People v. Superior Court (Moore)

• Decision Date: 24 April 1980
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, Andrew MOORE, Peter K. Gopal and Jim Catanich, Real Parties in Interest. Civ. 46821.
• Court: California Court of Appeals Court of Appeals

Page 906

163 Cal.Rptr. 906

104 Cal.App.3d 1001

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent Andrew MOORE, Peter K. Gopal and Jim Catanich, Real Parties in Interest.

Civ. 46821.

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

April 24, 1980.

Hearing Denied June 18, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Jamie Jacobs May, Deputy Attys. Gen., San Francisco, for petitioner.

Sheldon Portman, Public Defender, Frank D. Berry, Jr., Michael A. Kresser, Deputy Public Defenders, County of Santa Clara, San Jose, for real party in interest Catanich.

NEWSOM, Associate Justice.

Petitioner, the People, seeks a writ of mandate pursuant to Penal Code section 1538.5 to compel respondent court to reverse its order granting real parties' motion to suppress evidence.

The underlying cause is a criminal one, in which the real parties are accused of theft of trade secrets, possession of stolen property, conspiracy, offering bribes and solicitation.

The object of the alleged criminal activity was the theft of trade secrets belonging to Intel Corporation, and the affidavit on which the first of two challenged search warrants was issued, recited that real party Moore an Intel employee approached one Worth, a purchasing agent for National Semiconductor Corporation (NSC), and offered to sell him such secrets. Worth then informed NSC's president; the police were alerted, and it was arranged that Worth would meet with real parties Moore and Gopal to consummate the sale. Other meetings followed, at which Dunlap, an Intel employee who was present, learned the identity and location of "saleable" items at Gopal's business address and at his home.

On the basis of this information, a search warrant was issued authorizing seizure of a number of items, to wit:

"1. Magnetic data base tape containing Intel Mask data or facsimile for product No. 2147 4K static Ram.

2. Magnetic data base tape for product No. 2114 1K static Ram.

3. Magnetic data base tape for product No. 2716 16K EPROM.

4. Magnetic data base tape for product No. 8080A central processing unit.

5. Magnetic data base tape for product No. 2332 32K ROM.

6. Magnetic data base tape for product No. 8085 central processing unit.

7. Proprietary documents or facsimile detailing process flow for each and every one of the above products numbered 1 through 6 8. Run cards for each and every one of the above products numbered 1 through 6.

9. Transparent overlays for each and every one of the above products numbered 1 through 6.

10. Reticles consisting of glass plates for Masks for each and every one of the products numbered 1 through 6 above.

11. Composite or single layer Mylar plots for each and every one of the products numbered 1 through 6 above."

An elementary explanation of the manufacturing process of semiconductors was introduced at the suppression hearing, and may be summarized as follows.

The first step involved in the process is creating a "composite drawing," i. e., a handdrawn depiction of all layers of the product, resembling a schematic for a radio. This design is then "digitized": a computer traces every line along an X-Y cursor, and stores the information. This is called a data base tape.

Intel then sends the pattern generator tape to a mask vendor, who puts it into a machine which, by use of a camera develops a reticle. The reticle is 10 times larger than the actual chip size and contains the information for just one of the 6 to 10 layers which comprise a chip.

Next, the reticle is blown up 200 times the resulting enlarged reproduction being called a "blow back" or "overlay." Once the reticle is confirmed as containing the correct design, it is placed in a repeat camera which reduces the design to actual size and repeats it over and over again on a chrome piece or "mask" which then becomes the actual production tool.

In the affidavit on which the warrant was initially based, the affiant-police officer, averring that he could not identify the property due to its technical nature without expert assistance, requested and received authorization for such assistance although the warrant does not so recite. The assistance of experts, we note, is authorized under Penal Code section 1530.

During execution of the warrant, none of the officers present actually did any searching, since none of them knew what the items described in the warrant looked like. Rather, at the direction of the officer in charge, they stood and watched while the experts searched. The latter would inform the officers when they found an item they believed to be one described in the warrant, without, however, communicating the factual basis for such belief.

In addition to the items named in the warrant, Dunlap, who was among the searchers, discovered other items he believed to be stolen and was directed by the officers to put such items aside, so that a second affidavit might be drawn authorizing their seizure. This was done, later in the same day, and a second affidavit, incorporating the first, described the "new" items and recited that Dunlap had informed the affiant that he recognized such items as stolen property. The warrant was issued and executed, resulting in seizure of a number of additional items.

I Evidence Seized Under the First Warrant

The court suppressed evidence seized pursuant to the first warrant because the experts "aiding" the officers executing the warrant (Pen.Code, § 1530) failed to communicate to the latter the factual basis upon which their identification was made; or, in other words, they gave the police their conclusion, without imparting the rational process by which they arrived at it. This, the trial court, after careful consideration, found insufficient, consequently issuing its suppression order.

The decision preceded a very recent holding by our Supreme Court on the same subject. In People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 157 Cal.Rptr. 716, 598 P.2d 77; the court held police officers could legitimately seize items not enumerated in a search warrant, but identified by the burglary victim during the course of a police search. As the court said: ". . . 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 defendant." (Id., pp. 74-75, 157 Cal.Rptr., p. 721, 598 P.2d, p. 881.)

Here, as in Meyers, supra, it could be said that but for the presence and knowledge of the non-police personnel, the officers could not have known the property in question was stolen. Appellant argues, however, that while in Meyers, the "specific articulable facts" providing a reasonable basis for the inference of theft were spelled out, in the case at bar mere conclusions, unsupported by facts, were conveyed.

We are unable to perceive any meaningful distinction in the difference just recited. In People v. Superior Court (Meyers), supra, 25 Cal.3d 67, 157 Cal.Rptr. 716, 598 P.2d 77, the victim was, for example, able to "identify" a bottle of liquor found in defendant's room "because of the design on it." "Whether this bottle had a pink liquor seal or not, I don't know," she stated; and, again, "We do buy all our liquor in Nevada. This seal would probably prove it was purchased in Nevada." (Id., p. 75, fn. 6, 157 Cal.Rptr., p. 721, 598 P.2d, p. 881.) If anything, such testimony seems to provide a more conjectural and hence less reasonable basis for a belief in the stolen character of the goods than the conclusion of an expert witness such as Dunlap. And, as the People contend, "articulation" of the factual basis for the opinion Dunlap harbored would have been an empty gesture, since the police officers were incapable of exercising independent judgment in assessing the logical scientific connection between such facts and the conclusions to which they led.

We are of the opinion that the Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 requirement of articulation of a factual basis for an informer's conclusions in an affidavit for a search warrant is not equally applicable to identification of items such as those specified in the subject warrant, which are not susceptible of recognition by lay persons even when factually described by accompanying expert witnesses.

The rationale of the Aguilar requirement is to insure that the magistrate and not the police, makes the essential determination of probable cause, and makes it whenever possible on a factual rather than conclusionary basis. Here, the magistrate had already made a determination of probable cause, and the officers were not vested with any discretion as to which items could be seized, any more than were the experts: all were under a duty absent other legal justification to seize only those items described in the warrant. (Marron v. United States (1927) 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231; Burrows v. Superior Court (1974) 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 529 P.2d 590).

The problem, then, hinged on ascertainment of which items were those described in the warrant. Admittedly, when there is a method available for identification of the specific items sought, generic description and seizure are impermissible. (United States v. Klein (1st Cir. 1977) 565 F.2d 183, 188; cf. Model Code of Pre-Arraignment Procedure, § 22.5 (Proposed Official Draft 1975), suggesting generic seizure, impoundment and court supervised search.) But patently no such method was available here. The presence, and participation, of the officer in executing the warrant cannot sensibly be understood to require knowledge which a police officer could not reasonably be expected to possess. Consequently, we think there is no requirement that such experts, prior to stating their conclusions, engage in the...