Lead Opinion
Opinion
Real party in interest Maurice Xavier Nasmeh has been charged with the murder of Jeaniñe Harms (Pen. Code, § 187)
Because the warrant authorized the search and seizure in question, and because in any event the search and seizure were reasonable under the automobile exception to the Fourth Amendment’s warrant requirement, the superior court erred in granting Nasmeh’s motion to suppress. We will issue the writ.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background Facts and Police Officer’s Affidavit
Following Harms’s disappearance over the weekend of July 28 through 29, 2001, police investigation focused on Nasmeh as the last person to report seeing her alive when he left her house in Los Gatos in the early morning of July 28. The police obtained a search warrant to search Nasmeh’s home and car for certain items missing from Harms’s house, including a large Persian-style rug.
According to the affidavit of Officer Steve Wahl of the Los Gatos-Monte Sereno Police Department offered in support of a warrant to search Nasmeh’s home and vehicle, on July 30, 2001, Chigiy Edson-Binell, Harms’s Mend and landlord, filed a missing-person report regarding Harms, who had failed to report to work on Monday and whose family and friends had not been able to contact her all weekend. Edson-Binell had noticed that Harms’s car had remained in her driveway all weekend. When the police and Edson-Binell went inside Harms’s residence, she was absent and several items were missing, including seat cushions and pillows from the couch, a rug usually in front of the couch, and Harms’s purse.
During the investigation, the police learned from a neighbor of Harms that in the early morning hours of July 28, 2001, he heard a loud bang similar to a gunshot. When he looked out his window, he saw a vehicle headlight make a quick turning movement, as if a vehicle was possibly making a U-turn, in front of Harms’s house.
In the affidavit, Officer Wahl also averred that “I know, based on my training and experience,” that “people who commit murder and transport their victims in their vehicles may, in an attempt to conceal their guilt, try to clean their vehicle in an attempt to conceal or rid the vehicle of incriminating evidence.”
II. The Search Warrant
On August 3, 2001, a magistrate signed the following search and seizure warrant:
“To any Sheriff, Constable, Marshal, Police Officer or Peace Officer in the County of Santa Clara:
“Proof by affidavit[] having been made before me this day by Steve Wahl that there is probable cause for believing that evidence of the commission of [murder] [has occurred] ....
“You are therefore commanded in the daytime to make search of [a home in] San Jose, Santa Clara County, California ....
“And . . . Maurice Xavier Nasmeh, date of birth February 3, 1964; described as a white male adult, 5' 8" tall, 180 pounds, brown hair, green eyes, wherever located in Santa Clara County.
“And ... [a] 2000 Jeep Cherokee, gray in color, bearing California license number 4MUC016, wherever located in Santa Clara County;
, “Property described as follows:
“1. Pair of tan colored khaki shorts;
“2. Pair of brown colored utility-type boots;
“3. Blood sample from Maurice Xavier Nasmeh;
“4. Receipts tending to show the washing or detailing of Nasmeh’s vehicle;
“5. Couch cover with a blue floral pattern;
“6. [Two sofa] cushions white in color with blue pin-stripes;
“7. Woman’s black leather purse containing items associated with Jeanine Harms;
“8. Credit cards and/or personal checks bearing the name of Jeanine Harms;
“9. Floor rug described as being mostly blue Persian style wool rug with a tag on the back;
“10. Indicia of occupancy consisting of articles of personal property tending to establish the identity of the person in control of the premises searched, including but not limited to phone bills, utility bills, rental agreements, identification papers, canceled mail and personal letters. Other evidence of ownership and control may be found on the occupants and may be keys, rent receipts and identification with names and addresses.
“And if you find the same or any part thereof, to hold such property in your possession under California Penal Code Section 1536.” (Boldface and capitalization of entire word attributes removed.)
Various items of clothing were seized from Nasmeh’s house. Wahl visually inspected Nasmeh’s Jeep Cherokee to see if it contained any of the listed items, but saw none. The car was then towed to the police crime laboratory for forensic processing. Certain forensic evidence was purportedly found on a tape lift of the rear cargo area of the vehicle.
III. The Motion to Suppress
As alluded to, after Nasmeh was charged with murdering Harms he filed a motion under section 1538.5 to quash the search warrant and to suppress evidence seized under the warrant.
The superior court concluded that seizing Nasmeh’s car and taking it to the crime laboratory for forensic examination exceeded the scope of the search warrant. The court further concluded that the automobile exception applied to the police officer’s warrantless search of the car, but the duration of the search violated Nasmeh’s possessory interest in the car without adequate justification. The court granted Nasmeh’s motion to suppress forensic evidence the police purportedly discovered in the rear cargo area of Nasmeh’s Jeep Cherokee.
The superior court’s reasoning regarding the scope of the warrant is important to understanding how the court erred in suppressing the evidence. We therefore set forth its ruling at length. The court wrote:
“The seizure and removal of the jeep exceeded the scope of the warrant....
“The permissible scope of any search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. This protection against wide-ranging exploratory searches is embodied in the requirement that no warrant issue unless it ‘particularly describes the place to be searched and the persons or things to be seized’
“At the hearing on defendant’s Motion to suppress the officer testified that it was his intention to seize the vehicle and transport it to the crime lab to look for biological evidence like blood, hair, or saliva or traces of the items mentioned in the warrant. . . . [T]he technician who conducted the forensic examination[] indicated that he actually conducted a general search for fingerprints, trace evidence, and biological evidence. The warrant and affidavit make no mention of the possible existence of fingerprints, hair, fiber or other biological or trace evidence. The magistrate was not asked to consider whether probable cause existed to seize the car as evidence of a crime, and authority to seize and forensically examine the vehicle was not granted in the warrant itself. [‘]As stated in Burrows v. Superior Court (1974)
“This warrant does not authorize the police to seize the vehicle for an unspecified and lengthy period of time, and to conduct an unlimited search for fiber or other microscopic evidence. To find otherwise would open the door to general exploratory searches far beyond the reach of the probable cause set forth in any search warrant affidavit.
“ ‘If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.’ (Horton v. California (1990)
The superior court was unable to find any alternative theory that would permit introducing the evidence purportedly found in Nasmeh’s vehicle. As will be discussed below, the court ruled that the automobile exception to the warrant requirement could not apply because the police had held the car for too long, making a warrantless search and seizure unreasonable. Accordingly, the court granted Nasmeh’s motion to suppress the evidence.
The People filed a notice of intention to file a petition for writ of mandate and requested a temporary stay of the trial proceedings. We issued the requested stay on April 13, 2006.
I. Forfeiture
Before turning to the merits, we must resolve Nasmeh’s claim that the People did not present to the superior court their contention that the warrant’s scope encompassed the seized evidence and have forfeited their Fourth Amendment claim on review.
Nasmeh’s claim is unpersuasive. The purpose of forfeiture rules generally is to avoid the unfairness that would occur on review if a party were permitted to “argue the [lower] court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005)
II. Searches and Seizures Under the Warrant
We now consider whether the search and seizure were within the scope authorized by the warrant.
The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A. Overbreadth
The superior court’s ruling shows that the court conflated two concepts: overbreadth and particularity. The court was correct, of course, about the unconstitutionality of wide-ranging warrants. The Fourth Amendment was adopted as a bulwark against the reviled practices of issuing general search warrants and writs of assistance. (See Atwater v. Lago Vista (2001)
But, contrary to the superior court’s reading of the warrant, the warrant here was not overbroad. It sought, in whole or in part, 10 specific items or particularly described groups of items related to Harms’s disappearance and Nasmeh’s possible involvement—e.g., a blood sample from Nasmeh, two sofa cushions, or Harms’s credit cards and personal checks. The court’s concerns about “unlimited searches],” “general exploratory searches,” and “wide-ranging exploratory searches” were misplaced, because nothing in the warrant’s language authorized any general search.
We now turn to another basis for the superior court’s decision that the search and seizure exceeded the warrant’s scope: the lack of the warrant’s specification that the police were to search for and seize material inside Nasmeh’s Jeep Cherokee that might, on inspection, be found to constitute trace evidence.
“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)
Reviewing de novo the superior court’s analysis and ultimate conclusion that the warrant’s description was inadequate, we conclude that the court erred.
When criminal defendants claim that a warrant is too general, they are on firmer constitutional ground than when they claim that an otherwise valid warrant that properly limits the items of property to be searched for and seized is invalid because terminology further defining the nature and quality of the items is insufficiently precise. A general warrant offends the Fourth Amendment in part because it leaves too much “ ‘ “to the discretion of the officer executing the warrant.” ’ ” (Andresen v. Maryland, supra,
Moreover, even if a search for constituent parts of an item did present Fourth Amendment problems because the warrant did not mention such parts, here the warrant authorized the search and seizure of “any part” of the listed items. The question before us is the adequacy of this particular warrant’s language, which referred to “part[s],” but did not recite a list of such possible further descriptive terms as fractions, pieces, components, particles, elements, flecks, filaments, films, specks, strands, shards, residues, remnants, samples, subsets, trace amounts, or the like.
“[T]he requirement that a search warrant describe its objects with particularity is a standard of ‘practical accuracy’ rather than a hypertechnical one.” (U.S. v. Peters (8th Cir. 1996)
C. Seizure of the Vehicle
We next turn to whether the seizure of Nasmeh’s Jeep Cherokee offended the Fourth Amendment. We conclude that it did not.
Notwithstanding the superior court’s ruling that “authority to seize and forensically examine the vehicle was not granted in the warrant,” the police did not violate the Fourth Amendment in seizing Nasmeh’s Jeep Cherokee. The vehicle could not have been properly searched without being seized, and it would vitiate the state’s power to execute a lawful search if the object of the search could not be seized for a reasonable time to prevent the loss or destruction of evidence pending the search. (See Dixon v. Wallowa County (9th Cir. 2003)
And contrary to the superior court’s view, taking Nasmeh’s seized vehicle to the crime laboratory to search for and conduct a scientific analysis of trace items did not offend the Fourth Amendment. In People v. Talbot (1966)
D. Time Taken to Complete Execution of the Warrant
The next question that arises is whether the time taken to complete the execution of the search warrant violated the Fourth Amendment. We conclude that it did not.
The superior court based its ruling in part on the length of time it took to complete the execution of the search warrant. It ruled that the “warrant does not authorize the police to seize the vehicle for an unspecified and lengthy period of time.” Because this ultimate determination was based on resolving a mixed question of law and fact that is, however, predominantly legal, we review it de novo. (People v. Alvarez, supra,
In this, too, the superior court erred. The warrant was dated August 3, 2001. According to Wahl’s testimony at the suppression hearing, the next day, August 4, he searched Nasmeh’s vehicle for obvious and gross evidence that any of the warrant’s listed items were present, and found
There was no constitutional violation in this case. As a general proposition, “ ‘[t]he Fourth Amendment does not specify that search warrants contain expiration dates.’ ” (U.S. v. Sims (10th Cir. 2005)
E. The Warrant Authorized the Searches and Seizures
In sum, the state of the law convinces us that the superior court erred in granting the motion to suppress insofar as it found the warrant incompatible with the
III. Warrantless Search Under the Automobile Exception
The People also assert that the police need not have sought a warrant in the first place if probable cause existed to search the vehicle.
We agree. When the police have probable cause to believe an automobile contains contraband or evidence they may search the automobile and the containers within it without a warrant. (California v. Acevedo, supra,
It is also well established that “ ‘[t]he 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.’ ” (California v. Acevedo, supra,
In the case of a warrantless search and seizure, the burden of proof rests on the People to show that the search and seizure were reasonable under the Fourth Amendment.. (People v. Williams (1999)
As noted, the superior court concluded that delay in returning Nasmeh’s automobile
In fact, however, the length of time during which the police held Nasmeh’s Jeep Cherokee did not make the search unreasonable. “Not a single published federal case speaks of a ‘temporal limit’ to the automobile exception. The Supreme Court has repeatedly stated that a warrantless search of a car (1) need not occur contemporaneously with the car’s lawful seizure and (2) need not be justified by the existence of exigent circumstances that might have made it impractical to secure a warrant prior to the search. [Citations.] Therefore, the passage of time between the seizure and the search of [a] car is legally irrelevant.” (U.S. v. Gastiaburo (4th Cir. 1994)
There is no claim here, nor was evidence presented below, that Nasmeh requested return of his car or objected to its seizure at any time. Nasmeh emphasizes that the superior court made a factual finding that the prosecution’s evidence failed to explain or justify the duration of the seizure of the Jeep. But the findings of fact made by the court concern the specific dates on which certain events occurred as well as what actually happened. We review these findings under the deferential substantial evidence standard. (People v. Alvarez, supra,
The duration of the search was reasonable. The police were investigating Harms’s disappearance. It was possible that she had been kidnapped or murdered. There was little or no direct evidence and apparently there were no eyewitnesses. The evidence technician testified that the key to the seized vehicle was missing and he could not gain immediate access to it. Moreover, the police held the vehicle for almost two weeks after completing their search, and Nasmeh does not allege in his return when he first sought the vehicle’s return, if he did at all; rather, in his argument accompanying his return, he states that the questions of “what prompted the release of the Jeep or . . . whether or when [Nasmeh] sought to regain possession of his vehicle” were not addressed in the proceedings before the superior court. The record does not give us the impression that Nasmeh needed to regain possession of his vehicle with any urgency. In light of the serious nature of the possible crimes and the complexity of the investigation, we cannot agree with the superior
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order granting Nasmeh’s motion to suppress evidence purportedly taken from his Jeep Cherokee and to enter a new order denying the motion. In the interests of justice, this opinion is made final immediately on filing with regard to this court. (Cal. Rules of Court, rule 8.264(b)(3).) This court’s order of April 13, 2006, temporarily staying the trial proceedings, is vacated.
Bamattre-ManouMan, Acting P. J., concurred.
Notes
All further statutory references are to the Penal Code.
At Nasmeh’s request, we strike the petition’s exhibit R because it was not considered by the superior court.
The People point out that Nasmeh’s motion is entitled “Superseding notice of motion and motion to suppress evidence . . .” because Nasmeh’s initial filing was rejected for failure to comply with local rules of court.
Instructive on this point is State v. Petrone (1991)
Similarly, the police here were entitled to use technology to determine the evidentiary value of trace materials possibly coming from an item listed in the warrant and puiportedly found in Nasmeh’s car. “The seizure of [listed items] is within the plain language of the warrant; their recovery, after attempted destruction, is no different than decoding a coded message lawfully seized or pasting together scraps of a tom-up ransom note. [Citations.] The ... warrant did not prescribe methods of recovery or tests to be performed, but warrants rarely do so. The warrant process is primarily concerned with identifying what may be searched or seized—not how—and whether there is sufficient cause for the invasion of privacy thus entailed.” (U.S. v. Upham (1st Cir. 1999)
The warrant specified that the searches it authorized were to occur “in the daytime,” ,but did not set a time limit for executing the searches. Section 1534, however, requires that a search warrant be executed and returned within 10 days after its issuance date. It also provides, without again mentioning return, that “[a]fter the expiration of 10 days, the warrant, unless executed, is void.”
Nasmeh does not invoke section 1534 in this court, nor does he state in his return that he did so in the superior court. Accordingly, we need not discuss the implications of the statutory requirements set forth in section 1534.
Concurrence Opinion
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)
“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
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.
“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)
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 any 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.
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)
Steve 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)
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)
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)
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 searched. 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)
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.”
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.
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 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)
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
in. 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.