People v. Superior Court

Opinion

LOW, P. J. The first clause of Penal Code section 1540 requires that property seized under a search warrant be returned if it appears that the [901]property “is not the same as that described in the warrant.”1 The question before us in this writ proceeding is whether a broad description of “drug paraphernalia” in a search warrant must be deemed limited by stricter statutory and judicial definitions. We hold that for this narrow purpose the language of the warrant itself, unaffected by external definitions, controls.

Law enforcement officials in San Jose undertook to enforce new California statutes aimed at furnishers and sellers of drug paraphernalia: Health and Safety Code sections 11014.5 and 11364.7, enacted by Statutes 1982, chapter 1278, sections 1 and 2, effective January 1, 1983.2 (Cf. Note (1983) 14 Pacific L.J. 537, 541-542.) They obtained search warrants for three business establishments. From the warrant affidavit it is apparent that the places were suspected of being what are colloquially known as “head shops.” The warrants recited that there was probable cause to believe that described property “is possessed . . . with the intent to use it as a means of committing ... a violation of . . . Section 11364.7” and in relevant part described the property to be found and seized as follows: “1. Drug paraphernalia used to convert, prepare, store, conceal, ingest, inhale, or otherwise introduce cocaine into the human body, including, but not limited to, kits intended or designed for use in converting, processing or preparing controlled substances (particularly cocaine), containers, spoons, and other devices intended for or designed for use in ingesting controlled substances (particularly cocaine), chamber pipes and carburator [szc] pipes . . . .”

With these search warrants, police seized a large number of items from the three business establishments. Many of the items, for example, baggies, pipes, and bottles, would be innocuous in the abstract, but taken together, the listed items would be recognizable to an experienced narcotics officer as accessories commonly associated with drug traffic and use.

[902]Several individuals were then accused by misdemeanor complaint of violations of Health and Safety Code section 11364.7. Owners of the three business establishments moved in municipal court for return of the seized materials, relying on the first clause of Penal Code section 1540. After several hearings, the municipal court granted the motion as to all but a few items. Respondent superior court denied the People’s writ petition. The People then petitioned this court for a writ of mandate. (Cf. Code Civ. Proc., § 904.1, subd. (a).)