{"id":6438,"date":"2012-02-26T08:09:04","date_gmt":"2011-12-20T10:50:39","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-20T10:50:39","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6438","title":{"rendered":"Cal: Indicia warrant was properly issued in murder case"},"content":{"rendered":"

Search warrant for evidence of ownership and control of the premises where a murder occurred was properly issued. Incriminating evidence was seen when it was executed. Also, exculpatory evidence omitted from the affidavit was not material. People v. Eubanks<\/a>, 53 Cal. 4th 110, 134 Cal. Rptr. 3d 795 (2011):<\/p>\n

Here, in light of the information available to the affiant sheriff\u2019s detective at the time he sought the first warrant, he could not have realistically described the personal property sought to establish dominion and control with any more particularity. (See, e.g., U.S. v. Spilotro<\/a> (9th Cir. 1986) 800 F.2d 959, 964; U.S. v. Cardwell<\/a> (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple murders recently had occurred inside the house, but they had little information as to how they were carried out or why. While it appeared that defendant had committed the crimes, her responsibility had to be ascertained with more certainty, and any others who had access to the property or dominion and control of it needed to be considered or eliminated as suspects.<\/p>\n

In People v. Nicolaus<\/a> (1991) 54 Cal.3d 551 (Nicolaus), police obtained a search warrant to search the defendant\u2019s apartment for \u201cletters, papers and bills tending to show who occupied the apartment\u201d (id. at p. 575), after they learned defendant\u2019s address from a dying woman who said defendant had shot her. During the search of the apartment, an officer opened a folder on the defendant\u2019s desk and found documents in the defendant\u2019s handwriting that described his plans to harm the victim and revealed his motives and state of mind before the murder. In finding the search into the folder for indicia of occupancy constitutional, we rejected defendant\u2019s contention that the search authorized by the above quoted phrase was not \u201csufficiently particularized.\u201d (Ibid.) We additionally noted that, \u201c[i]n any event, the officers acted entirely properly in seeking independent evidence to establish defendant\u2019s occupancy of the apartment, and defendant\u2019s control over any evidence seized therefrom, for presentation in court.\u201d (Ibid.) <\/p>\n

. . .<\/p>\n

4. Seizure of Dominion and Control Evidence.<\/p>\n

Defendant next faults the investigating officers for reading and seizing the letters lying about her bed. She claims those letters were not relevant to dominion and control, that they were \u201cmerely [her] personal writings,\u201d and the officers had \u201cno authorization to seize them under the guise of \u2018dominion and control.\u2019\u201d However, as officers searching defendant\u2019s residence for items tending to show dominion and control were entitled to search through trash cans and to look at any paper items inside the home, they were also entitled to seize defendant\u2019s letters, though not listed in the warrant, because they were in plain view and their incriminating character was immediately apparent. (Horton v. California<\/a> (1990) 496 U.S. 128, 136-137; Kraft<\/a>, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d at p. 575.) Defendant\u2019s reliance on Arizona v. Hicks (1987) 480 U.S. 321, is misplaced. In that case, investigating officers engaged in conduct unrelated to the objectives of the authorized intrusion to search for a shooter and for weapons when they moved stereo equipment and obtained its serial numbers. (Id. at pp. 324-326.) Here, by contrast, the officers were engaged in an authorized search when they came upon the immediately apparent incriminating letters.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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