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People v. Langer

Court of Appeals of California, First Appellate District, Division Four.
Nov 25, 2003
No. A101264 (Cal. Ct. App. Nov. 25, 2003)

Opinion

A101264.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. KEITH ROBERT LANGER, Defendant and Appellant.


The execution of a residential search warrant to seize drugs also uncovered stolen property, which police also seized. An indicium of ownership found during the search led police to storage units which they suspected contained more stolen property. A warranted search of the storage units turned up additional stolen property. Based on evidence seized in these two searches, appellant Keith Robert Langer was charged with one count of manufacturing methamphetamine and two counts of receiving stolen property. (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 496, subd. (a).) In his suppression motion, Langer argued that all the evidence seized in both searches should be suppressed because police acted in flagrant disregard of the limitations of the first warrant and because evidence discovered during execution of this warrant led to the evidence found when the second warrant was executed. The trial court agreed to suppress some evidence of stolen property found during the first search, but denied the broader aspect of the motion to suppress.

All statutory references are to the Penal Code unless otherwise indicated.

After the suppression motion ruling, Langer pled no contest to all three counts. He was placed on probation for five years and ordered to serve nine months in jail as a condition of probation. On appeal, Langer challenges the trial courts ruling on his suppression motion, contending that the trial court should have suppressed (1) all evidence found in both searches; or (2) alternatively, all evidence recovered during the second search. (See § 1538.5, subd. (m).) We affirm the judgment.

I. FACTS

In August 2001, Fremont police suspected that appellant Keith Robert Langer might be selling drugs and in possession of stolen property. On October 30, 2001, Fremont police detective Arturo Gonzalez filed an affidavit for a warrant to search Langers Mattos Drive residence for methamphetamine and for documents connecting him to the premises. A confidential informant told Fremont police that Langer was selling methamphetamine from his home. A county magistrate approved the search warrant request.

Gonzalez noted in the affidavit that Langer might also have received stolen property, but he did not seek stolen property when he listed evidence he sought to seize. The information police had received about Langers possession of property taken during a Fremont burglary did not seem to be sufficient to obtain a warrant to search for stolen property. The warrant did not authorize a search for stolen property, but police suspected that they might find some.

The warrant was executed at Langers residence on October 31, 2001. Six officers—three drug officers and three theft officers—executed the warrant. It took seven or eight hours to complete the search. Soon after arriving, police found evidence of a methamphetamine laboratory in a backyard shed. They also recovered a radio scanner, which was later found to be stolen property. A safe found in the shed was forced opened, revealing a receipt for a commercial storage facility bearing Langers name. In addition to evidence of drug sales, police also found stolen property. They located remote-controlled helicopters, helicopter parts, and a mountain bicycle that they believed had been stolen. Burglary victim Alfred Hampton came to the residence and identified the helicopters and helicopter parts as those taken from him. The bicycles serial number matched that belonging to a mountain bicycle that had been reported stolen in Sunnyvale. Police seized this stolen property as well as the evidence of drugs.

Police learned that Langer had rented two storage units in Fremont and suspected that he might have drugs or stolen property hidden there. On November 1, 2001, Fremont police detective James Larkin filed an affidavit for a warrant to search these two storage units for items reported to have been taken during the earlier burglary. Those items included tools, transmitters and various helicopters and helicopter parts. The affidavit noted that drugs and stolen property had been found at the residence. The magistrate approved the warrant request to search the storage units. During execution of this warrant, Fremont police found many items of property that appeared to have been stolen—some from Hampton and some from others. Among these items were a ladder, some scaffolding, tools, helicopters and helicopter parts.

In May 2002, Langer was charged by information with one count of manufacturing phencyclidine (PCP) and two counts of receiving stolen property—one for receiving items found at the residence on October 31, 2001, and the other for receiving items found at the storage units on November 1, 2001. (See Health & Saf. Code, § 11379.6, subd. (a); § 496, subd. (a).) He pled not guilty to all three charges. The first count of the information was later amended to delete references to PCP and substitute methamphetamine.

In June 2002, Langer moved to suppress all evidence seized in both the residence and storage unit searches. He argued that seizure of radio-controlled helicopter parts, a radio scanner, a mountain bicycle and documents that led police to the storage units were not authorized by the warrant to search the residence. Langer sought to suppress evidence of remote-controlled helicopters and helicopter parts, scaffolding and the ladder seized as a result of the storage units search. (See § 1538.5.)

At the suppression hearing, an officer testified that the storage unit receipt was an indicium of ownership typically sought after by police in drug searches. Such indicium was specifically listed in the warrant to search Langers residence for drugs. The scanner was also listed in the warrant as an item that might be seized. Officers also testified that it was common to find stolen property during a search for drugs and that when it was found, it was routinely seized. Langer argued that the officers improperly seized stolen property at the residence when they executed the search warrant for drugs, acting in flagrant disregard of the limitations of the warrant.

The trial court concluded that Fremont police did not enter the residence on a pretext because their initial search was related solely to the execution of the warrant to search for drugs. As it concluded that the warrant authorized seizure of the scanner and the storage unit receipt, it denied Langers suppression motion as to these items. However, the trial court suppressed evidence of a mountain bicycle and a remote-controlled helicopter because it was evidence of stolen property seized at the residence that had no relation to the drug search. It concluded that the prosecution met its burden of showing a lawful basis of seizing all evidence other than these items. As such, it denied the motion to suppress all other evidence found at the two searches. The trial court specifically declined to suppress items seized during the storage units search.

Langers counsel had already conceded as much before the trial courts ruling.

After the trial courts ruling on his suppression motion, Langer withdrew his not guilty plea and pled no contest to all three counts. The trial court found him guilty of all three charges and ordered him to undergo a diagnostic evaluation. (See § 1203.03, subd. (a).) In November 2002, Langer was placed on probation for five years and ordered to serve nine months in jail as a condition of probation.

II. SUPPRESSION OF EVIDENCE

A. Standard of Review

On appeal, Langer contends that the trial court erred when it failed to suppress evidence beyond the helicopter and the mountain bicycle that it did suppress. On appeal from the denial of a suppression motion, our role is limited. When reviewing the denial of a motion to suppress, we view the record in the light most favorable to the trial courts ruling and defer to its express or implied findings of fact if those findings are supported by substantial evidence. Then, we apply our independent judgment to measure the supported facts as determined by the trial court against the constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Miranda (1993) 17 Cal.App.4th 917, 922.) Holding this standard of review in mind, we consider the specific claims of error that Langer raises on appeal.

B. Suppression of All Evidence

Langer first argues that all evidence seized as a result of both searches must be suppressed because police acted in flagrant disregard of the limitations of the warrant to search the residence for drugs. He urges us to conclude that their abuse of the authority granted by the magistrate in the first search warrant justifies suppression of all seized evidence found as a result of both warranted searches, regardless of whether the seized property was itemized in the warrants.

A search warrant must describe with particularity the place to be searched and the things to be seized. (U.S. Const., 4th Amend.; Walter v. United States (1980) 447 U.S. 649, 657, fn. 8; People v. Kraft (2000) 23 Cal.4th 978, 1041, cert. den. sub nom. Kraft v. California (2001) 532 U.S. 908.) The particularity requirement protects against general searches—the exploratory rummaging in a persons belongings that some describe as a "fishing expedition." (United States v. Hubbell (2000) 530 U.S. 27, 32; Andresen v. Maryland (1976) 427 U.S. 463, 480; People v. Kraft, supra, 23 Cal.4th at p. 1041.) Typically, an officer executing a search warrant may seize items not specifically named in the warrant that are found in plain view, as long as the officer is lawfully in the place where the view occurs and the incriminating character of the items seen as contraband or evidence of a crime is immediately apparent. (People v. Kraft, supra, 23 Cal.4th at p. 1041; see Skelton v. Superior Court (1969) 1 Cal.3d 144, 157-158.) However, the plain view doctrine does not apply if a warrant is used as a pretext to gain entry for the purpose of conducting a general exploratory search. (People v. Albritton (1982) 138 Cal.App.3d 79, 87.)

Courts assume that the remedy for an impermissible general search is total suppression of evidence. In a footnote, the United States Supreme Court rejected a defendants claim that police so flagrantly disregarded the scope of a warrant when seizing evidence that they converted the warrant into an impermissible general search warrant, thus requiring total suppression of all seized evidence rather than suppression of those for which there was no probable cause to support seizure. (Waller v. Georgia (1984) 467 U.S. 39, 43-44 fn. 3; see People v. Bradford (1997) 15 Cal.4th 1229, 1304-1305.) The Ninth Circuit—consistent with decisions from most Districts of the United States Court of Appeals—has concluded that if police conduct a warranted search in flagrant disregard of the limitations of the warrant about the items designated for seizure, then a blanket suppression of both the items seized pursuant to the warrant and those seized outside the scope of the warrant is required. (See U.S. v. Chen (9th Cir. 1992) 979 F.2d 714, 717; United States v. Whitten (9th Cir. 1983) 706 F.2d 1000, 1010, cert. den. sub nom. Whitten v. United States (1984) 465 U.S. 1100; United States v. Tamura (9th Cir. 1982) 694 F.2d 591, 597; United States v. Rettig (9th Cir. 1978) 589 F.2d 418, 423; People v. Bradford, supra, 15 Cal.4th at p. 1305.) Although acknowledging that the decisions of federal courts of appeal are persuasive but not binding authority in California courts, the California Supreme Court assumed that this remedy would be required in an appropriate case. (People v. Bradford, supra, 15 Cal.4th at pp. 1292, 1305-1306.)

Measured against this legal standard, we find that Langers call for blanket suppression of all seized evidence fails for two reasons. First, the trial court expressly found that the officers did not enter the house on a pretext to search for stolen property that was beyond the scope of the warrant. On this factual issue, we must uphold the trial courts finding if supported by substantial evidence. Police offered testimony from which the trial court could draw a reasonable inference supporting that trial court finding. The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (People v. James (1977) 19 Cal.3d 99, 107.) Thus, we are bound to weigh the legal questions before us using the historical facts as found by the trial court.

We note that the Ninth Circuit is uncertain what standard of review to apply when evaluating a trial courts determination that police flagrantly disregarded the terms of a search warrant. (See U.S. v. Chen, supra, 979 F.2d at pp. 716-717.)

Second, we conclude that the police in this matter did not act in such flagrant disregard of the limitations of the warrant to search the residence that total suppression of all seized evidence would be an appropriate remedy. The total suppression of evidence is an extraordinary remedy, to be used only when violations of the warrants requirements were so extreme that the search was transformed into an impermissible general search. Courts rarely conclude that police conduct was so extreme that the total suppression of all seized evidence is warranted. This remedy is justified if police exceed the scope of the warrant as to the place to be searched; if police use the warrant as a pretext to search for evidence of unrelated crimes; or police were motivated by a desire to engage in an indiscriminate "fishing" expedition. (People v. Bradford, supra, 15 Cal.4th at pp. 1305-1306; see U.S. v. Chen, supra, 979 F.2d at pp. 717, 720.)

The police conduct in this matter does not rise to such a level that total suppression of evidence would be justified. The fact that officers were not surprised when the residence search uncovered evidence of stolen property as well as drugs did not establish a flagrant disregard of the limitations of the first search warrant when considered in the context of all the testimony about the search. Even if officers hoped that they would find stolen property unrelated to that drug evidence which the warrant authorized them to seize, it is also apparent that the search was not simply a pretext for a general search for evidence of unrelated crimes. Under these circumstances, we find that the trial court properly denied Langers motion for the extraordinary remedy of total suppression of all items seized in both searches and properly suppressed only those items of evidence seized during the search of Langers residence that fell outside the scope of the first warrant. (See, e.g., People v. Bradford, supra, 15 Cal.4th at pp. 1305-1306.)

C. Suppression of Evidence of Stolen Property

Alternatively, Langer contends that even if we do not agree that the total suppression remedy applies, the trial court should have suppressed the property found during the residence search that police itemized as stolen property. Specifically, he cites the radio scanner and the storage unit receipt as evidence that ought to have been suppressed by the trial court. He argues that police seized these items as part of a stolen property investigation, not a drug investigation. He implies that suppression of the storage unit receipt would also require suppression of all evidence found during the second search of the storage unit located from this receipt. This, in turn, would entitle him to withdraw his guilty plea to both counts of receiving stolen property, which would then be subject to dismissal for lack of admissible evidence to support them.

When Fremont police inventoried the evidence they seized during the residence search, they created separate lists of drug-related items and stolen property. The radio scanner and the storage unit receipt were listed with the stolen property. On appeal, Langer makes much of the separate lists, reasoning that the police listed these two items on the stolen property list because they did not believe that they needed this evidence to prove their drug case.

Langer also argues that the two lists constitute valuable evidence that the police entered the residence on a pretext. As this argument is based on his assertion that the entry of the residence was a pretext to conduct a general exploratory search, we note that we have already upheld the trial courts express finding to the contrary. (See pt. II.B., ante.) We necessarily reject this contention, as well.

Langers argument elevates form over substance. Both of these items of evidence were relevant to both the drug charge and the stolen property counts. The radio scanner—which happened to be stolen property—was specifically listed in the warrant to search for drugs as a proper item to be seized. The storage unit receipt listing Langers name was found in the shed containing evidence of the methamphetamine laboratory, thus offering evidence of his dominion and control over that location. Such indicium was also listed in the search warrant authorizing the police to seize drugs and drug-related evidence at the residence. We decline Langers invitation to ignore the dual nature of these two items of evidence. Instead, we find that the trial court properly denied his motion to suppress these two items of evidence that were specifically authorized for seizure in the first search warrant. As the suppression motion was properly denied, Langers guilty plea stands.

The judgment is affirmed.

We concur, Kay, P.J., Sepulveda, J.


Summaries of

People v. Langer

Court of Appeals of California, First Appellate District, Division Four.
Nov 25, 2003
No. A101264 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Langer

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEITH ROBERT LANGER, Defendant…

Court:Court of Appeals of California, First Appellate District, Division Four.

Date published: Nov 25, 2003

Citations

No. A101264 (Cal. Ct. App. Nov. 25, 2003)