People v. Superior Court

• Decision Date: 23 May 2007
• Docket Number: No. H029987.,H029987.
• Citation: 151 Cal.App.4th 85,59 Cal.Rptr.3d 633
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Maurice Xavier Nasmeh, Real Party in Interest.

59 Cal.Rptr.3d 633

151 Cal.App.4th 85

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent;

Maurice Xavier Nasmeh, Real Party in Interest.

No. H029987.

Court of Appeal, Sixth District.

May 23, 2007.

Bill Lockyer and Edmund G. Brown, Jr. Attorneys General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Amy Haddix and John H. Deist, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Daniel Jensen, Law Office of Daniel Jensen, Santa Clara, J. Courtney Shevelson, Law Office of J. Courtney Shevelson, for Real Party in Interest.

DUFFY, J.

Real party in interest Maurice Xavier Nasmeh has been charged with the murder of Jeanine Harms (Pen.Code, § 187)¹ and awaits trial. The superior court granted a pretrial motion by Nasmeh to suppress evidence (§ 1538.5), ruling that the search and seizure of Nasmeh's car exceeded the scope of a warrant and that there was no other ground to permit the introduction of the evidence. The People petitioned for a writ of mandate in this court asking us to order the superior court to vacate its order granting the motion to suppress and enter a new order denying the motion.

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 28-29, 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 Persianstyle 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 friend 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.

Examination of Harms's car produced Nasmeh's fingerprint. Police officers interviewed Nasmeh on July 31, 2001. He admitted going to Harms's house with her. He reported following her in his Jeep Cherokee sport-utility vehicle and parking in front of her house. He said they arrived between 10:30 and 11:00 p.m. After talking for a while, they went to a corner market to purchase beer and returned to the house. They continued to talk for about an hour; when Harms said she was sleepy and fell asleep on the couch. She had told him he could stay until he was sober enough to drive. He said he stayed for another hour, and then left without any acknowledgment from the sleeping Harms. Nasmeh said he used the bathroom while he was there, but he denied engaging in any sexual interaction with Harms. He did not recall anything unusual about Harms's couch, such as missing cushions, and he believed there was a rug in front of the couch but he could not describe it. Nasmeh also reported that as he was driving away, he saw a man get out of a car parked on the street several driveways behind him and walk in his direction, which he thought was strange for that hour of the night.

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." (Bold face font 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.²

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.³ At a hearing on the motion, Wahl testified that after looking in the Jeep for the items listed in the search warrant, he sealed the vehicle and had it transported to the crime laboratory to search for trace or biological evidence related to those items. Based on his training and experience, Wahl suspected that trace evidence from Harms's body or the missing items might be found in Nasmeh's vehicle, which was big enough to transport her body, the couch cushions and pillows, couch cover, and rug. Wahl believed that the search warrant authorized him to search the vehicle for trace evidence and that under the law he could seize the vehicle and move it to another location to facilitate the search.

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 warranty

"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' (Maryland v. Garrison (1987) 480 U.S. 79, 84[, 107 S.Ct. 1013, 94 L.Ed.2d 72]). In this case, the warrant contained a particularized statement of the object of the search of the Jeep Cherokee: a purse and contents, rug, sofa cushions, pillows, boots, khaki shorts, a polo shirt, car wash receipts, credit cards, checks and indicia of occupancy or ownership. Any and all of these items are of a size and type that they would have been found, if they were in fact in the vehicle, by officers conducting a typical search at the scene.

"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...