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People v. Vassiliou

California Court of Appeals, First District, Fourth Division
Apr 27, 2009
No. A121190 (Cal. Ct. App. Apr. 27, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. BILLY VASSILIOU, Defendant and Appellant. A121190 California Court of Appeal, First District, Fourth Division April 27, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 050708172

Ruvolo, P. J.

I. INTRODUCTION

Appellant Billy Vassiliou appeals from his conviction for possession of a controlled substance in violation of Health and Safety Code section 117377, subdivision (a), and receipt of stolen property in violation of Penal Code section 496, subdivision (a), after having pleaded no contest to those charges. He argues here, as he did below, that the trial court erred in denying a motion to suppress evidence seized during a search of his residence. He argues further that the plain view doctrine did not justify the seizure of evidence hidden in cloth bags since their incriminating character were not apparent until the bags were opened. Finally, he argues that one officer’s intent to search the home for items not described in the warrant invalidated the seizure of those items. We reject these assertions, and affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In December 2005, appellant was a suspect in a police investigation of a burglary of the pro shop at Boundary Oak Golf Course in Walnut Creek. Cash from a freestanding ATM was stolen by making several cuts in and prying open the cash container. Also, the entire office safe, containing about $1,000 in cash and a golf course gift certificate, was pried off the floor and stolen. Two pry bars and a metal tent pole were found on the floor of the shop. A hand saw was found on the nearby putting green, although it seemed to the investigating officer unlikely that the saw could have been the one used to cut into the ATM.

On the night of the burglary, surveillance cameras recorded two men at the golf course restaurant service entrance, on the other side of the building housing both the pro shop and restaurant. Two golf course employees identified one of the burglars in the video as appellant, who was known to those employees because appellant’s father had owned the golf course restaurant several years earlier.

Detective Gurecki of the Walnut Creek Police Department went to what he believed to be appellant’s home to speak with him about the burglary. While there, Gurecki noticed a hat inside the car in appellant’s driveway which was similar to one worn by a burglar as shown in the surveillance video, and also some tools which he thought may have been used in the burglary.

Gurecki thereafter prepared an affidavit for a warrant to search appellant’s home for stolen cash and golf course gift certificates, and any clothing similar to that shown in the surveillance video. He also sought “indicia” that appellant himself lived in the home, although the affidavit mentioned that Gurecki had already contacted appellant at the home and had DMV records which listed appellant’s address at the home. Specifically, the “indicia” sought included “Items of personal property of the type which would commonly be found in the place where a person lives, which would tend to prove: (A) the identity of the people who reside at the place being search[ed]; and/or (B) the identity of the person(s) who are in possession of any of the items listed on this Search Warrant which are found. Indicia items include but are not limited to: [¶] 1. personal identification cards[;] [¶] 2. addressed mail, which has been received[;] [¶] 3. items, including but not limited to clothing, books, jewelry, belt buckles, purses and wallets, books of photos of mementos, and diaries, which are inscribed with personal identifiers (name, initials, nicknames, Social Security Number, driver’s license number, photograph, etc.)[;] [¶] 4. bills and receipts and statements, including for rent or mortgage, utilities (gas, electricity, telephone, cell phone), car payments, credit card statements, bank statements[;] [¶] 5. registration documents, such as for motor vehicles[;] [¶] 6. snapshots, Polaroids, digital photos and videotapes[;] [¶] 7. keys[.]”

The warrant was issued, and after a pre-search briefing, it was executed. Twelve or thirteen officers, including a narcotics enforcement team, conducted the search. Detective Gurecki explained that numerous officers were necessary because appellant’s house was large and had security cameras, and because Gurecki knew that appellant had a police scanner and generally monitored police activity. He also explained that, while the narcotics officers were not present to search appellant’s home for narcotics, the narcotics division often assists in searches when extra officers are needed.

One searching officer, Craig Jimenez, also suspected appellant in a separate burglary in Lafayette. At the pre-search briefing, he gave the other searching officers a list of the property stolen in Lafayette, including garden tools and a coin collection, so that the property could be seized if found.

The search produced methamphetamine and a glass pipe found inside a cloth bag in the garage, and a handgun in a cloth bag found in the bedroom behind a dresser. Officer Jimenez found and seized the stolen coin collection, a weed eater and a chain saw. Jimenez called the person whom he believed was the property’s rightful owner, who identified the coin collection and garden tools, and Jimenez released the property to him. The officers found, as “indicia,” a bank statement, a cell phone bill, and other mail addressed to appellant.

The officers also found what they believed to be stolen property, including photographs, a Sportcat scanner, three yellow metal necklaces, four yellow metal rings, a chain, two bracelets, three watches, a jewelry box, a photo CD player and other items. After seizing these items, Detective Gurecki compared each item to a database of stolen property to ascertain whether it was stolen.

Appellant was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), possession of methamphetamines, a controlled substance, while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession of methamphetamines, a controlled substance (Health & Saf. Code, § 11377, subd. (a)), receiving stolen property, specifically garden equipment (Pen. Code, § 496, subd. (a)), receipt of a stolen motor vehicle (Pen. Code, § 496d), and second degree commercial burglary of the Boundary Oak Golf Course pro shop (Pen. Code, §§ 459, 460, subd. (b)).

Appellant filed a motion to suppress the evidence seized, which was denied. After being assigned to a trial judge, appellant renewed his motion to suppress, which was again denied as to the found methamphetamines, stolen garden equipment, and gun, but granted as to certain other property (the photographs, scanner, necklaces, rings, bracelets, watches, jewelry box, CD player and other items), which were ordered released to appellant. Appellant then entered into a plea bargain whereby he pleaded no contest to the methamphetamine possession and receipt of stolen garden equipment charges, and accepted a sentence of 180 days in county jail and three years probation. Pursuant to the plea bargain, the remaining charges, including the possession of a firearm charges, were dismissed. This appeal followed.

III. DISCUSSION

Appellant argues that the “indicia” of residency clause of the warrant to search his home effectively gave license to the police to engage in an evidentiary fishing expedition which violated his Fourth Amendment right against warrantless searches. He also claims that the seizures of the methamphetamines, gun and garden equipment are unjustifiable. He argues the drugs and gun were concealed in bags and therefore their incriminating character was not immediately apparent as required by the plain view doctrine. Finally, appellant argues that since Office Jimenez intended to search for the garden equipment without a warrant, the seizure of those items was unlawful.

A. Standard and Scope of Review

Because the trial court acted as a reviewing court in determining the validity of a preliminary hearing ruling, this court, like the trial court, is bound by the preliminary hearing factual findings provided they are supported by substantial evidence. (People v. Snead (1991) 1 Cal.App.4th 380, 384.) Legal conclusions, however, are subject to independent review. (People v. Ayala (2000) 23 Cal.4th 225, 255.)

When a defendant enters into a plea bargain in reliance on the court’s order denying a motion to suppress evidence, an appellate court reviews the entire motion regardless of which charges the defendant was convicted. (People v. Miller (1983) 33 Cal.3d 545.) Thus, the usual rules of harmless error are inapplicable. (Id. at p. 551.) Upon review, if any evidence of any of the charged counts is deemed inadmissible, the considerations underlying the defendant’s decision to accept the plea bargain are deemed to be fundamentally altered, and the defendant is entitled to withdraw his plea. (Ibid.) Therefore, we review the entirety of the motion to suppress regardless of appellant’s ultimate conviction.

B. The Searching Officers Relied in Good Faith on the Warrant and Therefore, Evidence Seized is Admissible Regardless of the Warrant’s Validity

The judge presiding over the preliminary hearing in this case concluded that a warrant seeking indicia of a suspect’s residency is entirely proper and in fact standard in most search warrants. It therefore followed that since the bags in which the drugs and gun were found could have contained indicia, the officers were authorized to open those bags and seize their contents as contraband. Finally, the preliminary hearing judge found that the garden tools were also identifiable as stolen property, and properly seized as contraband, and therefore denied appellant’s motion to suppress in its entirety. The trial court judge found similarly, upholding the admissibility of the drugs, gun and garden tools, but ordered those items which the officers merely suspected as being stolen be returned, such as the jewelry and other items, since they were beyond the scope of the warrant.

Despite these findings, the preliminary hearing judge conceded: “I must admit that in my years and my review of search warrants, I have never seen . . . anything that included . . . clothing, books, jewelry . . . . The listing of items that were to be seized as indicia was much more extensive than any that I have ever seen.” The trial court judge also commented concerning the breadth of the residency indicia clause explaining that, “when I sign off on search warrants, I usually limit the amount of indicia somebody could take unless they have a good reason to make it an infinite number of items . . . so the police can’t go in and indiscriminately take everything . . . so in fact you don’t clean somebody’s house out.” This seems especially prudent advice where, as in this case, the officer has conducted a DMV license inquiry and the address to be searched is listed as the suspect’s home, where the cars in the driveway are licensed to the suspect at the address to be searched, and the officer has actually visited the suspect at the address to be searched.

Although this knowledge of residency was included in the affidavit of probable cause in the warrant application, the warrant still issued. Generally, police officers seeking a search warrant are not required to second guess a magistrate’s decision to issue a warrant. “[I]f the officers executed the search in objectively reasonable reliance upon the validity of a search warrant issued by a neutral magistrate,” evidence obtained is admissible. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.) However, “[a] police officer may not shift all of the responsibility for the protection of an accused’s Fourth Amendment rights to the magistrate by executing a warrant no matter how deficient it may be in describing the places to be searched and the items to be seized. An officer applying for a warrant is required to exercise reasonable professional judgment. [Citations.]” (Id. at p. 1292.)

Therefore, even if the warrant actually lacked probable cause, a trial court may suppress evidence only if the police officer knew or should have known that the magistrate found probable cause in error. (People v. Camarella (1991) 54 Cal.3d 592, 606.) This standard is quite high and an officer is entitled to rely on the magistrate’s decision even where the officer reasonably believes that whether cause exists presents a close question or debatable issue. (Id. at p. 607.)

The preliminary hearing judge never reached the issue of whether Detective Gurecki knew that his affidavit lacked probable cause since he found that the warrant actually was supported by adequate probable cause. We too decline to comment on whether probable cause actually existed since our analysis makes doing so unnecessary. Instead, we note that there is no evidence to suggest that the officers deliberately misled the issuing magistrate, preliminary hearing judge, and trial judge, and all believed probable cause existed. We therefore cannot impute knowledge that probable cause did not exist to Detective Gurecki, justifying suppression of the evidence.

Under these circumstances, the searching officers reasonably relied on the magistrate’s finding of probable cause and no evidence found should be suppressed. The motion to suppress based on lack of probable cause was properly denied.

C. Because the Searching Officers Relied on the Warrant’s Validity, They Could Open Bags and Seize Contraband Found Therein Under the Plain View Doctrine

Appellant also argues that the plain view doctrine should be inapplicable to the methamphetamines and gun because the officers could not have discovered their identity as contraband until they opened the bags in which they were hidden. But having determined that the searching officers reasonably relied on the warrant’s validity while searching appellant’s home, it necessarily follows that in their search for residency indicia (which the warrant allowed) the officers were authorized to open those bags. Indeed, the factual findings of the magistrate included that the bags containing those items could have contained indicia of appellant’s residency. The seizure of items in plain view is authorized where the searching officers observe the object from a lawful vantage point and the object’s incriminating nature is “immediately apparent.” (Horton v. California (1990) 496 U.S. 128, 136.) Therefore, having been authorized to open those bags in the search for indicia, the officers observed the contents of the bags from a “lawful vantage point.” The incriminating nature of the gun and methamphetamines was of course immediately apparent to the officers and therefore, their seizure was also authorized.

A. Officer Jimenez’s “Intent” to Search Appellant’s Home for Items Not Listed in the Warrant Does Not Invalidate the Items’ Ultimate Seizure

Appellant argues that the seizure of the garden equipment was unreasonable since Officer Jimenez attended the search “intending to search for items . . . of which the magistrate issuing the warrant was completely unaware.” The United States Supreme Court squarely addressed this argument in Horton v. California, supra, 496 U.S. 128 in discussing, under the plain view doctrine, the seizure of contraband even without a warrant listing the contraband. It held that officers finding contraband should not be limited by their prior suspicions: “The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant . . . . [If an officer] has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.” (Id. at pp. 138-139.) Detective Gurecki had procured a warrant for the search of appellant’s home. Having lawfully searched appellant’s home, therefore, the intent of Officer Jimenez with regard to the garden tools is irrelevant to our determination of whether the tools were properly seized.

The Horton court also rejected a claim similar to appellant’s alternative argument that the garden tools should be suppressed since the Fourth Amendment’s “particularity requirement[] is to ‘prevent[] the seizure of one thing under a warrant describing another.’ (United States v. Bridges (9th Cir. 2003) 344 F.3d 1010, 1016.)” This argument ignores the fact that a validly relied upon warrant was issued. “[N]o additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent. If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.” (Horton v. California, supra, 496 U.S. at p. 140.)

Therefore, the intentions of the officers again become irrelevant since they were authorized under a different reasoning to be present in appellant’s home. Had the garden tools been found during an illegal search, or a search of an area outside the scope of the warrant, the garden tools should be suppressed regardless of the intentionality or inadvertence of the searching officers. However, having found that the officers engaged in a lawful search of appellant’s home, and given that there is no evidence that the garden tools were found outside of an area authorized to be searched under the warrant, the seizure of the garden tools was lawful regardless of Officer Jimenez’s intentions.

IV. DISPOSITION

The judgment is affirmed.

We concur: Reardon, J., Rivera, J.


Summaries of

People v. Vassiliou

California Court of Appeals, First District, Fourth Division
Apr 27, 2009
No. A121190 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Vassiliou

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BILLY VASSILIOU, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Apr 27, 2009

Citations

No. A121190 (Cal. Ct. App. Apr. 27, 2009)