Opinion
A119619
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH CONFORTI, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Thomas Joseph Conforti appeals from a judgment entered after his plea of no contest to one count of continuous sexual abuse of a child under the age of fourteen (Pen. Code, § 288.5, subd. (a)) and imposition of sentence of six years in state prison. He challenges the denial of his motion to suppress evidence taken from his home pursuant to a search warrant. (Pen. Code, § 1538.5, subdivision (i).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After a preliminary hearing, defendant filed a motion to suppress evidence seized from his home pursuant to a search warrant. The prosecutor filed an opposition to the motion.
The evidence presented at the suppression hearing established that on May 25, 2004, Detective Robert Alexander received information from another officer that defendant had been sexually abusing his then 12-year-old daughter. That day, Detective Alexander spoke with defendants daughter who reported that since October 2003 defendant had been sexually abusing her. The latest incident occurred four days earlier on May 21, 2004, in the bedroom of defendants daughter while she was in bed. At that time, defendant put cocoa butter lotion on his daughters hands and then forced her to masturbate his penis until he ejaculated into her hand. Defendants daughter described the lotion bottle as white with a blue flip top lid and about 10 inches tall. The bottle was kept in the lone drawer in a nightstand in her bedroom. Defendant "wiped up" his semen using a green and red towel with pictures and names of baseball players on it. Defendants daughter believed the towel had not yet been laundered.
After speaking with defendants daughter, the police taped a telephone call between defendant and his daughter that same day. During the telephone call, defendants daughter confronted him about her accusations of sexual abuse. When defendants daughter initially told defendant that she was "scared about what happened on Friday," defendant replied he did not know what his daughter was talking about and he did not want to discuss the matter on the telephone. Defendant continued to say that he could not talk on the telephone, but he eventually responded to some of his daughters accusations. Defendants daughter said she did not want defendant to come into her room or to pull down his pants in front of her, that the last time he told her he would not do it again, that she was afraid to come home, and that she wanted to hear him say that he was wrong and he was sorry. Defendant did not deny his daughters accusations. Instead, he told her they could work it out, that it was a good thing she had not told anyone because it was between him and her, her accusations could get him into a lot of trouble with his wife, family and possibly the law, and that he was wrong and could not be "sorrier." Defendant said it seemed that she was "curious," and he reacted to her conduct, and that any time she was uncomfortable "say the word," but talking to him on the telephone was not how to say the word. Defendant asked his daughter to disclose her location so that he could pick her up, and he asked her to come home so they could "come up with something." Defendants daughter refused to come home and continued to ask for permission to stay the night at a friends home. Defendant agreed to allow his daughter to stay at a friends home even though he did not know the location. At the end of the conversation, defendant asked his daughter not to do anything that was going to "wreck" things; he was "so sorry," he should not have put her in this position, it would not happen again, and he would not have "those feelings" ever again.
Based upon the interview with defendants daughter and the taped pretext telephone call, on the same day, Detective Alexander prepared an application for a search warrant for defendants home, a sworn statement of probable cause, and an appendix of items to be seized labeled Appendix A. The sworn statement of probable cause and Appendix A were attached to the warrant when it was signed by Hon. Richard O. Keller.
The form search warrant and affidavit stated that "on the basis of the information contained within this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause, [Detective Alexander] has probable cause to believe and does believe that the property described below is lawfully seizeable." The warrant authorized a search for property "used as the means of committing a felony," "possessed by a person with the intent to use it as means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery," and "tends to show that a felony has been committed or that a particular person has committed a felony." The warrant also allowed a night time search "for the following property: See Appendix A." Appendix A was a boilerplate appendix of items to be seized that was used for investigations of sex crimes by the police department. The boilerplate appendix allowed for the seizure of items that generally related to child pornography cases, but also specified "[s]exual aids including, but not limited to, dildos, vibrators, lubricating or stimulating lotions, bondage equipment, and other items used in practicing sexual conduct," and "[a]rticles of personal property tending to establish the identity of persons having dominion and control over the premises. . . ." Detective Alexander conceded Appendix A was deficient in that it did not specifically list the towel because he "forgot to type it in."
Detective Alexanders sworn statement of probable cause included the details concerning the crime learned from his interview with defendants daughter and the pretext telephone call. In the statement, Detective Alexander asserted that, "Evidence at the residence in question could further help to prove the victims allegations. Among the items to be sought specifically are the white bottle of Coco [sic] Butter lotion and the baseball theme towel" used by defendant during the last reported incident. Night service of the warrant was requested because the pretext telephone call might cause defendant to discard the lotion bottle and launder or discard the towel that might contain his semen.
After the search warrant was signed, Detective Alexander had a meeting regarding the search with several officers including crime scene investigator Detective Kenneth Butch Miller. Detective Alexander told the other officers that the case involved the sexual assault of a young girl in her bedroom and that the items to be seized included a cocoa butter lotion bottle that might be found in a lower drawer of a nightstand in the girls bedroom and a baseball motif towel that might not yet have been laundered. The officers were also told to look for biological material that might corroborate the sexual assault allegations.
Within a half hour of the briefing, Detectives Alexander and Miller, and several other officers went to defendants home. Detective Alexander and two officers went to the front door, while the other officers remained out of sight. Detective Alexander had in his bag both the search warrant and an arrest warrant for defendant.
Defendants wife opened the door, and the officers announced they were there "for a search warrant." Defendant was also present in the house. At the time the officers entered the house, Detective Alexander did not hand either defendant or his wife a copy of the search warrant and the incorporated documents. Nor did Detective Alexander tell defendant that he had an arrest warrant for him.
Within minutes of entry into the house, Detective Alexander and defendant left the house and talked on the porch or front area of the house. Other officers including Detective Miller entered the house. Detective Miller did not recall having a copy of the search warrant with him when he was in the house.
Detective Miller searched only the bedroom of defendants daughter and the laundry room, photographing each room as he entered it. He then used special eyeglasses and an artificial light source known as a poly light to view the rooms to detect any biological evidence such as stains of bodily fluids including semen. Detective Miller found the lotion bottle that matched the description given by defendants daughter in the drawer in the nightstand in the bedroom. He also took a bedspread and a pillow case found in the bedroom for testing at the crime laboratory to determine the presence of biological evidence. After viewing the items with special eyeglasses and the poly light, he believed, based upon his training and experience, that those items might contain biological evidence related to the alleged crime. When Detective Miller did not find a baseball theme towel in the bedroom, he went to the laundry room because he was aware that there was a possibility that the towel might not have been laundered yet. In the laundry room, he saw a baseball theme towel lying on top of an open laundry basket. The towel was taken because it matched the description given by defendants daughter. At the police station, Detective Miller used the poly light to examine the towel.
At the end of the search and before leaving the house, a police officer handed defendants wife a copy of the first two pages of the search warrant and an inventory of the items taken from the house. The copy of the warrant did not include Detective Alexanders sworn statement of probable cause or Appendix A.
The trial court upheld the seizure of the lotion bottle and the baseball motif towel on the grounds that if the warrant incorporated by reference the affidavit of probable cause and the appendix, it was obvious that Judge Keller intended to allow the officers to search the house for the lotion bottle and towel. The court also denied suppression of the bedspread and the pillow case on the grounds that Detective Millers use of special glasses and the poly light fell within the scope of the search warrant authorizing the seizure of evidence in an alleged child molestation case, the inspection was limited to the bedroom in which the molestation allegedly took place and the laundry room, and the search was not "very" or "unduly" intrusive.
Although the prosecutors written opposition indicates that a piece of carpet was also taken from the bedroom of defendants daughter, no evidence was submitted by either party regarding that seizure, and defendant did not ask the court to rule on the admissibility of that evidence separate from his contention that all of the evidence taken from the house should be suppressed because the warrant was invalid on its face.
After defendant was arrested, Detective Alexander took a saliva sample from defendants mouth. The court denied defendants motion to suppress the saliva sample on the grounds that defendant had not been coerced into giving the sample, and the sample would be admissible under the inevitable discovery rule. Because defendant does not challenge the courts ruling, we do not address it.
DISCUSSION
Defendant challenges the trial courts suppression ruling on the grounds the warrant documents did not sufficiently comply with the Fourth Amendments particularity requirement, execution of the warrant required suppression of the evidence seized by Detective Miller, and the good faith exception to the exclusionary rule does not apply. We conclude defendants contentions are unavailing.
A. Warrant Documents Were Sufficient to Comply with Fourth Amendments Particularity Requirement and Execution of Warrant Does Not Require Suppression
"Pursuant to California Constitution, article I, section 28, subdivision (d), our review of issues related to the suppression of evidence derived from police searches and seizures is governed by federal constitutional standards. [Citations.] The warrant clause of the Fourth Amendment expressly provides that no warrant may issue except those `particularly describing the place to be searched, and the persons or things to be seized. [Citations.] `General warrants, of course, are prohibited by the Fourth Amendment. "(T)he problem (posed by the general warrant) is not that of intrusion per se, but of a general, exploratory rummaging in a persons belongings. . . . (The Fourth Amendment addresses the problem) by requiring a `particular description of the things to be seized." [Citation.] [Citation.] The [United States Supreme Court] also has recognized, however, that in a complex case resting upon the piecing together of `many bits of evidence, the warrant properly may be more generalized than would be the case in a more simplified case resting upon more direct evidence. [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1291 (Bradford).) "Whether the description in a warrant of property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court." (People v. Kraft (2000) 23 Cal.4th 978, 1041.)
In determining the validity of the search warrant in this case, we conclude that the Fourth Amendments requirement that the warrant describe with particularity the items to be seized during the search was met by the warrants incorporation of Detective Alexanders sworn statement of probable cause and Appendix A. The United States Supreme Court has not held that the Fourth Amendments particularity requirement prohibits a warrant from cross-referencing other documents. (Baranski v. U.S. (8th Cir. 2008) 515 F.3d 857, 860.) As explained by the court in Groh v. Ramirez (2004) 540 U.S. 551 (Groh), "We do not say that the Fourth Amendment prohibits a warrant from cross-referencing other documents. Indeed, most [federal] Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant." (Id. at pp. 557-558.) The Groh Court did not "further explore the matter of incorporation," because in that case the form search warrant failed to list the items to be seized and it did not incorporate by reference or have attached either the application for the warrant (which listed the items sought) or the affidavit showing probable cause (which was sealed). (Ibid.) Unlike the situation in Groh and People v. MacAvoy (1984) 162 Cal.App.3d 746, 758, cited by defendant, in this case suitable words of reference were used in the search warrant to incorporate Detective Alexanders sworn statement of probable cause and Appendix A. Nor does defendant contend that the incorporated documents attached to the warrant were not present at the time Judge Keller considered and signed the warrant. Thus, the search warrant and its incorporated documents pass constitutional muster.
Defendant alternatively argues that the Fourth Amendments particularity requirement was violated because Detective Miller, the executing officer, did not have a copy of the warrant documents in his possession at the time of the search and defendants wife was given a copy of the warrant without its incorporated documents. We conclude that even assuming the validity of defendants contentions, any error in the execution of the warrant does not require suppression of the seized evidence.
Relying on People v. MacAvoy, supra, 162 Cal.App.3d at p. 758, defendant argues that the Fourth Amendments particularity requirement was violated because the executing officer did not have a copy of the warrant and its incorporated documents on his person at the time of the search. However, " `Nothing in the language of the Constitution or in [the United States Supreme] Courts decisions interpreting that language suggests that, in addition to the [requirements set forth in the [Fourth Amendment]], search warrants also must include a specification of the precise manner in which they are to be executed. [Citations.]" (United States v. Grubbs (2006) 547 U.S. 90, 98 (Grubbs).) Even assuming the executing officer is required to have a copy of the warrant documents in his possession at the time of the search, his failure to do so "does not implicate the seizure of the evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized." (U.S. v. Hector (9th Cir. 2007) 474 F.3d 1150, 1155 (Hector).)
We also reject defendants contention that the Fourth Amendments particularity requirement was violated because at the time of the search defendants wife was given a copy of the search warrant without its incorporated documents. "The United States Supreme Court has not interpreted the Fourth Amendment to the United States Constitution as requiring the officer executing the search warrant to display the warrant" at the time of the search. (People v. Calabrese (2002) 101 Cal.App.4th 79, 84.) Indeed, in Grubbs, the United States Supreme Court explicitly held that the Fourth Amendment does not impose a requirement "that the executing officer must present the property owner with a copy of the warrant before conducting his search." (Grubbs, supra, 547 U.S. at pp. 98-99.) As explained by the court in Grubbs: " `The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is . . . evidence that the requirement of particular description does not protect an interest in monitoring searches. [Citation.] The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the `deliberate, impartial judgment of a judicial officer . . . between the citizen and the police, (citation), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages." (Id. at p. 99.)
Defendants reliance on Ninth Circuit precedent is misplaced. The Ninth Circuit has acknowledged that when a search warrant is issued by a California court and executed by California police officers, "there is no statutory or constitutional requirement that a search warrant be exhibited as a prerequisite to execute it." (U.S. v. Silva (9th Cir. 2001) 247 F.3d 1051, 1058, fn. 4, distinguishing United States v. McGrew (9th Cir. 1997) 122 F. 3d 847.) In Hector, supra, 474 F.3d 1150, the Ninth Circuit noted it was not sure if Grubbs, supra, 547 U.S. 90, overruled its precedent that the Fourth Amendment was violated if the executing officer failed to hand a copy of the warrant to the property owner at the time of the search. (Hector, supra, 474 F.3d at p. 1154.) However, the Hector court acknowledged that since Grubbs, supra, 547 U.S. 90, "the only legitimate interest" for handing the warrant to the property owner " `is to head off breaches of the peace by dispelling any suspicion that the search is legitimate. . . . [And] [t]his interest does not implicate the seizure of evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized." (Hector, supra, 474 F.3d at p. 1155.)
Defendant also argues that the items seized should be suppressed because they were not described in the warrant documents. However, we agree with the trial court that the lotion bottle and baseball theme towel were properly seized pursuant to the warrant documents. Detective Alexanders sworn statement of probable cause specifically sought permission to recover evidence at the residence to prove the sexual abuse allegations against defendant, and included illustrative descriptions of such evidence, such as "the white bottle of Coco [sic] Butter lotion and the baseball theme towel that [defendant] used to ejaculate in." That the warrant documents did not specifically mention the bedspread and pillow case does not require suppression of those items. The warrant granted permission to search for property that would support the allegations of sexual abuse against defendant, and for evidence that a particular person had committed a felony. It is common knowledge that a room in which a person has engaged in sexual conduct may contain items stained with biological fluids (semen, blood, and saliva) that can be recovered and then analyzed to determine the persons identification through DNA testing. Based upon the description of the latest abuse incident, and after scanning the bedding using special glasses and a poly light, it became "immediately apparent" to Detective Miller that the bedding might contain biological evidence of defendants sexual conduct. (Bradford, supra, 15 Cal.4th at p. 1295.) Consequently, we conclude that Detective Millers seizure of the bedspread and pillow case was within the scope of the warrant.
Defendants argument that the seizure of the carpet fell outside the scope of the warrant is not properly before us. The failure to mention the carpet in the warrant documents does not necessarily require suppression as a matter of law. (See generally Bradford, supra, 15 Cal.4th at pp. 1294-1296.) Because defendant did not ask the court to rule on whether the seizure of the carpet fell within the scope of the warrant, that issue is not before us.
Nor were the warrant documents required to specify that the police could use special glasses and a poly light in searching the home for biological evidence. As noted, there is no constitutional requirement that search warrants "include a specification of the precise manner in which they are to be executed." (Grubbs, supra, 547 U.S. at p. 98.) As recognized by the trial court, Detective Millers use of special glasses and the poly light in this case was analogous to the use of a flashlight or other "artificial means to illuminate a darkened area," which "simply does not constitute a search, and thus triggers no Fourth Amendment protection." (Texas v. Brown (1983) 460 U.S. 730, 740, fn. omitted [use of flashlight].) Nor were defendants privacy rights invaded by Detective Millers use of equipment to scan the bedding in plain view. (Id. at p. 741.)
B. Good Faith Exception to Exclusionary Rule Applies in this Case
Even assuming that the warrant and the incorporated documents did not meet the particularity requirement of the Fourth Amendment, we conclude that the good faith exception to the exclusionary rule applies, thereby precluding suppression of the challenged evidence.
"`[O]ur-good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of `all of the circumstances." (Herring v. U.S. (2009) 555 U.S. ___, 129 S. Ct. 695 [2009 U.S. Lexis 581 at p. *19 (Herring), quoting United States v. Leon (1984) 468 U.S. 897, 922, fn. 23 (Leon).) " `[E]vidence should be suppressed "only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."" (Herring, supra, 2009 U.S. Lexis 581 at p. *14.)
Citing to Groh, supra, 540 U.S. 551, defendant argues that the good faith exception does not apply in this case because the officers did not have in their possession a warrant particularly describing the things to be seized, and therefore, proceeding with the search was clearly "unreasonable" under the Fourth Amendment. However, defendants reliance on Groh is misplaced because in that case "even a cursory reading of the warrant . . . — perhaps just a simple glance &# 8722; would have revealed a glaring deficiency [in the description of the items to be seized] that any reasonable police officer would have known was constitutionally fatal." (Id. at p. 564.)
In this case, nothing in the warrant and its incorporated documents would have indicated to the officers that there was a failure to meet the particularity requirement of the Fourth Amendment. "[I]t seems settled that the mere fact that there is on the face of a warrant some error, omission or ambiguity, is not sufficient to defeat the validity of the warrant. The cases seem generally agreed that reference may be made to the underlying affidavit when the warrant carries some defect upon its face." (People v. Moore (1973) 31 Cal.App.3d 919, 927.) Additionally, Detective Miller acted "in objectively reasonable reliance" (Leon, supra, 468 U.S. at p. 922) on the search warrant and the incorporated documents in that he "searched only those places and for those objects that it was reasonable to believe were covered by the warrant." (Id. at p. 918, fn. 19.)
"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in [the United States Supreme Court] cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Herring, supra, 2009 U.S. Lexis 581 at p. *17.) Any error in the warrant documents prepared by Detective Alexander regarding the description of the items to be seized during the search "was not so objectively culpable as to require exclusion" of the lotion bottle, towel, bedspread and pillow case taken from defendants home. (Id. at p. *19.)
DISPOSITION
The judgment is affirmed.
We concur:
Pollak, Acting P. J.
Siggins, J.