not so facially deficient in failing to particularize the things to be seized that the executing officer could not reasonably presume it to be valid.

Although defendant seeks to attribute sinister motives to Hallums search and the disappearance of attachment B, the magistrate clearly found that it was just an error. An unfortunate error by this officer.^[2]This factual finding by the court defeats any argument by defendant that the officer was acting in bad faith or intentionally misled the court when it originally sought the warrant.

DISPOSITION

The order denying the Peoples motion to reinstate the criminal complaint is reversed.

___________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

_________________________________

WISEMAN, J.

_________________________________

HILL, J.

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^*Judge OHara granted the motion to suppress; Judge Paden denied the Peoples motion to reinstate the complaint.

^[1]We recognize that unification of the superior courts and the municipal courts no longer maintains the distinction of magistrate and superior court judge; for purposes of this appeal and for clarity in our discussion we will refer to the judge making the initial ruling denying the suppression motion as the magistrate.

^[2]In addition the judge who ruled on the motion to reconsider found that the officer made a mistake. It did not find any intentional wrongdoing by the officer.