People v. Rios

• Decision Date: 31 October 1988
• Docket Number: No. C003453,C003453
• Citation: 252 Cal.Rptr. 653,205 Cal.App.3d 833
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eddie Ray RIOS, Defendant and Appellant.

Page 653

252 Cal.Rptr. 653

205 Cal.App.3d 833

The PEOPLE, Plaintiff and Respondent, v. Eddie Ray RIOS, Defendant and Appellant.

No. C003453.

Court of Appeal, Third District, California.

Oct. 31, 1988.

Certified for Partial Publication ^*

Review Denied Jan. 19, 1989.

Richard L. Phillips, Burlingame, and Linnea M. Johnson, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert

Anderson and Joel Carey, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant Eddie Ray Rios appeals following conviction by jury on two counts of first-degree burglary (Pen.Code, § 459; all further statutory references are to this code unless otherwise indicated). ¹

On appeal defendant complains his motion to suppress evidence pursuant to section 1538.5 was erroneously denied. He asserts a sheriff's deputy unlawfully seized a television set when he searched defendant's home under the authority of a warrant. Defendant also alleges prejudice due to prosecutorial misconduct. In this published portion of our opinion, we conclude the deputy lawfully seized the television because it was in plain view and the deputy had probable cause to believe it was stolen even though he did not try to verify its stolen status by comparing its serial numbers with numbers of stolen property maintained by law enforcement. In an unpublished portion of this opinion we conclude defendant suffered no prejudice on account of any prosecutorial misconduct at trial. Accordingly, we shall affirm the judgment.

FACTS MATERIAL TO THE SECTION 1538.5 MOTION

The facts before the trial court material to defendant's section 1538.5 motion are as follows: ²

On October 14, 1986, Deputy Sheriff Gary Horat, a detective with the Sacramento County Sheriff's Department assigned to the burglary division, submitted an affidavit in support of issuance of a search warrant stating in material part as follows:

"On 10/6/86, I was contacted by Sacramento Police Burglary Detective G. Bierer, # 226. Bierer has prepared a report (SPD # 86-71502) involving the sale of six rings. Bierer further related that the owner of the Common To Key Coin Shop, Bob Shirley, had made two purchases of rings from three separate suspects, which he believed to be stolen. Shirley had obtained California drivers license from the suspects. One of the rings, a Masonic ring, was engraved with the name R.G. Kistler. This transaction occured [sic] on October 2, 1986.

"On 10/3/86, the suspects returned with additional property to sale [sic]. Shirley again saw the vehicle the suspects arrived in and this time obtained the license plate which was 059KUU and the plate was on a 1974 primer Chevrolet. The suspects had parked the vehicle directly in front of the business. Shirley described the suspects as male Mexican adults.

"Det. Bierer obtained the rings from Shirley and contacted the Sheriff's Department and located report # 86-85315, which listed Raymond George Kistler, who resides at 9145 Clendenon Dr., the victim of a residential burglary on 9/22/86 between the hours of 0620 and 1415.

"Det. Bierer then contacted the victim Kistler who confirmed that the rings belonged to him and were taken during the burglary of his residence and that an additional $20,000 to $30,000 worth of property was taken.

"Det. Bierer then contacted both myself and Det. Schmalz, # 31, in regards to the above information.

"Det. Schmalz, who works the Rancho Cordova area, obtained a copy of Raymond Kistler's burglary report.

"A copy of the Crime Scene Investigation report prepared by CSI Officer McGinness, # 75, and Ezell, # 566, indicated that a small piece of an electrical plug and a small piece of microwave and dial stolen from the victim were located near the victim's rear fence leading into the rear yard of 9300 Henley Way.

"Furthermore, the same CSI Investigators indicated that a burglary occurred at 9141 Clendenon Dr. on 9/4/86 to the victim John Skarda, SSD # 86-79638. This report also stated that boards had been removed from Skarda's rear fence, which also led to the rear yard of 9300 Henley Way.

"On 10/8/86, a fingerprint comparison was made by Technical Services Officer M. Kidwell, # 644. This comparison was positive to suspect Eddie Ray Rios when compared to latent prints found on the interior windowsill below the point of entry at the Skarda residence.

"Suspect Eddie Ray Rios indicates his address to be 9300 Henley Way.

"On 10/10/86, Det. Schmalz drove by suspect Rios's residence at 9300 Henley Way and observed the same 1974 primer gray Chevrolet bearing California license 059KUU, which was observed by the owner of the Common to Key Coin Shop."

On the same day, a magistrate issued a warrant authorizing a search of defendant's residence for various items of personal property not including a television set. The authorization in the warrant also said, "See attached copy of missing property report number 86-85315 involving victim Kistler." However, the Kistler missing property report was attached neither to the warrant nor to Deputy Horat's affidavit.

Later the same day, Deputy Horat served the warrant and searched the house at 9300 Henley Way. Home at the time was Donna Ayers who lived there with defendant.

In the course of the search, Deputy Horat noticed a television set in plain view on the kitchen counter. Deputy Horat had previously reviewed the theft report of the Kistler burglary and knew that an item of stolen property listed in the report was a small portable Liberty television set. The television on the kitchen counter matched precisely the description in the Kistler stolen property report.

Deputy Horat asked Donna Ayers who the television belonged to and she told him her "husband" had brought it into the residence about a month before. Believing the television had been stolen in the Kistler burglary, Horat seized it.

DISCUSSION

I

The seizure of the Liberty television set was lawful.

Defendant contends the television was not described in the search warrant and the prosecution failed to justify its seizure on the theory it was in plain view.

A. The television was not described in the warrant.

The People contend the television was described in the search warrant because it was identified in the Kistler missing property report that is referenced in the warrant. However, we have carefully reviewed the record and agree with defendant that the Kistler missing property report was attached neither to the affidavit nor to the warrant, doubtless because of inadvertence. The document the People claim is the Kistler missing property report is, in fact, the return to the search warrant ( § 1537) filed by Deputy Horat after the search of the Kistler residence and describing the property seized. Our conclusion is in accord with the assumptions upon which the parties proceeded in the trial court, where the People undertook to justify the seizure of the television on the ground it was in plain view and not described in the warrant.

B. Deputy Horat had probable cause to believe the television was stolen property so that its plain view seizure was lawful.

We must therefore determine whether Deputy Horat's seizure of the television was justified upon the theory that it was stolen property in plain view. We conclude the seizure was lawful.

Our task is to determine whether suppression of the television is required by exclusionary rules necessary to enforce the Fourth Amendment to the United States Constitution. (Cal. Const., art. I, § 28 It has long been settled that stolen property that is in the plain view of an officer who has the right to be in a position to have that view is subject to seizure under the Fourth Amendment. (Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069, People v. Williams (1988) 198 Cal.App.3d 873, 888, 243 Cal.Rptr. 914.) Here, there is no dispute that Deputy Horat had a right to be in defendant's residence and that the television was in plain view. The issue is whether the officer had sufficient knowledge that the television was stolen.

subd. (d); In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744; People v. Rogers (1986) 187 Cal.App.3d 1001, 1006, 232 Cal.Rptr. 294.)

In Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the Supreme Court concluded, under the Fourth Amendment, that if private property is to be seized without a warrant, "There must ... be a nexus--automatically provided in the case of fruits, instrumentalities or contraband--between the item to be seized and criminal behavior. Thus in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." (Id., 387 U.S. at p. 307, 87 S.Ct. at p. 1650, 18 L.Ed.2d at p. 792.)

The California Supreme Court has construed Warden 's "nexus" requirement as meaning that a police officer must be " ' "presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior [could] be inferred...." ' (People v. Superior Court (Meyers ) (1979) 25 Cal.3d 67, 73-74 [157 Cal.Rptr. 716, 598 P.2d 877], quoting People v. Hill (1974) 12 Cal.3d 731, 763 [117 Cal.Rptr. 393, 528 P.2d 1].) " (People v. Easley (1983) 34 Cal.3d 858, 872, 196 Cal.Rptr. 309, 671 P.2d 813.)

Last term, in Arizona v. Hicks (1987) 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, the high court discussed specifically the circumstances in which private property could be seized without a warrant on the ground the property was stolen and in plain view. The court held that, except in circumstances not present here (see id., 480 U.S. at p. 326-327, 107 S.Ct. at p. 1153-1154, 94 L.Ed.2d at p. 355), police officers lawfully inside a residence could not seize property in plain view, but not described in a...