Laptop/Computer as Indicia?

By Charles Gillingham

When drafting a search warrant, it is important to request the authorization to search for indicia of ownership/occupancy/gang activity, etc.  But where does that authorization allow you to look?   

In People v. Rangel (2012) 206 Cal.App.4th 1310, a man was beaten and possibly stabbed in a park. The crime was thought to be gang related. Rangel was identified as a suspect, and a magistrate issued a warrant for his arrest and a search warrant for the house where he lived.

The search warrant authorized the seizure of stabbing instruments, items containing stains or traces of human blood, and "any and all items which would constitute items commonly known as "Gang Indicia," such as items and paraphernalia that would tend to demonstrate the subject's on-going gang affiliation including but not limited to graffiti, notebooks, photographs, sketches, poetry, and red clothing.... Gang related paraphernalia typically retained by gang members can also appear in other forms, including but not limited to, newspapers, artwork, compact disks, audio and videocassette, cameras, undeveloped film, address books, telephone lists, graffiti collections, and magazines." (Emphasis added.)

Police officers executed the search warrant and found Rangel in his bedroom along with a cell phone that was on his dresser and had been within his reach when they entered the room. The phone was a "smartphone," i.e., a cellular phone "that has the ability to store data, photographs, [and] videos." 

Rangel gave a statement and consented to the detective looking at his phone for a number.  After the interview, the detective obtained the cell phone that had been seized from Rangel's bedroom so he could find the telephone number and track down evidence about Rangel's alibi. The detective turned on the phone and saw the word "Pesado," which he recognized as Rangel's nickname. He clicked on a file that showed a list of text messages and read a text conversation with "Nessa" that appeared to link Rangel to the assault. After reading the text messages, which he had located within a minute of turning on the phone, the detective went to the phone's contacts list and began looking for names that had been mentioned during the investigation and Rangel's interview.

 

MOTION TO SUPPRESS

The defense argued that evidence of the text messages should be suppressed because the cell phone was outside the scope of the search warrant. The prosecutor responded that the warrant's reference to telephone lists and gang indicia encompassed the cell phone and authorized its seizure and search.

The trial court denied the motion to suppress. It concluded that the term "telephone lists," as used in the search warrant, encompassed the seizure of a cell phone because cell phones contain telephone lists.

HOLDING

The court held that a smartphone such as Rangel's is akin to a personal computer because it has the capacity to store people's names, telephone numbers and other contact information, as well as music, photographs, artwork, and communications in the form of e-mails and messages - all of which may amount to gang indicia, depending on their content. As such, appellant's phone was the likely container of many items that are the functional equivalent of those specifically listed in the warrant.

 

COMPUTERS

The Rangel Court also looked at a case involving a search warrant authorizing the seizure of items showing a person's dominion and control over the premises searched has been held to authorize the seizure of a laptop computer even though "computers" were not listed in the warrant as a type of item to be seized. (People v. Balint (2006 139 Cal.App.4th 200; People v. Varghese (2008) 162 Cal. App.4th 1084.)

"[L]aptop computers are commonly used for personal correspondence, electronic payment of bills, and storing other information analogous to the examples listed in the warrant that are responsive to the dominion and control principle. Under the functional equivalency test, the fact these documents are in digital form does not bar officers from seizing the evidence.... [A]n open laptop computer is likely to serve as a container of information tending to establish dominion and control of the residence in which it is found." (Balint, at p. 210.)

 

Officers should include indicia of occupancy/ownership/gang or other pertinent information-thus allowing a search of computers and cell phones for such evidence.  These investigative tools should be fruitful for you. Be Safe.