THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; MARK MEYERS, Real Party in Interest.
S.F. No. 23906
Supreme Court of California
Aug. 23, 1979
25 Cal. 3d 67
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, Gloria F. DeHart and Jamie Jacobs-May, Deputy Attorneys General, for Petitioner.
Harold J. Truett, Public Defender, and Frank J. Cox, Deputy Public Defender, for Real Party in Interest.
OPINION
TOBRINER, J.-In this case we uphold against constitutional attack an efficient and unintrusive procedure of law enforcement: the police, in execution of a valid warrant to search defendant‘s premises for stolen goods, may properly seize items which defendant‘s victims identify as their property. In the instant case, victims of a burglary accompanied a police officer in the execution of a warrant to search defendant‘s house for more than 60 specified items of valuable personal property. In the course of the intensive search which ensued, the victims identified several dozen other articles of nominal value that had also been stolen in the burglary. On the basis of the victims’ identification, the police seized a quantity of these items.
On defendant‘s motion, the trial court suppressed evidence of all items seized which were not enumerated in the warrant. The People now seek review of that ruling, contending that the victims’ on-the-scene identification of property as contraband cloaked the police with constitutional authority to seize evidence in plain sight.
As we shall explain, the highly effective procedure which the police employed in the present case to identify and seize stolen property did not violate defendant‘s constitutional guarantees against unreasonable searches and seizures (
The undisputed facts disclose that on May 21, 1977, Juanita Lane returned from vacation with her husband to their suburban home at 257 Emerystone Terrace, Marinwood. On entering, the Lanes discovered that the house had been burglarized: it was in a “shamble like a hurricane had
An immediate inquiry of her neighbors led Mrs. Lane to suspect the tenants of the house at 268 Emerystone, including defendant Mark Meyers. When Mrs. Lane asked the police for an “immediate search warrant on this house,” however, the police refused “without evidence.” Mrs. Lane explained that “because of the amount of liquor that had been stolen from my home, I was entertaining the thought at that point there might be empty liquor bottles belonging to us that I could positively identify in [the suspects‘] garbage can,” but the police were not persuaded, and cautioned Mrs. Lane not to undertake a search without the tenants’ permission.
Notwithstanding the police warning, the Lanes entered defendant‘s garage that evening. Their search revealed a liquor bottle, a plastic orchid, a distinctively decorated iced tea glass, and “one card from a deck of playing cards that had been taken out of my tea cart drawer.” The Lanes notified the police of their discovery, and delivered to the police a partial report of items which they knew were missing from their house: “at the time we were told that this was sufficient-sufficient inventory to warrant the search warrant, that we needn‘t give all the items. [¶] We didn‘t even know everything at that point that was taken.”
Based upon Mrs. Lane‘s affidavit attesting that a detailed list of more than 60 items of valuable personal property, including a coin collection, silver, guns, jewelry, camera equipment, and furs, were concealed at 268 Emerystone, the Municipal Court of Marin County issued a warrant commanding “any sheriff, constable, marshal, policeman or police officer in the County of Marin” to make immediate search of the premises. Instructing the Lanes to return home until further notice, Sergeant Riddell of the Marin County Sheriff‘s Department served the search warrant on the occupans of 268 Emerystone, secured the house with a “cursory check” to make sure no one else was inside, and then summoned Mr. and Mrs. Lane to the premises.
Sergeant Riddell later described the procedure he followed during the ensuing search. Using the Lanes as “the source of identifying the property,” Riddell “[w]ent from room to room looking for stolen property that might belong to [Mrs. Lane]. . . . As I went through the room looking through drawers and closet space, [Mrs. Lane] inquired or made statements to the effect that property was or was not hers. . . . Each and
Defendant was charged with receiving stolen property (
The
The rule that the police may seize only those articles enumerated in the warrant is not, however, without limitation. Skelton v. Superior Court (1969) 1 Cal.3d 144 [81 Cal.Rptr. 613, 460 P.2d 485] formulates the “plain sight” exception as follows: “When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers’ efforts.” (Id., at p. 157.)5
Skelton reflects our earlier, pragmatic recognition in People v. Roberts (1956) 47 Cal.2d 374, 379 [303 P.2d 721], that “. . . in the course of conducting a reasonable search [police officers] d[o] not have to blind themselves to what [i]s in plain sight simply because it [i]s disconnected with the рurpose for which they entered.” (See Skelton v. Superior Court, supra, 1 Cal.3d at pp. 157-158.) Thus in Skelton we upheld the right of officers legally on the premises to seize articles which were “reasonably identifiable as contraband” on the rationale that it represented “a realistic balancing of the requirements of effective law enforcement and the necessity to protect the privacy of the citizen from unwarranted governmental intrusion.” (Id., at p. 158.)
In recognizing a “plain sight” exception to the general warrant requirement we did not, however, intend to violate the fundamental proposition that the scope of a search must be circumscribed by the reasons which justified its inception. (Terry v. Ohio (1968) 392 U.S. 1, 18 [20 L.Ed.2d 889, 903-904, 88 S.Ct. 1868].) Thus in People v. Hill (1974) 12 Cal.3d 731 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. De Vaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872], we fashioned a “nexus rule” to prohibit police officers, in the course of a lawful search, from indiscriminately seizing any items whatsoever. “The police officers who seize an article must be presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred. . . .
In the present appeal, the People address themselves to the plain sight rationale discussed above. Defendants do not contend that the warrant before us, which directed a search for, and seizure of, some 60 specific items of stolen property, was not sufficiently definite or particular. Moreover, the People persuasively urge that Officer Riddell was engaged in a good faith effort to execute the valid warrant to search defendant‘s residence and discover the denominated property when he uncovered and confiscated several dozen other miscellaneous items of stolen property. Thus the People argue that the property seized, although not mentioned in the warrant which authorized the search, may be admitted against defendant.
We have concluded that the circumstances of the case indeed justified the officer‘s seizures. Based upon a detailed and highly descriptive affidavit supplied to police by the burglary victim immediately after discovery of the crime, the magistrate properly issued a warrant directing a search of the entire premises at 268 Emerystone. The warrant mandated, in very particular terms, that Police Officer Riddell conduct a search for, and seizure of, some five dozen items of personal property. Specifically enumerated in the warrant were the victims’ more valuable possessions; as Mrs. Lane admitted, “We didn‘t know everything at that point that was taken. These were obvious things we knew were missing.”
The warrant thus clearly authorized the police officer to whom it was directed to make an extensive search of the entire house, looking into any places where he might reasonably expect that such small and easily secreted items as a “small gold spoon” or a “jade pin” might be hidden. As in Skelton, “[w]ith the issuance of this warrant, the judgment had already been made by a judicial officer to permit a serious invasion of [the defendant‘s] privacy.” (1 Cal.3d 144, 158.) Considering the nature and number of the objects named in the warrant, Officer Riddell could undoubtedly have had the assistance of fellow police officers in conducting the search prescribed; the presence of the burglary victims, acting essentially in the capacity of police agents instead of othеr officers, represented no significant additional intrusion upon defendant‘s privacy.
Moreover, by pointing out to Officer Riddell items of their stolen property, Mr. and Mrs. Lane provided the requisite “rational link” between the articles confiscated and possible criminal behavior by
A recent decision by the high court of one of our sister states further supports our conclusion that the present search did not unconstitutionally exceed the scope of the warrant which authorized it. In State v. Scigliano (1978)8 120 Ariz. 6 [583 P.2d 893], the police obtained a warrant to search defendant‘s premises on the basis of information supplied by two persons who admitted having stolen furniture and having sold it to defendant. In executing the warrant the police brought one of the informants with them for the search; she pointed out to the officers other items not specified in the warrant, “which she recognized as having been stolen by her or Brian and delivered to the defendant.” (Id., at p. 894.) These additional items were seized and ultimately admitted into evidence at trial.
On appeal, the Supreme Court of Arizona upheld the trial court‘s admission of evidence against defendant Scigliano‘s constitutional challenge. As the court held, “The record clearly supports the conclusion that the officers were on Scigliano‘s premises pursuant to execution of a valid search warrant and that the challenged items (those seized but unnamed in the warrant) of furniture were found during a limited search which was reasonably calculated to locate items actually named in the warrant, as opposed to a general exploratory search of the premises. We also believe that the facts surrounding the search, including information supplied by the informant during that search, provided a sufficient nexus between the disputed items and the crime for which the warrant was issued, so that the
We agree that no constitutional prohibition forbids the use of the burglary victims in the present case from assisting the police in the execution of their valid warrant to search. No purpose would be served, “other than that of an exquisite formalism” (Skelton v. Superior Court, supra, 1 Cal.3d 144, 158), by requiring that when Officer Riddell discovered unenumerated contraband or items which he suspected to be contraband he return to the issuing magistrate and obtain a second warrant directing the seizure of the additional contraband. Nothing in the present record indicates that Officer Riddell оriginally secured a search warrant as a pretext to conduct a general exploratory search of defendant‘s residence. Nor is there any evidence of vindictiveness or other improper motivation on the part of the burglary victims. The circumstances of the burglary rendered an exhaustive inventory of stolen property impossible. As Mrs. Lane stated, “Every closet had items removed from them. . . . We didn‘t even know everything at that point that was taken.” To require the victims of a massive burglary to recall every missing face-cloth and coffee pot is to require the impossible. The procedure which the police pursued in the present case reasonably accommodated the legitimate interests of effective law enforcement without seriously impinging upon defendant‘s right to be secure in his house and effects against indiscriminate governmental intrusion.9
The dissent also suggests that the failure of the police to consult and refer to the warrant transforms the search into an unlawful exploratory search. The warrant itself authorized a search which would explore into every corner and cranny which might conceal items as small as a jewelry pin. The fact that the officers did not refer to the warrant during the search did not extend the scope or time of the search beyond that authorized by the magistrate; the method of search that was followed-presenting items to the Lanes for identification-was one likely to turn up the property listed in the warrant if such property were present; the stolen property found in plain sight would still have been in plain sight had the police glanced from time to time at the warrant. In short, even though the officers failed to refer to the warrant during the search, the search actually conducted fell within the scope of that authorized by the warrant, and thus was not an illegal general search.
The recent decision of the United States Supreme Court in Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, [60 L.Ed.2d 920, 99 S.Ct. 2319], does not cast doubt upon the constitutionality of the present search. In Lo-Ji, a magistrate authorized seizure of two copies of obscene films, then accompanied police officers to defendant‘s store to determine on the spot
Unlike the present case, the officers and magistrate in Lo-Ji did not discover additional items subject to seizure in the course оf a good faith attempt to locate the property listed in the warrant. To the contrary, although the Lo-Ji warrant actually specified only copies of two films, the officers and magistrate decided before entering the store that they would pursue a search beyond the specified copies of two films and examine virtually every item on the premises. Thus in Lo-Ji the area of the search did not fall within the scope authorized by the specification of the warrant; instead the police and the magistrate intended from the onset to revise the warrant to correspond to the wide breadth and extent of the search.
In short, the magistrate in Lo-Ji issued what purported to be an open-ended warrant, which he filled in and completed only after the search was concluded. Consequently the warrant, instead of restraining the scope of the search, “left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure.” (442 U.S. 319, 325 [60 L.Ed.2d 920, 928, 99 S.Ct. 2319, 2324].) In the present case, by way of contrast, the officers exercised no discretion, but seized only items in plаin view identified to them by a reliable witness as stolen property.
Footnote 5 of the Supreme Court opinion suggests another ground which distinguishes the present case from Lo-Ji. As in the case at bar, the state in Lo-Ji defended the seizure on the ground that the items seized were in plain view. The Supreme Court, however, observed that “we have recognized special constraints upon searches and seizures of material arguably protected by the First Amendment [citations]; materials normally may not be seized on the basis of alleged obscenity without a warrant.” (442 U.S. 319, 326 fn. 5 [60 L.Ed.2d 920, 928, 99 S.Ct. 2319, 2324].) Unlike obscene matter, stolen property found in plain view may be seized without a warrant.
We have concluded, therefore, that the police officer in seizing items not denominated in the warrant transgressed no constitutional principle. We recognize that the distinguished trial judge in the instant case may have followed prior decisions, which he may have regarded as
The People also challenge the trial court‘s ruling supрressing “all items seized as evidence or stolen property found at the residence described in the search warrant which was located in rooms identified as being the private rooms of individuals other than [defendant].” The People correctly contend that Officer Riddell had authority to enter and search every room of defendant‘s residence, including private bedrooms of defendant‘s housemates. The warrant mandated a search of “those certain premises, including all rooms and buildings used in connection with the premises and adjoining same, and in any receptacle or safe therein, which premises are commonly called and designated as 268 Emerystone, Marinwood. . . .” The affidavit supporting the search warrant plainly indicated to the issuing magistrate that several individuals shared the house at 268 Emerystone as a communal residence. In light of the type and quantity of items stolen from the victims, the magistrate did not err in authorizing a search of the entire premises, nor did Officer Riddell exceed the limits of a reasonable search in seizing items from all rooms of the house. (See People v. Garnett (1970) 6 Cal.App.3d 280, 286-287 [85 Cal.Rptr. 769].) We therefore cоnclude that the trial court erred in suppressing evidence seized from rooms identified as being the private rooms of individuals other than defendant Meyers.
Let a writ of mandate issue directing the trial court to vacate its order insofar as it suppresses all items seized as evidence of stolen property not listed in the warrant, other than the automobile tape deck, and insofar as it suppresses all items seized as evidence of stolen property found in rooms identified as being the private rooms of individuals other than defendant.
Clark, J., Richardson, J., and Manuel, J., concurred.
MOSK, J.-I dissent.
The majority misread the
The facts of the case graphically illustrate the vice of this technique. The warrant issued by the magistrate to Sergeant Riddell described 60 items of personal property allegedly located in defendant‘s house. The police did not find a single one of those 60 items. Instead, as the majority quote, Sergeant Riddell testified that he and the victims “[w]ent from room to room looking through drawers and closet space . . . .” In this process “Each and every item was looked at,” every room of the house was searched, “thousands” of articles were scrutinized, and more than 80 pieces of personal property were seized-not one of which had been described in the warrant.
Contrary to the claim of the majority, this is manifestly a general exploratory search of the very type the warrant clause of the Constitution was designed to outlaw. (See Aday v. Superior Court (1961) 55 Cal.2d 789, 795-796 [13 Cal.Rptr. 415, 362 P.2d 47], and cases cited.) It also violates the statutory requirement of particularity in the warrant. (
In a vain attempt at justification the majority invoke the variation on the “plain sight” exception that we formulated in Skelton v. Superior Court (1969) 1 Cal.3d 144, 157 [81 Cal.Rptr. 613, 460 P.2d 485], i.e., “When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers’ efforts.” (Italics added.) The reliance is misplaced for at least two reasons.
As with each of the few permissible excuses for noncompliance with the warrant rule (see, e.g., Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507]; People v. Smith (1972) 7 Cal.3d 282, 286 [101 Cal.Rptr. 893, 496 P.2d 1261]), the Skelton exception is narrowly circumscribed and the burden is on the People to demonstrate compliance with each precondition to its applicability. (People v. Murray (1978) 77 Cal.App.3d 305, 310-311 [143 Cal.Rptr. 502].) As the empha-
The requirement of a “bona fide effort” to execute the warrant is explicated in Skelton itself. Reviewing the record of that case, we found an “absence of any substantial evidence as to the officers’ motivation” in seizing property not specified in the warrant; we illustrated the point by noting, “it does not appear for example that they deliberately delayed looking for or discovering the items listed in the warrant” (1 Cal.3d at p. 158, fn. 12). By contrast, in the case at bar there was not only such a deliberate delay in looking for the listed items-the police never even began to do so. As will appear, the record negates any possible claim of bona fides.
Thus Sergeant Riddell repeatedly admitted on cross-examination that he made no effort to look for the 60 articles described in the warrant; rather than consulting that list as he entered each room of defendant‘s house, he simply took every item of personal property in the room and asked Mr. and Mrs. Lane, the burglary victims, if it was theirs.2 In her testimony Mrs. Lane confirmed this fact, and added that she did not see the warrant at any time during the search; apparently it remained in Officer Riddell‘s pocket throughout the entire proceedings. Nor was the incompleteness of the stolen property list in the warrant an oversight: Mrs. Lane identified in court a number of articles seized by the police that she had known were stolen but had not specified in her affidavit for the warrant; she testified without contradiction that she had left them out because the police had advised they had a “sufficient inventory” to procure a warrant and she need not tell them of “all the items” to be seized.3
A recent decision of the United States Supreme Court is in point. (Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319 [60 L.Ed.2d 920, 99 S.Ct. 2319].) There a police investigator purchased two reels of film from an “adult” bookstore; after viewing them, the local town justice concluded they were obscene. The investigator asserted in an affidavit thаt additional “similar” material could be found on the premises, and
The United States Supreme Court unanimously reversed the ensuing conviction, reasoning that “This search warrant and what followed the entry on petitioner‘s premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the
It is true that in the case at bar the warrant described a substantial number of items to be seized; but as shown above it is also true that the police in fact listed only enough items to obtain the warrant, then ignored that list and seized instead every item claimed by the Lanes to be stolen. Lo-Ji Sales teaches that the
Nor have the People satisfied the requirement of Skelton that the unlisted contraband seized be “reasonably identifiable” as such. The
The majority admit that here “the items of personal property seized were not obvious objects of contraband,” and that without the assistance of the victims Officer Riddell “would not have known which property on defendant‘s premises was stolen.” (Ante, p. 75.) The majority nevertheless claim on two grounds that the officer‘s reliance on the victims to identify the property to be seized as contraband did not violate the letter of Skelton and the spirit of the Constitution. As will appear, however, neither ground is tenable.
First the majority argue that because Sergeant Riddell could have had the assistance of fellow police officers in conducting the search, his use of the victims instead for this purpose resulted in “no significant additional intrusion upon defendant‘s privacy.” (Ante, p. 74.) Reality, I submit, is otherwise. A police officer has no personal interest in the property to be seized in a search for stolen goods; he is therefore able to conduct himself objectively in looking for and identifying thаt property. The victim of the
Secondly, the majority attempt to satisfy the “nexus” requirement we set forth in People v. Hill (1974) supra, 12 Cal.3d 731, 763, i.e., “The police officers who seize an article must be presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behаvior can be inferred.” It is argued that “the Lanes articulated specific facts” from which Officer Riddell could reasonably infer that the items seized had been stolen from them. (Ante, p. 75.) The record, unfortunately, does not support this claim. To begin with, in the testimony of Mrs. Lane relied on by the majority the witness does not recount how she identified various items of property to Officer Riddell during the course of the search; instead, she simply explains how she can identify such items when they are presented to her in court by the deputy district attorney.7 In any event, while more than 80 items not listed in the warrant were seized by Officer Riddell, Mrs. Lane was asked on the stand about only a dozen of them; the record is silent as to her means, if any, of identifying the rest. And even as to those few, her “identification” was usually no more than a brief description of the obvious physical attributes of the article-e.g., its condition, shape, or color-all readily apparent to any casual observer.8
It is precisely to forestall such risks that the Constitution requires a warrant issued by a magistrate to permit the police to enter a private home: “An intrusion by the state into the privacy of the home for any purpose is one of the most awesome incursions of police power into the life of the individual. Unrestricted authority in this arеa is anathema to the system of checks envisaged by the Constitution. It is essential that the dispassionate judgment of a magistrate, an official dissociated from the ‘competitive enterprise of ferreting out crime’ (Johnson v. United States (1948) 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367]), be interposed between the state and the citizen at this critical juncture.” (People v. Ramey (1976) 16 Cal.3d 263, 275 [127 Cal.Rptr. 629, 545 P.2d 1333].) Here the police substituted the untested opinion of interested private parties for the “dispassionate judgment of a magistrate” in determining the scope of the search and the property to be seized. For the reasons given, the technique is constitutionally intolerable. (People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69, 78-80 [143 Cal.Rptr. 382].)9
It follows that the property seized by Officer Riddell was neither in fact nor in law “reasonably identifiable as contraband” within the meaning of
The police practice here in issue, moreover, is not only unlawful, it is also dangerous. In the case at bar the unauthorized persons who accompanied the officer were the victims of the crime; in Williams and Scigliano it was an erstwhile accomplice turned police informer. It needs little prescience to visualize the potential for explosive confrontations that will arise if these or other interested third parties become routinely involved, whether gratuitously or by police sufferance or invitation, in the process of entering private homes and seizing personal property found inside.10 The majority nevertheless place their stamp of approval on this procedure, upholding the participation of the victims in Officer Riddell‘s search on the ground they were “acting essentially in the capacity of poliсe agents” (ante, p. 74). We ignore at our peril, I submit, the sad lessons that history teaches as to the high price of vigilante justice: when private citizens are encouraged to act as “police agents,” official lawlessness thrives and the liberties of all are put in jeopardy. Surely we should not now repeat the mistakes of a discredited era of our frontier past.11
As the United States Supreme Court recently reiterated, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the
The specter of crime victims or criminals turned informers joining the police in ransacking private homes in the name of “efficiency” is a chilling prospect indeed. Not surprisingly, the device has never before
Bird, C. J., and Newman, J., concurred.
APPENDIX
“Q. [by the deputy public defender]. Now, did you at any time take the search warrant with the list of things that are mentioned in here and actually look for those particular items? A. [by Officer Riddell]. Yes, sir.
“Q. And when did you do that? A. It would have been shortly after the search.
“Q. Shortly after the search? A. Subsequent thereto.
“Q. Do you mean by that Mr. or Mrs. Lane came in and pointed out items that were theirs, you confiscated all those itеms and went through the list and see what items you confiscated on the list? Would that be a fair statement? A. In essence, yes.
“Q. When Mr. and Mrs. Lane came in with you, prior to the time they came in with you, did you make a specific search for each and every one of these items listed on the search warrant? A. No, sir.
“Q. All right. And did you and the Lanes go through each and every item in [Glenn Spencer‘s] room? A. We did.
“Q. Did you take out the search warrant, go through the list and see if any items in the search warrant were there? A. I did not.
“Q. Could you tell me how many items in Glenn Spencer‘s room you showed to the Lanes? A. Thousands.
“Q. Could you tell me how many items in Jamie Gaumer‘s room you showed to the Lanes? A. Hundreds.
“Q. Now, after you had completed the search of Glenn Spencer‘s room, where did you and the Lanes go? A. The hall closet between Spencer‘s room and Gaumer‘s room.
“Q. All right. And again, was the same procedure followed: all the items in that particular closet were shown to the Lanes? A. That‘s correct.
“Q. And again you did not go through the list, check off and see if the items were there? A. That‘s correct.
“Q. How many items did you show the Lanes from the hall closet? A. A number. Probably less than a hundred.
“Q. Now, was-when you entered into the room you identified as Mark Meyer‘s was the same procedure followed again: you take each and every item in the room and show it to the Lanes and see if they could identify it? A. That‘s correct.
“Q. And again, you did not take the list in the search warrant and look for each of those particular items? A. We did not.
“Q. After you went through the room that you identified as Mark Meyer‘s did you proceed to another area in the house? A. Yes, sir, I did.
“Q. All right. And what area was that? A. This would have been the room opposite Mark Meyers’ room.
“Q. All right. Did you find any particular items in that room? A. Yes, sir.
“Q. All right. And was the same procedure followed with you taking items and showing them to the Lanes and having them identify them? A. That‘s correct.
“Q. And how many items did you show the Lanes from that room? A. I would say less than 50.
“Q. All right. And how many items of those 50 or so, or less than 50, did the Lanes identify as theirs?
“A. Twenty-one.
“Q. Now, of these 21 items, were any of those items listed in the search warrant? A. Not specifically, no.
“Q. And again, you did not take the search warrant and the items listed therein and go through the rooms to see if any of thоse items were there? A. That‘s correct, I did not do that.
“Q. After looking in that particular room, did you go into another area of the house? A. Yes, sir.
“Q. Where was that? A. This was the living room area.
“Q. All right. And again, was the same procedure followed: showing items to the Lanes. A. Yes.
“Q. How many items in the living room were shown to the Lanes? A. Everything that was in the room.
“Q. All right. And again, you did not take the search warrant and go through the list and look for the particular items listed therein? A. That‘s correct.
“Q. After the living room, where did you go? A. The kitchen area.
“Q. All right. And again, was the same procedure followed: showing items to the Lanes? A. Yes.
“Q. How many items were shown to the Lanes? A. A number.
“Q. Could you give me an estimate of how many? A. In the area of a hundred.
“Q. Would it be fair to state that you showed the Lanes every item that was in the room? A. That‘s correct.
“Q. How many items did they identify as theirs? A. They identified six items belonging to them.
“Q. All right. And were any of those six items listed in the search warrant itself? A. No, sir.
“Q. All right. And again, you didn‘t go into the room with the search warrant and look for those particular items that were listed? A. That‘s correct.
“Q. And after the kitchen, where did you go? A. Family room.
“Q. Again, the same procedure followed: showing the items in that room to the Lanes? A. That‘s correct.
“Q. And again, you didn‘t go through the list on thе search warrant in the family room looking for particular items listed? A. That‘s correct.
“Q. And after the family room, where did you go? A. To the garage area.
“Q. And again, the same procedure was followed? A. Yes, sir.
“Q. All right. And how many items did you show the Lanes there? A. Again, a number. I don‘t know the exact number.
“Q. Did they identify any items belonging to them? A. No, they did not.
“Q. And again, you did not take the search warrant and go through the list and see if the items listed in the search warrant were in the garage? A. That‘s correct.
“Q. After the garage, where did you go? A. That concluded the search.”
Notes
“(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:
“(1) The search or seizurе without a warrant was unreasonable.
“(2) The search or seizure with a warrant was unreasonable because (i) the warrant is insufficient on its face; (ii) the property or evidence obtained is not that described in the warrant; (iii) there was not probable cause for the issuance of the warrant; (iv) the method of execution of the warrant violated federal or state constitutional standards; (v) there was any other violation of federal or state constitutional standards.” The relevant testimony is quoted in an appendix to this opinion.
In Williams an informant who had been involved in the crimes with which defendant Williams was charged supplied the basis for the issuance of a warrant to search Williams’ residence for stolen oil well drilling equipment. Several police officers executed the warrant at the residence. As a result of the search the officers seized a large number of items which the informant claimed were stolen, although only a few were described in the warrant.
To assist the officers in the search, the informant accompanied them to Williams’ residence and pointed out not only where they might find incriminating evidence, but also what items had been stolen. One detective testified that without the informant‘s assistance he would have had no idea what items to seize. Based on the ground that the warrant was too general, the trial court suppressed all but 11 items.
The appellate court rejected the People‘s assertion that even if the warrant were too general with respect to the items seized, the police officers still had authority to seize under the plain view doctrine. As the court held, “We decline to expand the plain view doctrine[,] which is designed to place a reasonable limit on the police discretion without The majority disapprove Williams (at fn. 9), but fail to refute its arguments. I would follow this clear California precedent rather than, as do the majority, an opinion of the Arizona court. (State v. Scigliano (1978) 120 Ariz. 6 [583 P.2d 893].) In any event, the latter cаse is clearly distinguishable on its facts. As noted above, in the present matter the police conducted a general exploratory search that was not intended to discover merely the items named in the warrant, and none of those items was in fact found. In Scigliano, by contrast, the unlisted articles were discovered “during a limited search which was reasonably calculated to locate items actually named in the warrant, as opposed to a general exploratory search of the premises” (id., at p. 896), and “Many, if not all, of the items specified in the warrants were found.” (Id., at p. 894.)