Cal.2d: SW for records and computers in 23 year old cold case was not stale, and GFE applied

This is a 1986 cold murder case solved in 2009 by DNA involving the killing by an LAPD officer of the wife of her lover at the time. All the forensics were retested with current DNA techniques and sent to CODIS. Defendant was identified as a match to some of it, and police also had a motive to kill. A search warrant was issued for diaries and other records from 1986, 23 years earlier, and that begged a staleness challenge. It was rejected because the items sought, journals, diaries, and photographs, are things likely to be kept. Even the search warrant for defendant’s computers was not stale. Although it was almost a certainty these computers did not exist back in 1986, that did not preclude the transfer of personal records or photographs from one computer to another to another over the years. Considering the deference required to give search warrants, and the findings of issuing magistrates, the court concludes it was not stale. Finally, the good faith exception applied. People v. Lazarus, 2015 Cal. App. LEXIS 610 (2d Dist. July 13, 2015):

The magistrate issuing the warrant “is entitled to rely upon the conclusions of experienced law enforcement officers in weighing the evidence supporting a request for a search warrant as to where evidence of crime is likely to be found. [Citation.] It is not essential that there be direct evidence that such evidence will be at a particular location. Rather, the magistrate ‘”is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.”‘ [Citation.]” (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315, quoting United States v. Fannin (9th Cir. 1987) 817 F.2d 1379, 1381-1382.)

“In reviewing a trial court’s denial of a motion to suppress evidence obtained pursuant to a warrant, ‘[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment [citations],'” giving “great deference to the magistrate’s determination of probable cause.” (People v. HuIland (2003) 110 Cal.App.4th 1646, 1651, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) “In cases where the facts are essentially undisputed, we independently determine the constitutionality of the challenged search or seizure.” (People v. Rangel (2012) 206 Cal.App.4th 1310, 1315.) “[B]ecause ‘[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,”‘ … ‘”doubtful or marginal”‘ cases are to be resolved with a preference for upholding a search under a warrant.” (People v. French (2011) 201 Cal.App.4th 1307, 1315, quoting Leon, supra, 468 U.S. at p. 914.)

Appellant contends that because the crime occurred more than 20 years before the issuance of the warrants, the information used to support them was necessarily stale. Appellant further contends the fact that she moved residences during those years precluded a finding of any nexus between items related to the crime and her current home. Finally, she contends the search of her computers was improper because the affidavit provided no substantial evidence to support that they existed at the time of the crime or that appellant kept evidence of the crime on them. In the exercise of our independent judgment, we conclude that the information in the affidavit provided probable cause to search appellant’s current home and computers despite the passage of years.

There is no “bright-line rule defin[ing] the point at which information is considered stale.” (People v. Carrington, supra, 47 Cal.4th at p. 163.) “Rather, ‘the question of staleness depends on the facts of each case.’ [Citation.]” (Id. at p. 163.) The question turns on whether “facts supporting the warrant application establish it is substantially probable the evidence sought will still be at the location at the time of the search.” (People v. Bryant, supra, 60 Cal.4th at p. 370, italics deleted.) “Substantial delays do not render warrants stale where the defendant is not likely to dispose of the items police seek to seize.” (People v. Stipo (2011) 195 Cal.App.4th 664, 672; see U.S. v. McCall (4th Cir. 1984) 740 F.2d 1331, 1336 [“‘The vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.'”].) Courts have recognized that firearms are likely to be retained by a suspect long after the crime is committed. (See, e.g., People v. Bryant, supra, at p. 369; U.S. v. Singer (7th Cir. 1991) 943 F.2d 758, 763; United States v. Maxim (8th Cir. 1995) 55 F.3d 394, 397 [recognizing that firearms enthusiasts could be expected to hold onto weapons for 10 or 20 years].) “[F]irearms, unlike drugs, are durable goods useful to their owners for long periods of time.” (U.S. v. Singer, supra, at p. 763.) Courts also recognize the longevity of information stored on computers. (See, e.g., U.S. v. Lemon (8th Cir. 2010) 590 F.3d 612, 615-616; U.S. v. Newsom (7th Cir. 2005) 402 F.3d 780, 783; see U.S. v. Johnson (D. Md. 2012) 865 F.Supp.2d 702, 707 [because evidence on a computer is recoverable months or years after it has been downloaded, deleted, or viewed “the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer”].)

Here, the affidavit presented strong evidence of appellant’s guilt and she does not argue otherwise. The affidavit also presented evidence of appellant’s apparent motive: her romantic obsession with the victim’s husband. Given the evidence that her obsession was powerful enough to lead her to commit murder, it was probable that she would have continued to retain items evidencing her relationship with Ruetten and her feelings toward Ruetten and Rasmussen, even after all the years that had passed. Moreover, although she claimed her Smith & Wesson Model 49 revolver, the probable murder weapon, had been stolen, the magistrate could reasonably conclude that she had instead hidden it and kept it near her. (See People v. Carrington, supra, 47 Cal.4th at p. 163 [magistrate could reasonably conclude that suspect’s residence was logical place to look for specific incriminating items]; U.S. v. Steeves (8th Cir. 1975) 525 F.2d 33, 38 [people who own guns generally keep them at home or on their persons].) With respect to her contention that her move from one residence to another precluded a finding of a nexus between her current home and the evidence sought, the warrants specifically sought photographs, journals and diaries. A person does not normally discard such items, even after several moves. (See U.S. v. Freeman (5th Cir. 1982) 685 F.2d 942, 949 [nexus between house to be searched and evidence sought may be established either through direct observation or through normal inferences as to where articles sought would be located]; U.S. v. Domingo (M.D. Fla. 2010) 2010 U.S. Dist. LEXIS 124145, at *19-22 [reasonable to infer that defendant would move valued materials to his new residence].)

Appellant claims that the warrant was overbroad in granting permission to search her computers, as there was no evidence she owned any of them at the time of the homicide. The fact that she may not have owned those computers at the time of the crime did not preclude the possibility that she had transferred information or records — particularly photographs — to computers owned at the time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 F.Supp.2d 776, 795 [recognizing that photographs [*58] and video preserved in computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, files, and correspondence”].) Moreover, had she made new journal entries about Ruetten or Rasmussen years after the homicide, that would have been highly pertinent to motive. Finally, any evidence that in the ensuing years she had conducted computer searches for information about Ruetten or the homicide would have further evidenced her strong feelings for him during the relevant period. (See People v. Varghese, supra, 162 Cal.App.4th at p. 1106 [fact that defendant researched romantic rival on his computer was evidence of jealousy and supported that rival’s murder was “crime of passion”].) In short, probable cause supported the issuance of the warrants despite the time that had passed since the crime. Moreover, as discussed below, even were we to find otherwise, the good faith exception would have precluded application of the exclusionary rule.

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