Opinion
No. H032911
12-18-2008
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA, Respondent, SHUNNEE KING, Real Party in Interest.
Not to be Published in Official Reports
Shunnee King, the defendant in a pending criminal proceeding in superior court, filed a motion to suppress certain evidence (Pen. Code, § 1538.5), contending that the evidence was unlawfully seized during the execution of a search warrant at his residence. The trial court granted the motion, finding that the search warrant did not authorize the seizure of the contested items. The People have filed a petition for writ of mandate (§ 1538.5, subd. (o)) contending that the trial court erred in granting the motion, as the contested items were contraband that were either in plain view or located in a place the officers were authorized by the warrant to be. For the reasons stated below, we agree with the People that the trial court erred in suppressing a money clip and its contents that were found inside a shoe box in the bedroom, subsequent interviews of two alleged victims, defendants ID that was found on a couch in defendants bedroom, and gang-related items. However, we find that the trial court properly granted defendants motion to suppress in all other respects. Accordingly, we will issue a writ of mandate directing the trial court to vacate its order granting the motion to suppress and to enter a new order granting the motion to suppress as to all contested items except the money clip and its contents, the subsequent interviews of the two alleged victims, defendants ID, and the gang-related items.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant is charged by information with robbery in an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); count 1), mayhem (§ 203; count 2), three counts of attempting to dissuade a witness (§ 136.1, subd. (c)(1); counts 3, 8 & 9), first degree burglary (§§ 459, 460, subd. (a); count 4), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 5), two counts of procuring and pimping a minor for prostitution (§ 266i, subd. (b)(2); counts 6 & 7), and misdemeanor child molestation (§ 647.6, subd. (a); count 10). The information further alleges that defendant personally inflicted great bodily injury on the victim of count 5 (§ 12022.7, subd. (a)), and that he committed the offenses in counts 1 through 9 for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)).
Defendant filed a motion to suppress "evidence and observations and fruits thereof, relating to an illegal search and seizure pursuant to an invalid search warrant by police officers . . . on or about December 14, 2005 . . . ." Defendant contended that the affidavit in support of the search warrant relied on illegally seized evidence and fruits derived therefrom, so that information had to be excised from the affidavit before determining whether probable cause existed for the warrant. Defendant also contended that the officers executing the warrant exceeded the scope of the warrant when they seized items not described in the warrant. The People filed opposition to the motion, first contending that the affidavit in support of the search warrant was not based on illegally seized evidence and that the affidavit contained probable cause to support issuance of the warrant. Following a hearing on March 3, 2008, the trial court found that the affidavit supporting the search warrant did not contain evidence that had been illegally obtained by the South San Francisco Police Department.
Defendant filed a supplemental memorandum in support of his contention that the officers executing the warrant unlawfully seized items not specified in the warrant. He argued that the officers were not authorized to seize indicia of occupancy, suspected gang-related items, ammunition, or other items the officers did not then know were criminal in nature. The People filed opposition, contending that the contested items were contraband observed in plain view while the officers were searching areas where the items authorized by the warrant were likely to be found and were in fact found. The evidence presented at the April 23, 2008 hearing on the motion was as follows.
San Francisco Police Officer William Ahern testified that, prior to March 2008, he was a special agent with the California Department of Justice and he commanded a task force in San Mateo County. In that capacity, on December 1, 2005, he and other officers interviewed T. regarding defendant. During that interview, T. talked about an incident during which defendant struck her and about a separate incident during which defendant beat up a client in the San Jose area. The officer included information he learned from T. in an affidavit. On December 5, 2005, Officer Ahern presented the affidavit and request for a warrant to Judge Lee of the San Mateo County Superior Court. The requested warrant was to search defendants residence in Pacifica and a laptop computer that had already been seized by the South San Francisco Police Department.
The affidavit in support of the warrant states in pertinent part that on November 28, 2005, Officer Ahern met with San Francisco Police Detective Bob Eastman regarding an ongoing investigation of the use of craigslist.org by prostitutes to advertise for services in the city of South San Francisco. Detective Eastman stated that posted on craigslist.org were multiple advertisements from a 19-year-old woman named "Stacy" offering sexual services. Detective Eastman further stated that he had contacted "Stacy" in an undercover capacity on August 31, 2005, and agreed to meet with her at a Quality Inn in South San Francisco; that other officers were able to determine that "Stacy" was staying in a room at the Inn that was registered to defendant; and that the officers contacted defendant as he left that room and found a female inside who identified herself as 19-year-old T. When Detective Eastman met with defendant and T. in the room, he determined that T. was the woman depicted in the ads for "Stacy" on craigslist.org, and that a cell phone in the room belonging to T. was the phone identified with the number the detective had used to contact "Stacy." T. admitted being involved in prostitution, and stated that a laptop computer found in the room was used to post her ads on craigslist.org. The laptop computer contained multiple photos of T. in various stages of undress which were from the same series of photos as the one used in the craigslist.org ads. Defendant admitted that he knew T. was a prostitute but claimed that she was 19 years old. It was determined that T. was a minor. T. was arrested, the laptop computer was seized, and defendant was released pending further investigation. Defendant returned a short time later and requested that his laptop computer be returned to him, but was told that it could not be returned because it contained pictures of T., a minor, in various stages of undress.
The affidavit further states that Officer Ahern and FBI Special Agent Adrianne Sparrow met with T. on December 1, 2005. T. agreed to speak with them regarding her relationship with defendant. She stated that she first met defendant when she was 13 and that she has visited defendant in the home in Pacifica that he shares with other specified members of his family. T. and defendant began having a sexual relationship around her 14th birthday in July 2005, but their relationship was violent and he would hit her repeatedly if she refused to do what he asked her to. He had her and another girl dance for men at parties, and he took suggestive and sexually explicit photos of her. He used a digital camera to take the photos, developed them, and had them placed on a CD-ROM. She thought defendant kept the CDs in a safe under his bed. Defendant also purchased some lingerie for her at several stores in San Francisco, posted the pictures of her wearing the lingerie to craigslist.org, wrote the advertisement, and used his email address to set up the account. He told her that she would act like the clients girlfriend but no sex would be involved. She had oral sex with her clients but not intercourse. She earned approximately $4,000 to $5,000 while working as a prostitute, but defendant took all of the money she earned. If she told him that she did not want to work, he hit her.
Judge Lee signed the search warrant on December 5, 2005. The warrant authorized a search for sexually suggestive and/or explicit material, including but not limited to: "photographs, CD-ROMs, movies, photographic slides, videotapes, audiotapes, books, and magazines depicting juvenile females and explicit sexual activity." It also authorized a search for exposed but undeveloped rolls of film and cameras utilizing such film. Before signing the warrant, Judge Lee required Officer Ahern to cross out that part of the warrant that authorized a search for "personal diaries, journals, ledgers, address books, and/or similar written or recorded correspondence, or any locked container, document safe, or fire safe."
Officer Ahern further testified that on December 13, 2005, "for officer safety reasons, primarily," he spoke with Detective Lane Broberg of the gang task force because he had received some information from Detective Eastman that defendant was a member of a validated San Francisco gang. "If you are executing a search warrant, you want to know if there is a potential hazard to officers making entry." Detective Broberg told Officer Ahern that defendant was a member of the 25th Street Gang, also known as West Mob; that defendant went by the street moniker "Blue"; and that defendant was known to be armed. The officer ran defendants criminal history and learned that defendant had once been arrested pursuant to section 186.22 for being a member of a criminal street gang.
Officer Ahern and other officers executed the search warrant on defendants residence around 7:15 a.m. on December 14, 2005. Prior to entering the residence, he knocked and announced the officers presence. When nobody answered the knock, the front door was "breached mechanically." The officers did a protective sweep of the residence and found three adults, a juvenile, and an infant, but not defendant. The residents were detained in the living room during the search, which lasted about one to one and one-half hours.
As the on-scene supervisor, Officer Ahern gave the other officers a list of the items they were to search for and told them to search all containers in which these items could be found, to point out the locations where the items were found so he could record them, and to photograph the items in place prior to seizing them. The search focused on defendants second-floor bedroom, which defendants mother identified. From that bedroom, the officers seized the following 17 items, listed in the order of their seizure: (1) an assault rifle, which is an illegal weapon, that was found in the closet in a rifle case; (2) a red bag containing a store receipt and lingerie, similar to items that T. had said that defendant had purchased for her at the store to use during her calls, that was found in the closet; (3) a Nike shoe box containing numerous items, including over 50 sexually explicit or suggestive photographs of T. and other young women, letters addressed to defendant, keys, empty baggies, and prescription medication for defendant, that was found on the top of the television set; (4) a red plastic box containing ammunition and baseball cards that was found in the closet; (5) a small safe that was found under the bed and that was inadvertently left at the scene; (6) defendants drivers license, social security card, and ID that were found on a couch partially wedged between cushions; (7) gang-related photographs that were found in a top dresser drawer; (8) a videotape that was found on the desk; (9) a gang-related photograph of defendant and other gang members that was found on a mirror over the desk; (10) a white T-shirt with a photograph on it, over which were "R.I.P NOILA," and under which were "HARD HITTER," that was found hanging in the window; (11) miscellaneous letters addressed to defendant and receipts with defendants name in them that were found on a bedside table; (12) a lien for a Ford Taurus with defendants name on it found on a bedside table; (13) a T-shirt with a photograph on it and the name "Tommy Fat" that was found on a wall; (14) ammunition that was found in a dresser drawer; (15) a resume book with defendants name on it that was found in a dresser drawer; (16) an NFL Game Day box containing some sexually-explicit photographs that was found in a dresser drawer; and (17) a gang-related photograph that was found in the mirror above the bed.
The officers did not inventory the contents of the Nike shoe box, the NFL Game Day box, or the videotape at the scene as there were two children and an elderly woman in the house and Officer Ahern did not want to occupy the residence for an extended period of time. "I felt it was important to conduct the search, get in and get out as soon as possible." Officer Ahern and Agent Sparrow reviewed these items and inventoried them the next day, December 15, 2005. When they inventoried the Nike shoe box, they found in the bottom of the box a California drivers license, a California AAA card, and two credit cards in the name of David Schneider inside a money clip. Officer Ahern had not encountered anybody with that name at defendants home during the search and the officer remembered that T. had mentioned that defendant had beat up a client in the San Jose area. The officer felt that these items were related to the beating incident so he retained the items for further investigation.
On December 27, 2005, Officer Ahern and Agent Sparrow spoke with T. again, and asked her about the San Jose incident. T. said that the client decided to not go forward with a "date" and she told him that there would be a cancellation fee. The client did not want to pay the fee. Defendant arrived and there was a fight, during which time defendant took a money clip from the client. Officer Ahern then spoke to Schneider, who confirmed that he had a money clip and his identification stolen.
Agent Sparrow testified that she was involved in the execution of the search warrant on defendants residence on December 14, 2005. At the time, there was an open federal investigation involving T. and prostitution. After the search, she helped Officer Ahern inventory the items that had been seized during the search. In a box containing a lot of sexually explicit photographs of young girls and other miscellaneous items, they discovered a drivers license, some credit cards, and a AAA card, all in the name of David Schneider with a Los Gatos address, banded together in a metal money clip. When the items were found, Agent Sparrow believed that they were "related to criminal activity" because nobody at defendants residence had the last name of Schneider, there was no information that a white male lived at the residence, and the items were banded together and in a box. Agent Sparrow believed that the items might be related to an incident that T. had spoken about on December 1, 2005, where defendant had beaten up a client in the San Jose area. She discussed T.s statement with Officer Ahern as they were examining the items.
On December 27, 2005, Agent Sparrow and Officer Ahern contacted T. again, and she provided them with additional information regarding the incident. T. said that she, defendant and an associate went to a house on a prostitution call, and that defendant beat up one of the men there. T. said that the incident occurred in the San Jose area, but she was not sure which town it was in because she was not familiar with the area. She described the victim as a white male and said that he held up a money clip while lying on the ground, and that defendant took the money clip from him. Agent Sparrow then interviewed David Schneider.
On April 29, 2008, the court ruled as follows: "First of all, the court is satisfied that the defendant had an expectation of privacy with respect to the items at issue. [¶] The court finds that all of the items listed on page 8 of the defendants supplemental memorandum were unlawfully seized. Those items must, therefore, be excluded. [¶] More specifically, . . . item number three, and that is: [¶] `The contents of the Nike shoe box (with the exception of the sexually explicit and suggestive photographs). [¶] And those items are listed on page 8, and they do include: [¶] The `Schneider money clip, identification and credit cards. [¶] `Item number four; [¶] `Item 6, 7, 9, 10, 11, 12, 13, 14, 15, and 17. [¶] Furthermore, the subsequent interviews of [T.] and David Schneider regarding the alleged robbery must also be excluded. [¶] The defendants rights were violated. [¶] The defendants motion is granted in its entirety."
At oral argument, the People contended that the trial court ordered the suppression of item No. 2, the store bag containing a receipt and lingerie. However, defendant contended, and the record shows, that defendant did not seek and the court did not order suppression of that item.
On May 9, 2008, the People filed a petition for writ of mandate in this court contending that the trial court erred in granting the motion to suppress. (§ 1538.5, subd. (o).) The People argued that a search conducted pursuant to a search warrant permits the seizure of unlisted items of an incriminatory nature in plain view and in containers known to possess other items so that the container may be more thoroughly searched at a later time. The People also argued that the doctrine of inevitable discovery would have justified the seizure of the items within the Nike shoe box had the box been inventoried on site, as the incriminatory nature of the contents was apparent upon plain view. We issued a stay of all trial court proceedings and allowed defendant time to file preliminary opposition to the petition. Defendant declined to submit preliminary opposition.
On August 11, 2008, we issued an order to show cause and allowed defendant a final opportunity to submit any opposition to the petition. Defendant filed opposition on September 25, 2008, and the People filed a reply on October 14, 2008. In his opposition, defendant contends that the officers unlawfully seized indicia of occupancy, ammunition, and the alleged gang photographs and T-shirts, because the officers were not given authorization to seize these items. He further argues that the officers unlawfully seized the entire contents of the Nike shoe box because it was not locked and did not contain a large volume of intermingled documents that justified its wholesale seizure.
DISCUSSION
The Law
Our standard of review of an order granting a motion to suppress is well settled. In ruling on a motion to suppress, "the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence . . . on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior courts express or implied findings if they are supported by substantial evidence. [Citation.]" (People v. Laiwa (1983) 34 Cal.3d 711, 718; People v. Glaser (1995) 11 Cal.4th 354, 362; see also Ornelas v. United States (1996) 517 U.S. 690, 699.) However, "[i]n determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser, supra, 11 Cal.4th at p. 362; see also Ornelas v. United States, supra, 517 U.S. at p. 699.)
In this case, the search warrant gave the officers authority to forcibly enter defendants residence. " ` "When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles, which although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as the result of the officers efforts." [Citation.] (People v. Diaz (1992) 3 Cal.4th 495, 563; Minnesota v. Dickerson (1993) 508 U.S. 366, 374-375; Horton v. California (1990) 496 U.S. 128, 135-137; People v. Kraft (2000) 23 Cal.4th 978, 1041, 1043.) To justify a seizure, the officers must lawfully be in the position from which they view the item; the incriminating character of the item as contraband or evidence of a crime must be immediately apparent; and the officers must have a lawful right of access to the object. (Horton v. California, supra, at pp. 136-137; People v. Kraft, supra, at p. 1041; People v. Bradford [(1997)] 15 Cal.4th [1229,] 1295.) The Fourth Amendment does not prohibit such seizure of evidence in plain view even if the discovery by the officers was not `inadvertent. (Horton v. California, supra, at p. 130; People v. Bradford, supra, at p. 1294.)" (People v. Gallegos (2002) 96 Cal.App.4th 612, 622-623.)
"The incriminating nature of the item is `immediately apparent when the police have probable cause to believe it is contraband or evidence of a crime; officers need not know, to a near certainty, that the item is evidence of a crime. (Minnesota v. Dickerson, supra, 508 U.S. at p. 375; Arizona v. Hicks (1987) 480 U.S. 321, 326; Texas v. Brown (1983) 460 U.S. 730, 741-742 (plur. opn.); People v. Kraft, supra, 23 Cal.4th at p. 1043.) `[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. [Citation.] (Texas v. Brown, supra, 460 U.S. at p. 742.) `If, however, the incriminating character of an object in plain view is not immediately apparent, the plain view doctrine cannot justify its seizure. [Citations.] (People v. Bradford, supra, 15 Cal.4th at p. 1295.)" (People v. Gallegos, supra, 96 Cal.App.4th at p. 623.) The items need not be "associated with a particular crime as a prerequisite to their seizure; . . . it is sufficient that the investigators have probable cause to believe the item is evidence of some crime." (People v. Kraft, supra, 23 Cal.4th at p. 1043.)
The Assault Rifle (Item No. 1)
Defendant did not move to suppress the assault rifle, item No. 1, and the court did not order its suppression. The assault rifle was found in the closet of the bedroom in a rifle case. Because the assault weapon was "reasonably identifiable as contraband," People v. Gallegos, supra, 96 Cal.App.4th at p. 622), and "the incriminating character of the item as contraband . . . [was] immediately apparent" (ibid.), the officers were justified in seizing it.
The Nike Shoe Box and its Contents (Item No. 3)
Defendant moved to suppress the contents of the Nike shoe box, item No. 3, with the exception of the sexually explicit and suggestive photographs, and the court granted the motion as to the items defendant sought to suppress. The People now argue that the trial court erred in suppressing the money clip containing Schneiders ID and credit cards that was found in the Nike shoe box, as it was immediately apparent to the officers that this was evidence of a crime and the evidence would have been inevitably discovered even if the contents of the Nike shoe box had been inventoried at the searched residence. And, for the same reason, the People argue that the court erred in suppressing the post-search statements of T. and Schneider. Defendant argues that the officers unlawfully seized the Nike shoe box, that the officers did not have probable cause to believe the money clip was related to criminal activity when they first viewed it, and that the inevitable discovery doctrine does not apply.
Pursuant to the search warrant, the officers were permitted to search defendants entire bedroom, including the Nike shoe box, for sexually explicit and/or suggestive photographs, exposed film, and cameras. (United States v. Ross (1982) 456 U.S. 798, 820-823.) The officers found numerous explicit and/or suggestive photographs in the shoe box. Although the officers removed the shoe box rather than inventorying its contents at the residence, Officer Ahern provided a legitimate justification for that decision: he wanted to avoid a lengthy presence at the residence given the number and ages of the residents present who had to be detained during the search. As the officer testified that there were over 50 explicit or suggestive photos of T. and other young women in the shoe box, inventorying the photographs at the residence would have taken an extended amount of time.
The search of a package or container need not always be contemporaneous with its seizure, as long as the delay is not unreasonable. (See e.g., United States v. Johns (1985) 469 U.S. 478, 486-487; People v. Kibblewhite (1986) 178 Cal.App.3d 783, 786.) In Kibblewhite, a safe was seized at the time of the execution of a search warrant at a residence, but it was not opened and searched until four days later. The appellate court upheld the search because the search warrant authorized a search of the residence as well as any containers therein which might contain the contraband sought by the warrant, the items in the safe at the time it was seized were still there four days later when it was searched, the defendant did not have the right to have the safe forcibly opened in his presence, and the defendant demonstrated no possible prejudice from the delay. (Kibblewhite, supra, 178 Cal.App.4th at p. 786.) We conclude that similar reasoning applies here. The Nike shoe box was found in plain view, on the top of a television set, and it held a number of sexually explicit photographs of T. and other young women, which were the subject of the search warrant. The items in the box when it was seized were still in there the next day when the box was searched and inventoried. Defendant did not have the right to have the boxs contents inventoried at the time of the execution of the warrant, and he demonstrates no possible prejudice by the delay. Accordingly, we find that the officers acted reasonably under the circumstances in seizing the entire shoe box.
When Officer Ahern and Agent Sparrow began inventorying the contents of the shoe box the next day, they found a money clip containing Schneiders ID and credit cards. Both officers testified that when they examined the money clip, they immediately believed that the money clip and its contents were evidence of some crime because the items obviously did not belong to defendant or to any other resident of the home from which the items had been seized. While examining the money clip and its contents, Agent Sparrow discussed with Officer Ahern the assault initially revealed by T. during her December 1, 2005 interview, and the officers reasonably concluded that Schneider may have been the victim of that incident, and that the items may have been taken from Schneider during that incident. "Searching officers may seize items not listed in the warrant, provided such items are in plain view while the officers are lawfully in the location they are searching and the incriminating character of the items is immediately apparent. [Citation.]" (People v. Kraft, supra, 23 Cal.4th at p. 1043; Horton v. California, supra, 496 U.S. at pp. 136-137.) After the officers seized the money clip, they asked T. about the details of the assault incident and subsequently interviewed Schneider, who confirmed that he was the victim of the incident.
As the officers lawfully seized the Nike shoe box and were justified in inventorying its contents either at the residence or at a later time, and the incriminating nature of the money clip and its contents was immediately apparent to the officers when they found the money clip in the shoe box while conducting their inventory, the court erred in suppressing the money clip, its contents, and the subsequent interviews of T. and Schneider. (Horton v. California, supra, 496 U.S. at pp. 136-137.)
Because we find that the officers lawfully seized the money clip and its contents, we need not address the Peoples argument that defendant lacks standing to challenge the seizure of those items.
Indicia of Occupancy (Item Nos. 6, 11, 12 & 15)
The People argue that the court erred in suppressing item Nos. 6, 11, 12, and 15, various items that were indicia of occupancy, as the items were "located in close proximity to the seized sexually explicit photographs of young girls . . . and weapons" and were "evidence connecting [defendant] to the crime under investigation and his possession of evidence of the crime." Item No. 6 comprised defendants drivers license, social security card, and ID; item No. 11 comprised miscellaneous letters and receipts; item No. 12 was a car lien; and item No. 15 was a resume book. Defendant argues that the search warrant did not have a "dominion and control clause," a standard feature in search warrant practice (see People v. Balint (2006) 138 Cal.App.4th 200, 206), and the court required Officer Ahern to cross out the portion of the warrant authorizing seizure of "personal diaries, journals, ledgers, address books, and/or similar written or recorded correspondence," thus the warrant did not authorize seizure of evidence connecting defendant to the residence where the officers conducted the search.
"As the Supreme Court explained, `By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. (Maryland v. Garrison (1987) 480 U.S. 79, 84.) Thus, the more specifically the warrant describes the items sought, the more limited the scope of the search. Conversely, the more generic the description, the greater the risk of a prohibited general search. [Citation.]" (People v. Balint, supra, 138 Cal.App.4th at p. 206.)
Dominion-and-control clauses are a standard feature in search warrants. (People v. Balint, supra, 138 Cal.App.4th at p. 206.) "[D]ominion-and-control clauses in warrants have been upheld by the courts." (People v. Nicolaus (1991) 54 Cal.3d 551, 575.) Such clauses permit officers to search for letters, papers, and bills tending to show who occupied the residence or a particular bedroom in a residence at the time of the execution of a warrant. (Ibid.) However, officers also act properly when they seek independent evidence to establish a defendants occupancy and control over any evidence seized from a residence or part thereof, for presentation in court. (Ibid.)
Here, the warrant did not include a dominion-and-control clause, and the magistrate specifically refused to authorize the seizure of "personal diaries, journals, ledgers, address books, and/or similar written or recorded correspondence." The search warrant specifically described the items authorized to be seized as "[s]exually suggestive and/or explicit material," "[e]xposed but undeveloped rolls of film," and "[c]ameras utilizing the above film." Although defendant does not contest that the residence that was searched pursuant to the warrant was his residence, because defendant was not the sole occupant of the residence searched, indicia of occupancy of the actual room in which contraband was found is material in cases such as this where the allegation is that defendant possessed both contraband listed in the warrant and other contraband found in plain view. (People v. Nicolaus, supra, 54 Cal.3d at p. 575.) Thus, we believe that the officers were justified in seizing item 6, defendants drivers license, social security card, and ID that were found on a couch in the same room as the "sexually suggestive and/or explicit material," specified in the search warrant and the assault rifle. (Ibid.)
However, in this case the magistrate specifically denied the officers request to seize "personal diaries, journals, ledgers, address books, and/or similar written or recorded correspondence," by requiring that language be crossed out of the search warrant. While these are also items that officers would otherwise be authorized to seize as evidence of defendants dominion and control over the items seized from the bedroom, because of the particular facts of this case and the language that was crossed out in the search warrant, we will uphold the trial courts suppression of item Nos. 11, 12 and 15, the miscellaneous correspondence, receipts, car lien, and resume book.
Gang-related items (Item Nos. 7, 9, 10, 13, & 17)
The People contend that the trial court erred in suppressing item Nos. 7, 9, 10, 13, and 17, the gang-related photos and T-shirts, as the court "failed to recognize the plain view evidentiary nature of the observation and seizure of these items and their nexus to the crime under investigation—namely that it was committed in furtherance of gang activity." Defendant was included in at least one of the photos. The People argue that, "because the search warrant affiant and finder had prior information that [defendant] was a validated gang member[, the affiant] therefore had probable cause to believe [the items were] evidence of the crime being investigated for the benefit of the street gang." Defendant argues that there was no information in the affidavit in support of the search warrant or testimony at the hearing on the motion to suppress that the offenses under investigation may have been committed in association with or for the benefit of a criminal street gang. And, as merely associating with persons affiliated with a gang is not illegal, it cannot be said that the items seized were plainly contraband or evidence of a crime.
Officer Ahern did not include any information about defendants suspected gang activity in the affidavit in support of the search warrant. Nor did either he or Agent Sparrow testify at the hearing that there was an on-going investigation of defendant that involved suspected gang activity. Officer Ahern testified that he looked into defendants suspected gang activity before execution of the search warrant primarily to determine officer safety issues at the time the warrant was to be executed. Agent Sparrow testified that the on-going federal investigation involved the pimping, pandering and prostitution of T.; Agent Sparrow did not mention defendants possible gang activity.
However, Officer Ahern further testified that he learned from Detective Broberg that defendant was a member of the 25th Street Gang, also known as West Mob; that defendant went by the street moniker "Blue"; and that defendant was known to be armed. Officer Ahern also learned that defendant had previously been arrested for gang activity. Items need not be "associated with a particular crime as a prerequisite to their seizure; . . . it is sufficient that the investigators have probable cause to believe the item is evidence of some crime." (People v. Kraft, supra, 23 Cal.4th at p. 1043.) "[O]fficers need not know, to a near certainty, that the item is evidence of a crime." (People v. Gallegos, supra, 96 Cal.App.4th at p. 623.) " `[T]he facts available to the officer [need only] "warrant a man of reasonable caution in the belief," [citation] that certain items may be contraband . . . or useful as evidence of a crime. " (Ibid.) The officer need not show that such a belief is "correct or more likely true than false." (Ibid.)
Before seizing the gang-related items, the officers knew of defendants suspected gang activity and they had already seized an illegal assault weapon and sexually explicit and suggestive photos of T. and other young women. Therefore, the officers had probable cause to believe defendants offenses may be gang related and, therefore, that the gang-related items may be useful as evidence of that fact. Accordingly, the trial court improperly granted defendants motion to suppress item Nos. 7, 9, 10, 13, and 17, the gang-related photos and T-shirts.
Ammunition (Item Nos. 4 & 14)
The People further argue that the trial court erred in suppressing item Nos. 4 and 14, the ammunition. The People argue that "[t]he affiant/finder was aware that a gun had previously been seized from [defendants] automobile at the time of an undercover sting where he admitted to pimping the 14-year-old prostitute, and that [defendant] was known to be armed." (Fn. omitted.) Defendant argues that the possession of ammunition is not illegal and thus cannot be considered contraband or evidence of crime. We agree with defendant. Although Officer Ahern testified that he was aware that defendant was known to be armed, there is nothing in the record before us, which does not include the transcript of defendants preliminary examination, to support the Peoples contention that Officer Ahern was aware that a gun had previously been seized from defendants automobile prior to issuance of the search warrant. Further, there is nothing in the record to support a finding that the ammunition seized was related to the offenses under investigation, was contraband, or was evidence of any crime. Accordingly, we cannot say that the court erred in suppressing the ammunition listed in item Nos. 4 and 14.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its April 29, 2008 order granting defendant Kings motion to suppress evidence, and to enter a new order granting the motion as to all contested items with the exception of the "Schneider money clip, identification and credit cards" contained in "Item #3," the Nike shoe box, and the subsequent interviews of T. and David Schneider; the "Indicia related to Shunnee King" contained in "Item #6"; and the "[a]lleged gang" items in "Item # 7," "Item # 9," "Item #10," "Item # 13," and "Item # 17." The temporary stay order is vacated. This opinion is made final as to this court seven days from the date of its filing. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR:
MIHARA, J.
MCADAMS, J.