People v. Rogers

• Court: California Court of Appeals
• Citation: 232 Cal.Rptr. 294,187 Cal.App.3d 1001
• Decision Date: 09 December 1986
• Parties: The PEOPLE, Plaintiff and Respondent, v. Scott Truitt ROGERS, Defendant and Appellant. Crim. 14840.

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232 Cal.Rptr. 294 187 Cal.App.3d 1001 The PEOPLE, Plaintiff and Respondent,
v.
Scott Truitt ROGERS, Defendant and Appellant. Crim. 14840. Court of Appeal, Third District, California. Dec. 9, 1986.
Certified for Partial Publication ^*
As Modified Dec. 30, 1986.

[187 Cal.App.3d 1003] Kanter, Williams, Merin & Dickstein and Mark E. Merin, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey and Edgar A. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant pled no contest to one count of possession of marijuana for sale (Health & Saf. Code, § 11359) after his motion to suppress (Pen.Code, § 1538.5) was denied.

On August 27, 1984, while conducting random aerial overflights, a Nevada County Sheriff's Deputy observed marijuana

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growing on certain property. He executed an affidavit in support of a search warrant in order to search the area he had observed. The affidavit disclosed that the marijuana was located approximately 500 feet west of a residence in a rural area. A second patch was observed approximately 250 feet away from the residence. Paths connected the two marijuana gardens to the residence.

A search warrant was issued that authorized a search of the residence and vehicles under the control of persons in control of the marijuana. The warrant also included, in one provision, authority to search for "articles of [187 Cal.App.3d 1004] personal property tending to establish the identity of the person or persons in control of the premises, vehicles, storage areas, or containers where controlled substances may be found, consisting of and including, but not limited to, utility company receipts, rent receipts, cancelled mail, envelopes and keys." The search conducted pursuant to the warrant produced 27 marijuana plants weighing approximately 120 pounds, 17 pounds of "sample" marijuana, containers of marijuana seeds and buds and some miscellaneous papers, including letters and checks.

Defendant contends his motion to suppress was improperly denied because (1) the search warrant used to obtain certain evidence was predicated upon facts obtained by an illegal aerial overflight and (2) the search warrant itself was overbroad. In an unpublished portion of this opinion, we conclude the aerial overflight lawfully established probable cause under California v. Ciraolo (1986) 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210. In this published portion, we conclude the warrant was not overbroad. We therefore affirm the judgment.

DISCUSSION ^**

I II

Defendant contends the search warrant was overbroad by authorizing a search for items tending to indicate the identity of persons in control of premises, vehicles, storage areas or containers where controlled substances were found. ¹ He cites People v. Frank (1985) 38 Cal.3d 711, 214 Cal.Rptr. 801, 700 P.2d 415, in support of his position.

Frank held that notebooks containing the personal thoughts of the defendant were unlawfully seized pursuant to three clauses of a search warrant, [187 Cal.App.3d 1005] set forth in the margin. ² (Id., 38 Cal.3d at p. 722, 214 Cal.Rptr. 801, 700 P.2d 415.) The court ³

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concluded that clauses two and eight of the warrant were overbroad and failed to satisfy the requirement of article I, section 13 of the California Constitution that a search warrant " 'particularly describ [e] the place to be searched and the persons and things to be seized.' " (People v. Frank, supra, 38 Cal.3d at pp. 724, 726, 214 Cal.Rptr. 801, 700 P.2d 415, emphasis original.) The warrant thus placed no "meaningful restriction upon the objects to be seized, ..." (Id., at p. 726, 214 Cal.Rptr. 801, 700 P.2d 415.) The court also held that all three clauses were unsupported by probable cause; nothing in the affidavit gave the magistrate any factual basis to conclude the defendant's residence contained documentary evidence of his whereabouts at the time of the crime or of any interest he may have had in the crime, or that he had any traffic tickets. (Id., at p. 728, 214 Cal.Rptr. 801, 700 P.2d 415.)

Here, defendant does not assert a lack of probable cause supporting the warrant, only that it was insufficiently specific. However, the Frank court did not single out as insufficiently particular the clause authorizing the officers to search for and seize indicia of ownership or occupancy (see id., at p. 726, 214 Cal.Rptr. 801, 700 P.2d 415) but held only that there was no probable cause to believe any traffic tickets would be found. (Id., at p. 728, fn. 2, 214 Cal.Rptr. 801, 700 P.2d 415.) We thus do not read Frank as defendant urges us to; the court never held overbroad (as insufficiently particular) the portion of the warrant allowing the search for evidence indicating the identity of the residents of the home. Indeed, one case, People v. Holmsen (1985) 173 Cal.App.3d 1045, 219 Cal.Rptr. 598, has read Frank as not invalidating such dominion and control clauses. (Id., at p. 1048, 219 Cal.Rptr. 598.) ⁴

[187 Cal.App.3d 1006] We recognize Frank uses some rather broad language in its discussion of overbreadth. For example, the court held clause two failed to satisfy the constitutional requirement of particularity because the search for documentary evidence of the defendant's whereabouts at the time of the crime encompassed items described only "by impermissibly general categories such as 'credit card receipts,' 'records of telephone toll calls,' 'cancelled checks,' and 'personal diary notations.' In order to know whether defendant's apartment contained any documents in any of these categories," continued the court, "it would inevitably be necessary for the police to rummage through all defendant's personal papers and read enough of each to learn its contents...." (Frank, supra, 38 Cal.3d at p. 726, 214 Cal.Rptr. 801, 700 P.2d 415, emphasis original.) The court reached the same conclusion with respect to clause eight of the warrant, which authorized the search for " 'scrapbooks,' 'photographs,' 'tape recordings,' and 'writings'--and purported to limit them to items that 'could relate' to the victim's death and 'would indicate' either 'participation' or 'an interest' in that death by defendant.... [T]o execute this clause it would be necessary for the police both to rummage through all defendant's 'writings' and to read enough of each to learn its contents." (Ibid.)

It is difficult to discern from Frank a principled basis to distinguish between the generic categories found insufficiently particular and those not declared so. Thus, "credit card receipts," "records of telephone toll calls" and "cancelled checks"

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were all declared overbroad (Frank, supra, 38 Cal.3d at p. 726, 214 Cal.Rptr. 801, 700 P.2d 415) while "utility company receipts" and "insurance papers" were not expressly condemned, even though a search for each category would entail an intrusion into defendant's papers for purposes of examination and possible seizure. In any event, we do not read Frank as invalidating the warrant clause at issue here on overbredth grounds.

However, even if our reading of Frank is wrong, the decision in that case was based exclusively on article I, section 13 of the California Constitution. (People v. Frank, supra, 38 Cal.3d at p. 724, 214 Cal.Rptr. 801, 700 P.2d 415.) That crime took place in 1978, before the voters amended the California Constitution by enacting Proposition 8 in 1982. (See Cal.Const., art. I, § 28.) ⁵ Since that...