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People v. Kraft8/10/2000
a telephonic affidavit procedure. Deputy Charles Bensinger of the Orange County Sheriff's Department related under oath his own observations and what the arresting officers had told him concerning the circumstances of defendant's arrest, as follows: At 1:19 a.m. on May 14, 1983, Bensinger proceeded to the location where California Highway Patrol officers had stopped defendant's car. There Officer Sterling informed Bensinger how he had stopped the car, administered field sobriety tests and arrested defendant for driving under the influence of alcohol. Sterling told Bensinger he had noticed defendant's blue jeans fly was partially unbuttoned. Both Sterling and Howard told Bensinger they could not rouse the passenger in defendant's car and that he appeared to be dead. Howard gave Bensinger a vial of Ativan pills that had been prescribed for defendant and that he had found on the floor between the driver's seat and the door panel. Howard told Bensinger that, after removing a jacket from the victim's lap, he saw the victim's pants were pulled below his knees and his penis was exposed. Howard also told Bensinger he had found a knife on the driver's seat. Bensinger proceeded to the hospital, where the victim was pronounced dead. The victim, a 25-year-old White male, was identified as Terry Gambrel.
Orange County Sheriff's investigator James Sidebotham was also sworn for the affidavit. Sidebotham visited the morgue and viewed Gambrel's body, noticing ligature marks on both wrists, a faint ligature mark around the neck, and petechial hemorrhages in the eyes and lower gums, which are indicative of strangulation. Sidebotham had learned that when Gambrel was removed from defendant's car, no shoes were on the body. Based on Sidebotham's prior investigation of more than 25 "homosexual type homicides" and information he had received concerning the death of Gambrel, Sidebotham believed the Gambrel homicide was also a "homosexual type homicide."
Based on the foregoing information, Orange County Superior Court Judge Richard Beacom authorized Sidebotham to place Beacom's signature on the search warrant.
First, defendant argues the warrant that authorized officers to search his car for evidence relating to homicides was invalid because probable cause did not exist to believe defendant had committed murder. Defendant seems to suggest the police had probable cause only to search the car for intoxicants relating to his arrest for driving under the influence . This argument must fail, given that a victim of ligature strangulation was found dead in the front seat of defendant's car and that investigating officers suspected defendant was responsible for several other murders committed by similar means.
Defendant further argues the warrant was overbroad and used as a pretext for an impermissible general or exploratory search. (United States v. Rabinowitz (1950) 339 U.S. 56, 62.) We disagree. The warrant was indeed broad in scope, but such breadth was the inevitable result of a murder investigation involving multiple suspected victims. We conclude the breadth of the warrant in this case was commensurate with the scope of the investigation. Contrary to defendant's argument, the mere fact a large number of items were seized, many of which were not listed in the warrant, does not establish that the search was an illegal general search. Searching officers may seize items not listed in the warrant, provided such items are in plain view while the officers are lawfully in the location they are searching and the incriminating character of the items is immediately apparent. (Horton v. California, supra, 496 U.S. at p. 136.) Defendant complains that investigators "literally cleaned out the car, top to bottom
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