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1GROVER

L. PORTER (SBN 94707) Law Offices of Grover Porter 355 North Sierra Way San Bernardino, CA 92410 (909) 884-0586 (Office) Attorney for Claimant JEFFREY WATTS SUPERIOR COURT OF STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO, VICTORVILLE JUDICIAL DISTRICT

JEFFREY WATTS, Claimant, vs.

CASE NUMBER: 1 NOTICE OF MOTION AND MOTION FOR RETURN OF SEIZED PROPERTY, TO WIT, APPROXIMATELY $160,000 IN U.S. CURRENCY (USD), MISCELLANEOUS FOREIGN CURRENCY OF AN UNDETERMINED AMOUNT, AND A WOMANS RING, DECLARATION OF GROVER PORTER, MEMORANDUM OF POINTS AND AUTHORITIES (PENAL CODE SECTIONS 1536, 1539 AND 1540.)

THE PEOPLE OF THE STATE OF CALIFORNIA, The District Attorney of San Bernardino County, and San Bernardino Sheriffs Department, Respondents.

February __, 2009 TIME: 8:30 a.m. PLACE: DEPT. V6 1TO THE HONORABLE ANNEMARIE G. PACE, AND TO DISTRICT

ATTORNEY OF SAN BERNARDINO COUNTY, MR. MICHAEL A. RAMOS, AND TO HIS AUTHORIZED REPRESENTATIVE, DEPUTY DISTRICT ATTORNEY, MS.

KATHLEEN DONATO:

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PLEASE TAKE NOTICE that on February ___, 2009, or as soon thereafter as counsel may be heard in the courtroom of

Department V6 of the above-entitled court, the claimant, JEFFRY WATTS, through his attorney, Mr. GROVER L. PORTER, Esq., will move for an order the directing of the the San Bernardino Attorney Sheriffs of San

Department,

office

District

Bernardino County, and their respective agents, to release to claimant, Mr. JEFFREY WATTS, the following property: all cash money, whether U.S. Currency, in the approximate amount of

$160,000, miscellaneous foreign currency, and a womans ring valued at $12,000.00, all of which were seized from MR. WATTS residence by virtue of a search warrant signed on April 24, 2008 by the Hon. ANNEMARIE G. PACE of the above-entitled court. The aforementioned search John warrant Ramos directed (# R2422) law and enforcement B. Powers

officers

(Detectives

(#P2295) of the San Bernardino Sheriffs Department) to seize certain items at Mr. Jeffrey Watts residence located at 14171 Wells Fargo, Hesperia, California, on April 24 and 29, 2008, all of which occurred during the course of an investigation of a criminal matter, to wit, lewd conduct with a child and rape in concert. Criminal charges have not yet been filed as a

result of the lewd conduct with a child investigation; however, the aforementioned property seized still continues to be

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retained

by

either

the

San

Bernardino

Sheriffs

Department

and/or the District Attorney of San Bernardino County. The motion will be made on the grounds that the

aforementioned property seized was outside the warrants scope, authorization, terms and particulars in violation of the Fourth Amendment, the property seized -- the money and the womans ring were not stolen nor embezzled and rightfully belongs to Mr. JEFFREY WATTS, nor was the money or jewelry seized at all relevant or probative to any material issues extent in the

instant child molestation investigation of MR. WATTS. The motion will be based upon this notice of motion, the attached declaration, served and on the memorandum the of points and

authorities

filed

herewith,

police

reports,

testimony at the hearing on this motion, on such supplemental memoranda and points and authorities as may be filed hereafter with the court, and on such oral argument as may be presented at the hearing on this motion. Dated this 29th day of January 2009 GROVER L. PORTER Attorney for Claimant JEFFREY WATTS

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DECLARATION OF GROVER L. PORTER IN SUPPORT OF MOTION TO RETURN PROPERTY BY CLAIMANT MR. JEFFREY WATTS I, the undersigned, Grover L. Porter, declare:

1. I am an attorney licensed to practice courts law in before the and to Watts, I all the of been Mr.

State have

California retained Jeffrey and

represent the

petitioner as his

claimant

herein

attorney in this matter. 2. I have received a copy of a Search Warrant authorizing law enforcement Bernardino officers County, of to San wit,

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Detective John Ramos and other deputies, to search Mr. Watts premises located at 14171 Wells Fargo, Hesperia, California, a copy of which is attached

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hereto and made a part of this declaration Exhibit A. I and am motion informed as and

believe that the search warrant identified in Exhibit A was

signed by the Hon. Annemarie G. Pace of the above-entitled

court on April 24, 2008. 3. I am also in receipt and in possession of a copy of search warrant receipt/return for the aforesaid warrant that is

attached hereto and made a part of this declaration and motion

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as Exhibit B. 4. I that am informed based with Watts, Deputy and believe, my client, the

upon my

conversations Mr. Jeffrey

with

assigned

District

Attorney, Ms. Kathleen Donato, and my review of the search as

warrant

attached

hereto

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Exhibit A, that the aforesaid search find warrant and to of was issued to

seize an

evidence alleged Code

relating violation

Penal

sections 288(a) and 264.1 which allegedly Watts occurred Hesperia in Mr.

residence,

located at 14171 Wells Fargo, Hesperia, California, 5. On page 2 of the search as

warrant,

attached

hereto

Exhibit A, the property to be seized at Mr. Watts residence

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was described as follows: PROPERTY TO BE SEIZED 1) Articles of personal property which will identify the person or persons in control of the premises and/or areas where the above-named items may be found, including keys to those areas that may be locked, and documents or papers bearing the name(s) and the address to be searched, such as rent receipts, utility bills, cancelled mail, pay-check

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3)

stubs or other employment records, tax documents, and/or personal identification. 2) Any and al sex toys (dildos, vibrators, strapons), and lingerie as described by the Victim. Computers, computer systems, computer programs, computer software, computer hardware, telephonic equipment including central processing units, external storage units, keyboards AND keyboard devices, monitor screens and video display units, floppy disks or magnetic tapes, hard disk drives/unites or cassette tapes/units, acoustic couplers, modems or data sets, telephone sets to include cellular telephones sets and power adapters, telephonic components, beepers, pagers, computer chips/related circuitry dialing apparatus and connecting equipment, cellular telephone interface equipment, cables, electronic serial number readers, program instructions, software manuals, statements, flow charts and recorded written data related to obtaining access, use or the access codes as well as the contents or memory data itself which may be contained in or through the aforementioned soft and hardware, any other similarly purposed devices or materials for such communication data processing utilizing the elements of a control unit and arithmetic/logic of primary memory, and input/output devices to include EPROM readers/burners; and any and all tools, equipment and materials necessary to assemble the aforementioned hardware and/or software. And if you find any part thereof, bring it forthwith before me at my courtroom. 6. After service of the search warrant on April 24, 2008, at

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Mr.

Watts

residence, believe,

am and

informed

and

thereon allege, that Detective John Ramos submitted an

addendum to the search warrant requesting judicial

authorization for a subsequent search of Mr. Watts Hesperia residence. ADDENDUM SUPPORT The OF (See TO Exhibit AFFIDAVIT SEARCH to A, IN

WARRANT.) the search

addendum

warrant in relevant part states as follows.

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PROBABLE CAUSE After serving a Search Warrant by the Honorable Pace, dated 04/24/2008, at the address of 14171 Wells Fargo, in Hesperia, CA 92345. Immediately following the initial service of this warrant, additional research revealed the necessity to return to the residence to recover additional evidence. During the initial service, multiple video storage devices (TiVo/Digital Video Recorders) were observed inside the family room equipment rack amongst numerous computer devices. They were initially believed to be for viewing of public television services. Following the initial service, I spoke with Detective Rose from the Sheriffs Hi-Tech Crime Detail. Detective Rose informed me that the TiVo devices

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can import, record, and even host video and audio data, and can transfer such data over network connections. As such, I believe these devices may also contain potential incriminating evidence of this and/or other similar crimes. [Par.] I also spoke with Sergeant Boldt from the Crimes Against Children Detail, who explained the importance of recovering biological evidence from the scene where sexual assaults occurred. The victim stated her sexual assaults happened in the master bedroom. Recovering the bedding from the master bedroom is essential to process for biological evidence of the sexual assault. Child molesters typically engaged in sexual activities with multiple victims, which leads to believe that other victims may have been sexually assaulted inside the residence. Other bedrooms are to be search (sic) for evidentiary items to discover unreported child molestations. Personnel of the Sheriffs Scientific Crime Lab will process the bedding items for biological evidence off-site. ADDITIONAL PROPERTY TO PROCESSED/ANYLIZED (SIC) 1) All TiVos the residence. and networking BE SEIZED AND inside

equipment

2) All bedding items from the bedrooms which may contain evidence of biological evidence of sexual assault. 7. I and am informed and believe that on

thereon

allege

04/29/08, numerous TiVo Direct TV DVRs were found and seized from Mr. Watts (See Hesperia B,

residence. Search

Exhibit

Warrant

Receipt,

dated

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04/29/08).) CD/DVD disks

Additionally and

numerous

bedding articles were found and seized. (See Exhibit B.)

Additionally fireworks, computers desktop and

numerous and laptop items

related

were found and seized from the residence. (See Exhibit B.)

8. The last page of the search warrant Exhibit receipt B) (marked that as the

reflects

deputies also found and seized

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under U.S.

Item

#13

150,000 in

in

Currency

Lockbox

(white); under Item #14 Misc. Foreign Currency, which was

also found and seized on April 29, 2008 from Mr. Watts

Hesperia residence. 9. I from am informed and believe Mr.

conversation

with

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Jeffrey ring

Watts

that to

a Mr.

womans Watts

belonging

second wife was also taken from his premises of valued in and the that was

amount

$12,000 U.S. from

additional also taken

currency Mr.

Watts

Hesperia premises in the amount of $10,000 from his laptop bag. 10. believe I am also informed and from conversation and

interviews with Mr. Watts that he is a well known, successful and legitimate businessman in

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the San Bernardino County area, and, that he had previously

received a large amount of cash from the sale of his stock in a corporation Networks, named in Universal the latter

Inc.

part of 2007. former owner major of

Mr. Watts was a shareholder and

Universal

Networks,

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Inc., and the cash found in his residence were the proceeds of his sale of stock and earnings from Inc., the Universal he to an Network and the

which up

owned until

operated

latter part of 2007. 11. I am not aware of any from of the the sum and

allegation substance

criminal

investigation of Mr. Watts for lewd conduct and child

molestation that he was engaged in other kind of criminal

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conduct, such as illegal drug dealing, money laundering, or

receiving stolen property, such that it can be inferred that

the large sums of cash found in his home came from an illegal source. I am informed and

believe and thereon allege that that the moneys found and

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seized in Mr. Watts home by the sheriffs deputies on April 24 and 29, 2008, legitimately

belonged to Mr. Jeffrey Watts alone and no one else as the law presumes under Evidence

Sections 637 and 638. 12. from a Further, it is apparent perusal of the and search the

warrant search including

affidavit warrant the

itself,

aforementioned

addendum to the search warrant, that that seizure of the moneys

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and womans ring found in Mr. Watts home cannot be justified under the warrant since and these in its

particulars

items

were not mentioned as items to be seized by the investigating sheriffs deputies. Hence, the seizure of the moneys and the ring from Mr. Watts home

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cannot be in any way justified under the particulars of the

search warrant issued in this case as will be demonstrated in the attached and points from and the

authorities

reading of the attached search warrant itself. 13. For these reasons, and

pursuant to Penal Code sections 1536, Due 1539 and 1540, and of the the (Art. is

Process

Clause

California I, Sec.

Constitution 15), to all Mr. the the

Watts

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entitled return the of

immediate moneys from and his

ring

seized

residence on April 24 and 29, 2008, because their seizure was not within the particulars of the search warrant and because they cannot have any possible relevance to the criminal

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investigation that prompted the issuance of the search warrant in the first place. 14. Further, I am informed

and believe and thereon allege that the moneys and ring seized from April virtue search Mr. 24 of Watts and the residence 29, 2008, on by

aforementioned are still

warrant,

presently in the possession of the San Bernardino County

Sheriffs Department and/or the District Attorneys Office of

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San Bernardino County. 15. Watts The now claimant demands court the Jeffrey this the

that order

honorable return items Currency of

aforementioned the U.S.

seized in

the

approximate

amount of $160,000, the foreign currency of an undetermined

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amount, and the womans ring to Mr. Jeffrey Watts or to the undersigned as his attorney

pursuant to Penal Code sections 1536, 1539 and 1540 and under the Due Process Clause of the California Constitution,

Article I, section 15. I declare under penalty of perjury that the foregoing is true and correct, except as to those matters stated under

information and belief which I believe to be true and correct, under the laws of the State of California, executed on this 29th Day of January, 2009, at San Bernardino, California.

__________________________ Grover L. Porter Declarant and Attorney for Jeffrey Watts

I. MEMORANDUM OF POINTS AND AUTHORITIES A. PERSONS MAY NOT BE DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW.

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It

is

well-settled

principle

in

Anglo-American

jurisprudence that a person may not be deprived of his or her property without due process of law, nor may the Legislature expropriate (Cal. private art. property I, sec. by 15: mere legislative v. Beck enactment. (1994) 25

Const.,

People

Cal.App.4th 1095.) Indeed, in this regard, and relevant to the issues [t]he presented right to in this motion, it has been declared that possession of ones property is a

regain

substantial right which may not be dependent upon the whim and caprice of a court. . . . (Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 896.) Continued official retention of legal property with no further criminal action pending violates the owners due process rights. (People v. Superior Court (Loar) (1972) 28 Cal.App.3d 600, 614-615 [continued police retention

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of legally protected adult films would constitute a patent denial of due process]; see also City of Garden Grove v.

Superior Court (2007) 157 Cal.App.4th 355, 387; Ensoniq Corp. v. Superior Court to (1998) grant 65 Cal.App.4th 1537 [due process of

required

court

claimants

motion

for

return

intellectual acquired

property

where

circumstances

indicated

claimant (1997) 53

property

lawfully];

People v. Lamonte

Cal.App.4th 544, 549; Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 896-897 [consistent with due process

_____________________________________________________________________________ MOTION TO RETURN PROPERTY (PC SECTIONS 1536, 1539, 1540) - 17

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principles, defendant was entitled to the return of a revolver he was lawfully entitled to possess].) Other relevant well-settled legal principles relevant to

the factual and legal issues presented in the within motion are as follows. (1) The things which a person possesses are

presumed to be owned by him. (Evidence Code, section 637; see also People v. Superior Court (McGraw) (1979) 100 Cal.App.3d 154, 159; Ensoniq Corp. v. Superior Court (Dattoro) (1998) 65 Cal.App.4th 1537.) (2) Such a presumption as encoded in

Evidence Code section 637 assumes the existence of the presumed fact unless and until evidence is introduced which would

support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the

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presumption. (Evidence Code, section 604; People v. Superior Court (McGraw), supra, 100 Cal.App.3d at p. 159.) (3) A person who exercises acts of ownership over property is presumed to be the owner of it. (Evidence Code, section 638.) As will be shown at the hearing on this motion for return of property, all of the moneys found and seized from Mr. Watts home belonged to him legitimately as he is a successful

businessman and entrepreneur.

These moneys found and seized by

the sheriffs deputies in the execution of the search warrant

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were the product and earnings of Mr. Watts legitimate business activities as the former owner of Universal Networks. Further, the evidence will show that the moneys taken had a legitimate source and was not stolen or embezzled. Mr. Watts can document that the moneys found and seized from his home are the product of his earnings and profits from Universal Networks, Inc.

during the five years he owned the company. Further, as already noted, the law affords Mr. Watts a presumption that the moneys and the ring seized to from him. his home presumptively Code, sections and 637,

legitimately 638.)

belonged

(Evidence

There can be no serious question in this case that the

moneys seized by Detective Ramos and the other deputies who executed the search warrant in this case legitimately belonged to Mr. Watts and must be returned to him because such property

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can have no possible relevance to the lewd conduct with a child investigation and possible prosecution. As already mentioned, Mr. Jeffrey Watts also has a due

process right to the return of his moneys and his girlfriends ring as they were taken without lawful justification or

probable cause since the seizure of this property cannot be possibly justified under the search warrant issued in this case as they were not at all mentioned in the particulars of the search warrant as items that could be seized under the warrant.

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1

B. THE COURT HAS THE POWER TO ORDER THE RETURN OF PROPERTY LEGALLY SEIZED WHETHER OR NOT THE PROPERTY IS IN THE CUSTODY OF THE COURT UNDER PENAL CODE SECTION 1536 AND UNDER THE COURTS INHERENT POWER TO PREVENT ABUSE OF ITS PROCESSES

A court in possession of property legally seized under a search persons warrant has authority to direct its delivery to the it on a showing of ownership. Such

entitled

to

authority is within the express power conferred by Penal Code section 1536 and is further within the inherent power of the court to control and prevent the abuse of its process.

(California Criminal Defense Practice, section 23.04, page 2, par. 2; see also People v. Superior Court (1972) 28 Cal.App.3d 600, 607.)1 In 1089, Buker the v. Superior of Court (1972) 25 Cal.App.3d a court by 1085, has law

Court to

Appeal

declared

that

jurisdiction

return

property

legally

seized

enforcement authorities: The first issue is whether a court in possession of property legally seized under a search warrant has authority to direct its delivery to the persons entitled thereto, good cause being shown. Authority to release such is within the express power conferred by Pen C 1536, which provides all property taken under
Penal Code section 1536 provides: All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable.

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a search warrant is subject to the order of the court in which the offense in respect to which the property...taken is triable. Furthermore, such authority is within the scope of the inherent power of the court to control and prevent the abuse of its process. (Buker, supra, at p. 1089.) The property scope is of the courts a power is the In same when the v.

seized

without

warrant.

Gershenhorn

Superior Court, Los Angeles County (1964) 227 Cal.App.2d 361, 366, the appellate court held: But even as to property not yet offered or received in evidence we think that judicial control still exists. We are not now concerned with a private seizure, by a private individual, for some purpose of his own. We deal with property seized by a public officer, acting under the color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it. He must respond, as does any custodian, to the orders of the court for which he acted. (Ibid.; see also City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355, 366; People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [officers who seize property do so on behalf 28 of the court]; People 610 v. Superior Court of (Loar), criminal

supra,

Cal.App.3d

600,

[resolution

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proceedings did not c0onfer on the seizing officer any right to retain the property independent of and beyond that derived from the search warrant.].) In this regard, Witkin, in his treatise on California

Criminal Law has observed: Officers custody of Property. The property seized must be retained by the officer in his custody, subject to the order of the court. (P.C. 1536; see P.C. 1528(a) [warrant must command peace officer to retain property seized in his or her custody subject to court order as provided by P.C. 1536]; Williams v. Justice Court (1964) 230 C.A.2d 87, 99, 40 C.R. 724 [holding that P.C. 1528 and 1536 prevail over inconsistent language in P.C. 1523 and 1529 calling for delivery to magistrate.] (4 Witkin, Cal. Criminal Law (3d ed., 2000) Illegally Obtained Evidence, sec. 138, p. 764.) Further, as to the power and the authority of the court under Penal Code section 1536, Witkin also notes: (3) Return on Authority of Court. A court in possession of legally seized property has the authority, on being shown good cause, to direct delivery of the property to those entitled to its possession. This authority is based on the courts inherent power to control and prevent abuse of its process, and on P.C. 1536, which directs the officer seizing property under a warrant to retain it, subject to the order of (a) the court to which the officer is required to return the proceedings, or (b) any other court where the offense related to the seized property is triable. (Buker v. Superior Court (1972) 25 Cal.App.3d 1085, 1089, 102 C.R. 494 [mandamus issued to determine whether defendants were entitled to possession of $6,424 in currency seized in residence where marijuana was also found].) The fact that the

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trial has been completed or that the seized property was never introduced into evidence does not affect the courts power to entertain the motion for return either under P.C. 1536 or by exercise of its own inherent powers. (People v. Superior Court (Loar) (1972) 28 Cal.App.3d 600, 608, 104 C.R. 876.) (4 Witkin, Cal. Criminal Law (3d ed., 2000) Illegally Obtained Evidence, section 141, at pp. 766-767.) It should also be noted that the court in Avelar v.

Superior Court (1992) 7 Cal.App.4th 1270, 1276, held that if no criminal action is pending, an owners motion for return of

seized property is classified as a special proceeding, conducted under the provisions of Penal Code section 1539-1540. (Id.,

citing People v. Superior Court (Aquino) (1988) 201 Cal.App.3d 1346, 1349-1350.) Based on the foregoing, the court has the authority to

return all the moneys and ring seized from Mr. Watts home to him under Penal Code section 1536, 1539 and 1540, and, under its inherent authority to control and prevent abuse of its process. B. EVEN THOUGH THERE IS NO CRIMINAL PROSECUTION, THE OWNER OF THE PROPERTY SEIZED PURSUANT TO A SEARCH WARRANT MAY NEVERTHELESS MOVE PURSUANT TO PENAL CODE SECTIONS 1536, 1539 AND 1540 FOR THE RETURN OF THE SEIZED PROPERTY.

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In Ensoniq Corp. v. Superior Court (Dattoro), supra, 65 Cal.App.4th 1537, the court upheld Mr. Dattoros right to move to return intellectual property that had been seized pursuant to a search warrant but where there was no criminal prosecution under Penal Code sections 1536, 1539 and 1540. the Ensoniq court stated at page 1547 of In so holding, the opinion as

follows: The Penal Code provides for return or delivery of property seized under warrant. The trial court is empowered to entertain a motion for return of seized items by section 1536, as well as by the court's inherent power to control and prevent the abuse of its process. (People v. Superior Court (1972) 28 Cal. App. 3d 600, 607. . .; People v. Icenogle, supra, 164 Cal. App. 3d at p. 623.) If no criminal action is pending, an owners motion for return of seized property is classified as a special proceeding. (Avelar v. Superior Court (1992) 7 Cal. App. 4th 1270, 1276 [9 Cal. Rptr. 2d 536] [motion under 1539-1540 is a special proceeding].) A special proceeding is one which is distinct from any underlying litigation. (7 Cal. App. 4th at p. 1275.) Both criminal defendants and nondefendants may move for return of seized property because the search warrant or seizure was unlawful. A defendant may move for return of property or suppression of evidence pursuant to sections 1538.5 and 1540, on grounds that the search or seizure was illegal, or the warrant was insufficient on its face. (Buker v. Superior Court (1972) 25 Cal. App. 3d 1085, 1088 [102 Cal. Rptr. 494].) Under sections 1539-1540, a nondefendant may move for return of property on grounds that the property taken was not the same as that described in the warrant, or that there was no probable cause to believe the

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2

existence of the grounds on which the warrant was issued. (People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal. App. 3d 648, 650 [232 Cal. Rptr. 165].)2 However, only legal property may be returned to the person from whom it was taken. "[T]he People have the right to detain any property which it is unlawful to possess, and such right exists whether the property was lawfully seized or not. (People v. Superior Court (McGraw) (1979) 100 Cal. App. 3d 154, 157 [160 Cal. Rptr. 663] (hereafter, McGraw).) It is unlawful to possess property which is stolen. (Ibid.) C. THE SEIZURE OF THE MONEY AND RING WAS UNLAWFUL BECAUSE IT VIOLATED THE PERMISSIBLE SCOPE OF THE SEARCH WARRANT AND IT VIOLATED THE PARTICULARITY CLAUSE OF THE FOURTH AMENDMENT

As observed by Witkin, it is axiomatic that a search and seizure if conducted pursuant to a search warrant are limited
Penal Code section 1539, subd. (a) provides:

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If a special hearing is held in a felony case pursuant to Section 1538.5, or if the grounds on which the warrant was issued are controverted and a motion to return property is made (i) by a defendant on grounds not covered by Section 1538.5, (ii) by a defendant whose property has not been offered or will not be offered as evidence against the defendant, or (iii) by a person who is not a defendant in a criminal action at the time the hearing is held, the judge or magistrate shall proceed to take testimony in relation thereto, and the testimony of each witness shall be reduced to writing and authenticated by a shorthand reporter in the manner prescribed in Section 869. Penal Code section 1540 provides: If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.

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by the terms of the warrant and only the described property from the target premises may be seized. The search and seizure are generally limited by the terms of the warrant; only the described premises (or person) may be searched, and only the described property may be seized. (See People v. Bradford (1997) 15 C.4th 1229, 1305, 1306, 65 C.R.2d 145, 939 P.2d 259 [noting that majority rule in federal courts requires total suppression of all items (those seized under warrant and those seized outside warrant) when police act in flagrant disregard of scope of warrant, but concluding that police were not in flagrant disregard in that case]; 2 LaFave 3d, 4.10; 2 Hall 2d, 44.23 et seq.; 54 A.L.R.4th 391 [seizure of books, documents, or other papers not described in search warrant]; 68 Am.Jur.2d (2000 ed.), Searches and Seizures 183, 293, 294; supra, 110 et seq.) (4 Witkin, Cal. Criminal Law (3d ed., 2000) Illegally Obtained Evidence, 134, pp. 760-761.)

This is so because the Fourth Amendment requires that a

15 16 17 18 19 20 21 22 23 24 25

search warrant describe with particularity the place to be searched, and the person or things to be seized. (U.S. Const., 4th Amend.) The particularity requirement precludes a general, exploratory rummaging in a persons belongings (Coolidge v. New Hampshire (1971) 403 U.S. 443, 467) and the seizure of one thing under a warrant describing another (Marron v. United States (1927) 275 U.S. 192, 196). As the Supreme Court

explained, By limiting the authorization to search to the specific areas and things for which there is probable

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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. (People v. Balint (2006) 138 Cal.App.4th 200, 205-206.) Further, as the Balint court observed: The scope of the warrant is determined by its language, reviewed under an objective standard without regard to the subjective intent of the issuing magistrate or the officers who secured or executed the warrant. (See Whren v. United States (1996) 517 U.S. 806, 813; accord, People v. Gall (Colo. 2001) 30 P.3d 145, 154. . .["A policemans ulterior motive could no more bar a search within the scope of a properly issued warrant than could a pure heart entitle him to exceed the scope of the warrant"].) Phrased differently, the scope of the officers authority is determined from the face of the warrant . . . . (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 109 [supporting affidavit has no bearing on warrants reach].) As many courts have observed, officers executing a search warrant are required to interpret it, and they are not obliged to interpret it narrowly. (United States v. Stiver (3d Cir. 1993) 9 F.3d 298, 302; see LaFave, supra , 4.11(a), at p. 774.) To satisfy the objective standard, the officers interpretation must be reasonable. (Balint, supra, 138 Cal.App.4th at p. 207.)

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Simply put, the seizure of the moneys and the ring from Mr. Watts home cannot be justified under the search warrant issued in this case as the seizure of these items violates the particularity requirement of the Fourth Amendment. The search warrant specifically directed the deputies to seize,

identifying information, bedding materials, recording devices, computers, computer related materials, cell phones, TiVos and the like. There was nothing in the search warrant that

mentioned authorizing the seizure of money or the ring. Thus the seizure of the money and the ring were completely outside the scope of the search warrant and its particulars and their seizure and continued retention is unlawful and unjustifiable. (See Marron v. United States, supra, 275 U.S. at p. 196;

Coolidge v. New Hampshire, supra, 403 U.S. at p. 467; Maryland

15 16 17 18 19 20 21 22 23 24 25

v. Garrison, supra, 480 U.S. at p. 84.) Moreover, the seized money and ring do that not would have make any these inherent items identifying relevant to

characteristics

establishing identity, dominion and control of the premises. (See e.g. Balint, supra, at pp. 207-208.) Further, as already

detailed, the money and ring were not stolen nor were they the product of any kind of illegal activity but were rather the legitimately owned property of the claimaint, Mr. Watts.

Therefore, under these facts, the previously cited cases --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Ensoniq

Corp.

v.

Superior People v.

Court Superior

(Dattoro), Court

supra, et

65 al.) 53

Cal.App.4th (1986) 187

1537,

(Chico

Cal.App.3d

648 and

People v. Lamonte,

supra,

Cal.App.4th 544 all compel the conclusion that the moneys and the womans ring seized from Mr. Watts home must be returned immediately to him and that the continued retention of these items violates Mr. Watts rights under the due process clause of the California Constitution and under the Fourth Amendment to the United States Constitution.

CONCLUSION For all the foregoing reasons, the movant Mr. JEFFREY WATTS urges the court to grant the within motion pursuant to Penal Code section 1536, 1539 AND 1540, and the due process clause of the California Constitution, Sheriffs and forthwith order the the San

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Bernardino

County

Department

and/or

District

Attorney of San Bernardino County to return the aforementioned described items U.S. Currency in the amount $160,000 or more, the foreign currency, and the ring to him.

DATE: January 29, 2009

Respectfully submitted,

By: __________________________ GROVER L. PORTER

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Attorney for Claimant JEFFREY WATTS

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