Description/Execution
Category > Description/Execution
The warrant authorizing a search of the house did not permit the search of a separate residence behind the house that may have accessed the computer network from the front house wirelessly.Police identified an IP address for an Internet account sharing child pornography online. Comcast identified the subscriber as J. Reynolds at 309 South 23rd street. Police obtained a search warrant for the residence, garages and outbuildings. While conducting the search, police noticed defendant (Nguyen) living in a separate residence behind the house. They searched his residence and found a laptop with child pornography. However, police lacked probable cause to search defendant’s residence because they had no basis to believe the suspect network was accessed from defendant’s residence. The warrant did not expressly authorize the search, and the police lacked good faith reliance on the warrant.id: 25268
The search of the car parked near the residence listed in the warrant exceeded the scope of the warrant.The search of a vehicle parked on Strawberry Street from which a gun was recovered exceeded the scope of a warrant directing the search of the residence at 101 Strawberry Street and “vehicles on said property.” The vehicle’s proximity near the place designated in the warrant did not justify a search of the vehicle.id: 24513
Search warrant's deficient description of items to be seized was not cured by the affidavit where there was no evidence the affidavit was attached to the warrant when executed.Defendant was being investigated for practicing law without a license. The Magistrate issued a search warrant based on the affidavit of an investigator, but because of concerns regarding the attorney/client privilege, the search was conducted by a special master. The warrant authorizing the search of general ledgers and journals was constitutionally deficient in its description of the items to be seized and was overbroad. Respondent argued the affidavit resolved any ambiguities. However, the record did not indicate that the affidavit was attached to the warrant. The search was justified under the good-faith exception to the exclusionary rule where it could not be said that a reasonably well trained officer would have recognized that the description of property on the face of the warrant was so general in nature that he/she could only speculate whether an item was among those to be seized.id: 11088
Materials seized from an attorney's office must remain sealed until the hearing to determine whether the materials are privileged or violate the privacy rights of others.The procedure to be followed for search of an attorney's offices (where the attorney is not the target of a criminal investigation) is set forth in Penal Code section 1524, subdivision (c). At the time the attorney requests non-disclosure of a seized item, the special master must advise the attorney and the party serving the warrant of the date, time, and place of the required hearing. Moreover, until a hearing is held to determine whether the sealed documents contain privileged materials or infringe upon the privacy rights of non-targeted third parties, the documents must remain sealed.id: 11086
Forced entry following five-second period of inactivity after officer stated search warrant was unreasonable.Officers dressed in street clothes, went to defendant's house after midnight to serve a warrant. Defendant's inaction during the five-second interval after one officer said search warrant did not constitute an implied refusal of entry, permitting a forcible entry.id: 11085
Clothing removed during a shower was not covered by a warrant authorizing a search of the premises.Defendant's pants and shirt removed while he took a shower in a closed, private bathroom, remained an extension of his person, rather than becoming part of the premises, and were not covered by a warrant authorizing search of the premises.id: 11084
Warrant seeking to search all of defendant’s electronic devices for any material relating to child pornography did not violate the particularity requirement of the Fourth Amendment or ECPA.Defendant argued the search warrant was defective due to its broad requests for content relating to child pornography on his electronic devices. However, the description of the information sought was sufficiently particular for Fourth Amendment purposes as it was limited to material depicting child pornography. The court rejected a similar challenge under the Electronic Communications Privacy Act (ECPA).id: 26404
The cell phone was properly seized, and text messages read, even though the phone was not among the items listed in the search warrant. Defendant argued the seizure of his cell phone was unauthorized because the search warrant did not specifically include cell phones in its list of property to be seized. However, the warrant allowed the seizure as the smartphone was the likely container of many items listed in the warrant. Moreover, the police were not required to get a second warrant to read defendant’s text messages.id: 22749
Officers executing an arrest warrant or conducting a probation or parole search need not have probable cause to believe the suspect was present. An officer executing an arrest warrant or conducing a parole or probation search may enter a dwelling if he or she has only a “reasonable belief,” falling short of probable cause, to believe the suspect lives there and is present.id: 22358
Where officers from one police department were legitimately searching for evidence of burglaries, the search by another police department accompanying them hoping to find evidence of a homicide in plain view was not an improper pretext search.Defendant argued that even if the search warrant obtained by the Los Altos police was valid, the initial search was unlawful because Los Altos police delegated execution of the warrant to members of the Palo Alto police who used the warrant as a pretext to enter the apartment to search for evidence relating to the homicides. However, officers of both police departments entered the residence lawfully to execute the warrant. While the warrant authorized a search for items relating to the burglaries, there was nothing improper in allowing Palo Alto police to accompany the other officers looking for evidence of the homicides that might have been in plain view.id: 21163
Interpreting the arrest warrant affidavit in a common sense manner, there was probable cause to believe defendant violated some provision of section 290.Defendant argued his arrest was illegal because the affidavit submitted in support of the arrest warrant described the wrong subdivision of Penal Code section 290 – the sex offender registration statute. However, there is some crossover within the subdivisions of section 290 and it is not clear that the affidavit described the wrong subdivision. In any event, interpreting the affidavit in a common sense manner, there was probable cause to believe defendant violated some provision of section 290. id: 20374
The seizure of defendant’s computer which was not listed on the warrant was proper to establish dominion and control.Defendant argued that the computer, closed in the car parked outside of his house, and not specifically mentioned in the search warrant, could not be seized under the general dominion and control clause. However, the warrant authorized the seizure of “computer disks” which are materials stored by the computer. Moreover, the officers were entitled to secure items, including the computer to clearly establish dominion and control, This was so, even though the computer contained a wide range of information not related to dominion and control.id: 20293
Police were not required to abandon a search for marijuana authorized by a warrant where defendant possessed a certificate which allowed him to possess marijuana for medical purposes.Law enforcement officers are not required to abandon a search for marijuana authorized by a search warrant when a resident of the premises to be searched produces documents that suggest he has a physician's permission to possess the marijuana pursuant to the Compassionate Use Act of 1996. That defendant had a certificate which allowed him to legally possess marijuana for medical purposes was an affirmative defense defendant could assert at trial.id: 16734
The trial court did not err in admitting into evidence AOL instant messages seized from defendant's home computer where police knew the defendant and minor were communicating by computer.Defendant was charged with sodomy of a minor and oral copulation of a minor after meeting a 15 year-old in an Internet chat room. He argued the trial court erred by refusing to suppress evidence of the America Online instant messages seized from his home computer. The search warrant seeking such evidence was not overly broad. The AOL instant messages fell into the category of correspondence relating to the exploitation of children. Defendant also argued there was no information in the search warrant affidavit to support the conclusion that he possessed such evidence. However, home computers are common and the officers knew the defendant and the minor were communicating by computer. There was a fair probability that evidence of a crime would be found on defendant's computer.id: 17003
Police did not exceed the scope of the warrant by confiscating an open laptop computer as "dominion and control" evidence.Defendant was convicted of receiving stolen property. She argued the police exceeded the scope of the search warrant when
they confiscated an open laptop computer under a warrant clause authoring seizure of "any items tending to show dominion and control" of the premises searched. However, a laptop computer
could logically serve as a container for information tending to show occupancy and control of the residence.id: 18983
Supreme Court says warrant's failure to describe items to be seized is not cured by application that is not incorporated into warrant.An application for a search warrant described the items to be seized, but the warrant itself did not identify the items that the officers were authorized to seize. The warrant did not incorporate the affidavit by reference, and the executing offices did not leave a copy of the application when they conducted the search. The Supreme Court held that "the warrant was plainly invalid," and that the application's particular description of the things to be seized could not save the warrant because it was not incorporated into the warrant by reference or attached to the warrant. The Court rejected the argument that the search pursuant to the warrant was nevertheless reasonable because the magistrate issued the warrant on probable cause and the search did not exceed the scope of probable cause.id: 20162
Supreme Court says brief detention of couple surprised in bed in search under warrant was reasonable. Police officers identified four suspects in an investigation, all of whom were African-Americans and one of whom had registered a firearm. The officers obtained a warrant to search a house where they believed the suspects lived. The affidavit in support of the warrant stated that the officers had verified that the suspects lived in the house through driver's license records, mailing address lists, an outstanding warrant, and an Internet telephone directory. In fact, the suspects had sold the house to a Caucasian man and moved out three months earlier. When the officers executed the warrant, they found the owner and his girlfriend in bed naked. The couple was briefly held at gunpoint before the officers allowed them to obtain clothes. After about five minutes, the officers realized their mistake, apologized, and left. The couple brought a civil rights lawsuit alleging that the officers unreasonably detained them. The Ninth Circuit held that the search and detention were unlawful but the Supreme Court summarily reversed. The Court held that the officers had acted reasonably in detaining the house's occupants during the execution of a valid warrant for the brief time necessary to determine that no immediate threat was present.id: 20193
The police did not exceed the scope of the warrant which permitted a search of the vehicle for certain items, by transporting the car to a crime lab for a search of trace or biological evidence.Police investigating a missing person obtained a warrant to search defendant's car seeking specific items belonging to the missing person. The police actions in searching the car and then transporting it to a crime lab to search for trace evidence
relating to those items did not exceed the scope of the search. The warrant's failure to specify that police were to search for trace evidence did not render the search invalid. Neither did the seizure of the vehicle violate the Fourth Amendment because it could not have been properly searched without being seized. Likewise, the 12 day delay in searching the car did not violate the Fourth Amendment. Finally, since probable cause existed to search the vehicle, the search was justified under the automobile exception to the warrant requirement.id: 19632
Search of defendant's duffel bag was reasonable during the execution of a search warrant at defendant's mother's home.Defendant argued the police improperly searched her duffel bag while executing a search of her mother's home. However, the search was reasonable as the bag was not labeled and the police were not required to believe her statement of ownership. Moreover, defendant stayed at her mother's house regularly and was more than a casual visitor. Finally, the officers could also search the bag for weapons to protect their safety.id: 19256
Penal Code section 1535 does not require that a search warrant be displayed or that the defendant be provided a copy.Defendant argued the court erred at the suppression motion by denying him the opportunity to present evidence on the issue of the officer's failure to display the search warrant or provide him a copy of it. However, because the officers were not required to display the warrant or provide defendant a copy of it, the court was correct in denying the suppression motion without permitting defendant to offer evidence on the issue. id: 16970
Search was proper where there was a nexus between the items discovered and criminal activity, though not necessarily the criminal activity mentioned in the search warrant.he search warrant authorized the search of defendant's residence for evidence of racketeering activities and authorized the seizure of various documents. The search produced documents as well as drugs and firearms. The trial court erred by suppressing the seized items on the ground there was no nexus between them and the items mentioned in the search warrant. However, such a nexus is not required. Instead, the required nexus is that between the item discovered and a criminal activity, though not necessarily the criminal activity denominated in the warrant. The record did not suggest the officers searched areas unlikely to contain documents, or randomly seized items. Moreover, the items were properly seized under the plain view doctrine. Because the warrant authorized a search for documents, the officers searched the home, car and motorhome, and in doing so, looked in drawers, closets, shelves, and containers.id: 16721
Description of house in search warrant was adequate despite inaccuracies where officer executing the warrant had personal knowledge of the house to be searched.A police officer had probable cause to search a house after an informant pointed it out to him. He obtained a warrant to search the house, preparing and signing the supporting affidavit himself, and he personally executed the warrant on the house the informant had shown him. However, the warrant misdescribed the house in three areas: the street number was wrong, it was incorrectly listed as having two stories rather than one, and the wrong city was listed (Santa Fe Springs rather than Whittier). However, the warrant satisfied the requirements of particular and accurate description of the house to be searched. This is so because the officer who executed the warrant had personal knowledge of the house to be searched (since it had been pointed out to him), notwithstanding the inaccuracies in the warrant's description.id: 14920
A reasonable but mistaken belief that the subject of a felony arrest warrant was inside the motel room justified the entry.The officers had reasonable cause to believe the subject of the felony arrest warrant was inside the motel room at the time of their entry. The motel manager telephoned the police and stated she thought she had just observed him enter the room (after being shown a photograph by the police a few days earlier). When the officers approached the room someone closed the curtains and said It's the fucking pigs. When a nervous and uncooperative man opened the door, the officers observed a loaded handgun within his reach. Moreover, exigent circumstances also justified the officers' entry based on the presence of the gun and the officers' reasonable belief that the subject of their felony arrest warrant was secreted inside.id: 11083
Search warrant for defendant's apartment permitted a search of his mailbox.Defendant argued the search warrant permitted only the search of his apartment, the garage, his person, and his pickup truck. He acknowledged it specified a search for cancelled mail, but argued it failed to particularly describe the mailbox itself as a location to be searched. However, the warrant impliedly authorized search of the areas appurtenant to the premises and the mailbox was sufficiently identifiable as the one corresponding to defendant's apartment. Moreover, the warrant need not expressly contain the term appurtenances. Finally, the fact that the mailbox is an authorized federal depository does not mean that it may be searched only pursuant to a federal warrant.id: 11087
The barn located almost one-half mile from the house was particularly described where the search warrant authorized the search of outbuildings.Officers received a warrant to search a residence after being informed of a drug sale. The warrant authorized the search of the premises including all rooms, outbuildings and storage areas. 4,000 marijuana plants were found in a barn one-quarter to one-half mile away from the mobile home. In seeking the warrant the officer should have indicated the residence was a 40 acre parcel and that the outbuilding was one-quarter to one half-mile from the house. However, the failure to do so did not violate the particularity clause of the Fourth Amendment. Moreover, although the antecedent cocaine sale at the mobile home did not take place near the barn, there was a sufficient nexus thereto to authorize its search.id: 11089
Under section 1534 a search warrant must be executed within 10-days beginning on the day after the issuance.On July 15, 1992, the magistrate issued a search warrant. The warrant was executed on July 25, 1992. Penal Code section 1534 requires that a search warrant be executed within 10 days after the date of issuance. The trial court erred when it computed the 10-day period by including the day the warrant was issued. The 10-day period in which a search warrant must be executed under section 1534 is to be computed by excluding the day on which the search warrant is issued and by including the day on which the search warrant is executed.id: 11090
Warrant authorized the search of a safe located outside the residence where it specified the residence and the premises therein.The search warrant authorized a search of defendant's residence, and the premises therein for firearms. The residence was on a 10 acre ranch in a rural area. Officers searched a large safe near the back porch about two feet from the house. Defendant argued the warrant did not authorize searching anything outside the outer walls of the house. However, the search was proper since the warrant referred to the residence, and premises.id: 11091
Warrant authorized the search of the purse of a person who was more than a mere visitor.If the circumstances apparent to the executing officer suggest a relationship between the person present and the premises named in the warrant sufficient to connect the individual to the illegal activities giving rise to the warrant, the person is not a mere visitor and search of that person's property on the premises is permitted. Search of the woman's purse in the instant case was proper where, among other things, she was the daughter of the woman who owned the house, she had grown up in the house and had a key, and where she slept there the night before the search.id: 11092
Omission in the search warrant affidavit of the link between defendant's activities and the described premises did not render reliance on the subsequent warrant unreasonable.While the search warrant affidavit provided a detailed description of the residence to be searched and gave a detailed description of defendant's rent skimming activities it did not provide facts linking defendant to the described premises. The affidavit was complete in all other respects. Given the nature of the mission the affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The officers therefore reasonably relied on the subsequent warrant.id: 10875
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850