People v. MacAvoy

Page 34

209 Cal.Rptr. 34

162 Cal.App.3d 746

PEOPLE of the State of California, Plaintiff and Respondent, v. Neil David MACAVOY, Defendant and Appellant.

A024254.

Court of Appeal, First District, Division 2, California.

Dec. 17, 1984.

John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Thomas J. Nolan, Andrew H. Parnes, Nolan & Parnes, Palo Alto, Charles C. Marson, Remcho, Johansen & Purcell, San Francisco, for defendant and appellant.

KLINE, Presiding Justice.

Neil David Macavoy appeals from the judgment of conviction entered after he pled guilty to possession of concentrated cannabis and possession of cocaine for sale. (Health & Saf.Code, §§ 11357, subd. (a), 11351.) Appellant was placed on three years probation, conditioned on his serving 50 days in county jail, devoting 200 hours to community service work, and paying a fine.

The issues on appeal concern the search of appellant's room in a fraternity house located on the Stanford University campus. Appellant contends that the warrant authorizing the search did not adequately describe the place to be searched, and that the police did not comply with the California "knock-notice" requirement in executing the warrant. Although we conclude that the warrant is defective in that it failed to adequately describe the place to be searched, we find the evidence seized pursuant to the warrant was nonetheless admissible under the "good faith" exception recently articulated by the United States Supreme Court in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard (1984) 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737. We therefore affirm the judgment of the trial court.

FACTS

In September of 1982 ¹ a customs inspector and his trained canine assistant were inspecting foreign parcels which had arrived at San Francisco International Airport. The dog "reacted" to a small package addressed to Neil MacAvoy, Alpha Delta Phi, 375 Campus Dr., Stanford, California, and sent by one Keith Godchaux from the People's Republic of China. Subsequent testing of the contents of the package indicated it contained hashish. Thereafter, postal authorities contacted the Department of Public Safety at Stanford to arrange for a controlled delivery of the package.

Before the controlled delivery was made, Detective Iran White of the Stanford Department of Public Safety secured a search warrant which described the place to be searched as "the premises consisting of a two-story, multi room structure located on the north side of Campus Drive, Stanford, California. The main entrance of the building faces south. The building is of stucco construction and the exterior is painted off-white. The structure has a red tile roof and there are large letters identifying the premises as Alpha Delta Phi, each letter approximately 18"' to 24"' in height. [L]ocated at 375 Campus Drive, Stanford, County of Santa Clara, State of California."

Detective White's affidavit in support of the search warrant essentially related the discovery of the contraband and the intent to carry out a controlled delivery of the package. The affidavit made it clear that the package had been mailed to Neil MacAvoy. Attached as an exhibit to the affidavit was a Stanford Department of Safety "Felony Incident Report," which also related the discovery of the contraband and the intent to carry out a controlled delivery. The report listed the "suspect/arrestee" as Neil David MacAvoy and gave his address as 375 Campus Drive, Stanford, CA. Appended to the report was a typewritten note from Officer Raoul Niemeyer of the Stanford Department of Public Safety indicating that he had learned from the facilities manager that David MacAvoy was assigned to room # 112 and that his investigation was continuing.

On October 6, 1982, a postal inspector delivered the package to appellant at the fraternity house. The next day, Officer White, who was assisted by Deputy David Weidler of the Santa Clara County Sheriff's office and several other officers, executed the warrant. After entering the fraternity, Officers White and Weidler went directly to appellant's room (# 112) where they demanded entry after announcing they were police officers in possession of a search warrant. Appellant's room was then searched and small amounts of hashish, marijuana, cocaine, and a scale were seized. There was no evidence that any of the officers searched any part of the fraternity house other than appellant's room.

Appellant's motions to suppress evidence (Pen.Code, § 1538.5) and to set aside the information (Pen.Code, § 995) were denied. Subsequently, appellant pled guilty to one count of possession of concentrated cannibis and one count of possession of cocaine for sale. This appeal followed.

DISCUSSION

I

A. The search warrant was void on its face because it failed to adequately describe the place to be searched.

Appellant contends the search warrant was void because it did not meet the Fourth Amendment's requirement that the place to be searched be described with particularity because it authorized a search of the entire fraternity, even though probable cause existed only to search appellant's room. Initially, we note the parties entered into a stipulation that the approximately 50 residents of the fraternity house are assigned rooms by the University and are issued keys to their individual rooms. Thus, for the purposes of our analysis, the fraternity house is essentially a multi-unit structure with certain common areas shared by all residents.

Both the United States Constitution and the Constitution and statutory law of California require that a search warrant describe with particularity the place to be searched. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; Pen.Code, § 1525.) Whether this requirement is met is a question of law on which an appellate court makes an independent judgment. (See Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 108, 138 Cal.Rptr. 603.) As a general rule, the requirement is satisfied if "the officer conducting the search 'can with reasonable effort ascertain and identify the place intended.' " (People v. Dumas (1973) 9 Cal.3d 871, 880, 109 Cal.Rptr. 304, 512 P.2d 1208, quoting Steele v. United States (1925) 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757; see also People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, 222, 161 Cal.Rptr. 547; People v. Estrada (1965) 234 Cal.App.2d 136, 146, 44 Cal.Rptr. 165.)

As stated by then Presiding Justice Sullivan in People v. Estrada, supra, "the requirement of the Fourth Amendment that a particular 'place' be described in the warrant when applicable to dwellings means a single living unit, that is to say the residence of one person or family, and a warrant describing an entire building issued on probable cause for searching only one apartment therein is void. [Citations.] Accordingly when a warrant directs a search of a multiple occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand." (234 Cal.App.2d at p. 146, 44 Cal.Rptr. 165.) After analyzing pertinent federal authorities, Justice Sullivan distilled the following rule for testing the specificity of a search warrant directed to premises with multiple occupants: "If the description in the warrant limits the search to a particular part of the premises either by a designation of the area or other physical characteristics of such part or by a designation of its occupants, the business conducted there, or otherwise so that the officer executing the warrant can with reasonable effort identify the place to be searched, the warrant will meet Fourth Amendment requirements in respect to the description of the place to be searched. In our opinion if measured by the same test it will also meet the corresponding California constitutional and statutory requirements." (Id., at p. 148, 44 Cal.Rptr. 165.)

The People do not claim probable cause existed for searching every room in the fraternity; nor do they argue that there were grounds for believing that the "entire building is a single living unit." (Id., at p. 146, 44 Cal.Rptr. 165.) It is thus clear that the description on the face of the warrant was inadequate to meet the Fourth Amendment particularity requirement. Although the warrant accurately describes the Alpha Delta Phi fraternity, it fails to restrict the search to room 112 or the residence of Neil MacAvoy. On its face, the warrant would allow the officers to search every part of the fraternity house; since probable cause existed to search appellant's room only, the warrant, as a general rule, is void. (United States v. Votteller (6th Cir.1976) 544 F.2d 1355, 1363; United States v. Parmenter (Mass.1982) 531 F.Supp. 975, 978; People v. Estrada, supra, 234 Cal.App.2d at 146, 44 Cal.Rptr. 165.)

B. The defect on the face of the warrant cannot be cured by reference to the underlying affidavit.

Although the People essentially concede that the warrant is defective on its face, they maintain that this defect is cured by reference to the underlying affidavit, which they claim does adequately describe the place to be searched. As explained in United States v. Parmenter, supra, "[o]ver the years the courts have recognized certain exceptions and qualifications to the general rule that a warrant which fails to specify the particular sub-unit to be searched within a multiple occupancy structure is void." (531 F.Supp. at 979.) The "qualification" which the People rely on in the present case is that a "deficiency of description contained in the warrant can be cured by reference to its supporting affidavit ...." (Id., at 980.)

There is a fundamental distinction, however, between a warrant and the underlying affidavit, and...