Gordon v. Superior Court

• Decision Date: 26 June 1997
• Docket Number: No. B109127,B109127
• Citation: 55 Cal.App.4th 1546,65 Cal.Rptr.2d 53
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5122, 97 Daily Journal D.A.R. 8316 Walter L. GORDON III, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE, Real Party in Interest.

Page 53

65 Cal.Rptr.2d 53

55 Cal.App.4th 1546, 97 Cal. Daily Op. Serv. 5122,

97 Daily Journal D.A.R. 8316

Walter L. GORDON III, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent The PEOPLE, Real Party in Interest.

No. B109127.

Court of Appeal, Second District, Division 1, California.

June 26, 1997.

Rehearing Denied July 15, 1997.

[55 Cal.App.4th 1548] Walter L. Gordon III, Los Angeles, in pro. per., for Petitioner.

No appearance for Respondent.

Gil Garcetti, District Attorney, Brent Riggs and William Woods, Deputy District Attorneys, for Real Party in Interest.

MIRIAM A. VOGEL, Associate Justice.

When a warrant is sought for the search of the office of a lawyer who is not the target of a criminal investigation, a special master must be appointed to accompany the person who serves the warrant. At the scene of the search, the special master must tell the attorney what he is looking for, and advise the attorney of his right to voluntarily relinquish the items requested. If the attorney declines, the special master then conducts the search within the areas permitted by the warrant, and seizes the authorized items. If the attorney tells the special master that a seized item should not be disclosed, that item must be sealed by the special master "and taken to court for a hearing." (Pen.Code, § 1524, subd. (c).) ¹ The hearing, at which the attorney is entitled to raise any claim of privilege and to request the return of the property, "shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make any motions or present any evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case the matter shall be heard at the earliest possible time." (Ibid., italics added.)

In this writ proceeding, we hold that, at the time the attorney requests non-disclosure of any seized item, the special master must advise the attorney and the party serving the warrant of the date, time and place of the hearing required by subdivision (c) of section 1524. We also hold that, until a hearing is held to determine whether the sealed documents contain privileged materials or infringe upon the privacy rights of nontargeted third parties, the documents must remain sealed.

FACTS

On March 15, 1996, at the request of the California Department of Insurance, a magistrate issued a warrant authorizing the search of the law offices of Walter L. Gordon III for documents pertaining to three named individuals (Johnny Hamilton, Bernadette Palmer and Nathan Tapper). As required by subdivision (c) of section 1524, a special master was appointed and was present on March 19 when the warrant was executed. Among other things, a check register and canceled checks were seized. Of the 326 checks, one had been issued to Johnny Hamilton, none to the other named individuals (so that 99-2/3 percent of the seized check records were irrelevant to the investigation). At Gordon's request, the special master sealed the checks, check stubs and other items. Three days came and went but no hearing was requested by anyone.

Ten days after the search (on March 29), an investigator from the Department of Insurance appeared in the courtroom of the judge who had issued the warrant, where he About eight months later, when Gordon first learned that his records had been unsealed, he immediately filed a motion for the return of his records, an order unsealing the affidavit supporting the search warrant, and a finding that his records had been "unlawfully unsealed." In a supporting declaration, Gordon explained that the canceled checks and his check register constituted "confidential payout information on numerous clients over a number of years," none of whom were involved in the investigation initiated by the Department of Insurance. ²

presented a written application explaining that the warrant had been executed on March 19 and that no hearing had been requested by Gordon within the three days provided by subdivision (c) of section 1524, and requesting an order unsealing all of the items seized in the search. Although no notice of this application had been given to Gordon, the court granted it on the same day it was presented and Gordon's records were turned over to the Department of Insurance.

The District Attorney's office filed written opposition to Gordon's motion, objecting to disclosure of the affidavit supporting the warrant (confidential informants had provided information) but basically ignoring Gordon's request for the return of his records. At the hearing held on Gordon's motion (before a judge other than the one who issued the warrant), Gordon objected to the Department of Insurance's failure to notify him before it asked the court to unseal the records (and to the court's willingness to do so without notice to Gordon). At the conclusion of the hearing, the court ruled that the records were not unlawfully unsealed because the statute is unclear on the issue of notice, that it was Gordon's burden to request a hearing within three days after the warrant was executed and that, by his failure to do so, he waived whatever right he might have had to object to the Department of Insurance's failure to notify him when it later requested the order unsealing the seized records. The court denied Gordon's motion (but did order the prosecutor to give Gordon copies of his checks).

Gordon then filed a petition for a writ of mandate, asking us to hold that the burden to request a hearing was not his and to find that the order unsealing his records was "unlawful." In response to our order to show cause, the District Attorney contends the seized records are not privileged and that, therefore, there was no harm to anyone when they were unsealed. Both sides miss the main point.

DISCUSSION

I. BACKGROUND

In 1978, the United States Supreme Court held that the Fourth Amendment does not "prohibit the States from issuing warrants to search for evidence simply because the owner or possessor of the place to be searched is not then reasonably suspected of criminal involvement." (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 560, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525 [search of a college newspaper].) Later the same year, the California Legislature amended section 1524 (which since 1872 has listed the grounds for issuance of a search warrant) to prohibit the issuance of warrants for any item described in Evidence Code section 1070 (news sources). (Stats.1978, ch. 1054, § 1, p. 3255.)

The following year (in March 1979), the Attorney General of the State of California obtained a warrant for the search of a law firm's offices in connection with a major Medi-Cal fraud investigation. While three agents from the Attorney General's office executed the warrant and spent several hours searching the law firm's records for a nine-page list of documents, the law firm applied for and obtained a temporary restraining order (followed three weeks later by a preliminary injunction) that prohibited the search authorized by the warrant.

                (Deukmejian v. Superior Court (1980) 103 Cal.App.3d 253, 254-256, 162 Cal.Rptr. 857.)   Faced with the trial court's legitimate concerns about the privacy rights of the law firm and its nontargeted clients and the equally legitimate need for the Attorney General to go forward with his search subject to reasonable limitations, Division Three of our court issued an alternative writ suggesting "a compromise solution which called for cooperation among the trial court, the [Attorney General] and [the law firm]."  (Id. at p. 258, 162 Cal.Rptr. 857.)
                

In response (and with the encouragement of many professional organizations), the Legislature amended section 1524 (effective January 1, 1980) to require the appointment of a special master when a warrant issues for a search for evidence in the possession of lawyers, physicians, psychotherapists and clergymen who are not themselves suspected of criminal activity. (Deukmejian v. Superior Court, supra, 103 Cal.App.3d at pp. 258-259, 162 Cal.Rptr. 857; Stats.1979, ch. 1034, § 2, p. 3573.) Although there have been subsequent amendments to section 1524, none of them have affected the basic provisions with which we are concerned in this case. ³

II. THE STATUTE

As relevant (that is, omitting the grounds for issuance of a warrant), section 1524 provides as follows:

"(c) [N]o search warrant shall issue for any documentary evidence in the possession or under the control of any person, who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a clergyman as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:

"(1) At the time of the issuance of the warrant the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.

"(2) If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.

"At the hearing the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law....