We conclude that a trial court has the authority to hold an in camera hearing to determine the validity of the assertion of the attorney-client privilege by an attorney suspected of criminal activity, notwithstanding section 1524. Although not a case involving assertion of the attorney-client privilege, our decision in People v. Hepner (1994) 21 Cal.App.4th 761 [ 26 Cal.Rptr.2d 417], supports our conclusion here. In Hepner, a search was conducted of a pyschiatrist's office pursuant to a search warrant based on information that the doctor was participating in insurance fraud.
The vice of a general warrant is that it permits "`a general, exploratory rummaging in a person's belongings. . . . [Citation.]'" ( Andresen v. Maryland (1976) 427 U.S. 463, 480 [ 49 L.Ed.2d 627, 96 S.Ct. 2737].)' ( People v. Hepner (1994) 21 Cal.App.4th 761, 773-774 [ 26 Cal.Rptr.2d 417].) "This warrant does not authorize the police to seize the vehicle for an unspecified and lengthy period of time, and to conduct an unlimited search for fiber or other microscopic evidence.
( Ibid.) Bauman Rose then found support for this determination in People v. Hepner (1994) 21 Cal.App.4th 761 [ 26 Cal.Rptr.2d 417] and McKirdy v. Superior Court (1982) 138 Cal.App.3d 12 [ 188 Cal.Rptr. 143], neither of which involved assertion of the attorney-client privilege. Hepner and McKirdy concerned the protection of patients' privacy rights in files seized from offices of psychiatrists suspected of engaging in insurance fraud.
It is true that the courts of this state have not uniformly adopted the deferential standard in reviewing determinations of probable cause to support search warrants. (See, e.g., People v. Hepner (1994) 21 Cal.App.4th 761, 775 [ 26 Cal.Rptr.2d 417] [independent review], citing People v. Camarella (1991) 54 Cal.3d 592, 601 [ 286 Cal.Rptr. 780, 818 P.2d 63].) Nevertheless, a vast majority of appellate courts have adhered to the standard articulated in Illinois v. Gates (1983) 462 U.S. 213, 236 [76 L.Ed.2d 527, 547, 103 S.Ct. 2317]: "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.
Neither "complete precision" nor "near certainty" is required. ( People v. Amador (2000) 24 Cal.4th 387, 392, 100 Cal.Rptr.2d 617, 9 P.3d 993 ; People v Hepner (1994) 21 Cal.App.4th 761, 775-776, 26 Cal.Rptr.2d 417.) 2. Fourth Amendment Case Law on Geofence Warrants
In determining whether a warrant is overbroad courts consider "whether probable cause existed to seize all items of a category described in the warrant" and "whether the government could have described the items more particularly in light of the information available to it at the time the warrant issued." ( United States v. Shi (9th Cir. 2008) 525 F.3d 709, 731-732 ; see also People v. Hepner (1994) 21 Cal.App.4th 761, 778, 26 Cal.Rptr.2d 417 ["overbreadth also hinges on whether a more precise description [of the items to be seized] was reasonably possible"]; People v. MacAvoy (1984) 162 Cal.App.3d 746, 754-755, 209 Cal.Rptr. 34 ["[o]n its face, the warrant would allow the officers to search every part of the fraternity house; since probable cause existed to search appellant's room only, the warrant, as a general rule, is void"]; Owens v. Lott (4th Cir. 2004) 372 F.3d 267, 276 [warrant authorizing search of "all persons" at certain location was valid "if the affidavit and information provided to the magistrate supply enough detailed information to establish probable cause to believe that all persons on the premises at the time of the search are involved in the criminal activity"]; In re Grand Jury Subpoenas Dated Dec. 10, 1987, supra , 926 F.2d at p. 857 ["the concept of breadth may be defined as the requirement that there be probable cause to seize the particular thing named in the warrant"].)
In reviewing the denial of both motions, we defer to the trial court's factual findings if supported by substantial evidence, and use our independent judgment to determine whether, given those factual findings, the search was reasonable under the Fourth Amendment. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Hepner (1994) 21 Cal.App.4th 761, 776.) We have reviewed the unredacted, sealed affidavit, and we agree with the trial court that the unredacted affidavit supports the trial court's finding of probable cause.
Accordingly, " '[A] court cannot resort to facts outside the affidavit to determine whether it furnishes such reasonable cause.' [Citation.] Therefore, in the first instance, we look at the affidavit to determine whether the material sought is within the scope of the probable cause underlying the search warrant." (People v. Hepner (1994) 21 Cal.App.4th 761, 775-776.) As noted, Osejo acknowledges that Detective Harrison's affidavit provided probable cause to search all Facebook messages between himself and Eliana.
As we explain below, substantial evidence supports the trial court's finding that there are no material misrepresentations in the affidavit. (People v. Hepner (1994) 21 Cal.App.4th 761, 776, 26 Cal.Rptr.2d 417 ["to the extent the court heard evidence and resolved factual issues in the [defendant's] efforts to traverse the affidavit in support of the search warrant, the trial court's good faith factual findings, "'whether express or implied, must be upheld if they are supported by substantial evidence"'"].) Assuming we independently reviewed the record, we would find no deliberate misrepresentations and no speculation designed to deceive.
[Citation.] Time factors must be examined in the context of a specific case and the nature of the crime under investigation.’ (United States v. Koelling (8th Cir. 1993) 992 F.2d 817, 822.)” (People v. Hefner (1994) 21 Cal.App.4th 761, 782-783.) As a threshold matter, we consider the issue of forfeiture.