People v. Superior Court

While I agree with my colleagues that the superior court erred in suppressing the evidence, my reasoning is significantly different. I believe that the warrant in this case may not properly be interpreted, consistent with the United States Constitution, to authorize both the seizure of Maurice Xavier Nasmeh’s vehicle and the intensive search for trace evidence to which the vehicle was subjected. Nevertheless, I am convinced that the seizure and search of the vehicle was valid under the automobile exception to the warrant requirement and was not rendered unreasonable by the 10-day delay between the seizure of the vehicle and the search.

I. Search Warrant

On August 3, 2001, a search warrant was issued authorizing the search of Nasmeh’s home, person, and vehicle for 10 items of particularly described property. While the 10 items included “2-Sofa cushions white in color with blue pin-stripes” and a “Floor rug described as being mostly blue Persian style wool rug with a tag on the back,” the descriptions in the warrant of the items to be seized did not mention fibers or “trace” evidence of any kind. The warrant also did not authorize the seizure of Nasmeh’s vehicle. All of the…

Daniel Jensen, Law Office of Daniel Jensen, Santa Clara, J. Courtney Shevelson, Law Office of J. Courtney Shevelson, for Real Party in Interest.

Real party in interest Maurice Xavier Nasmeh has been charged with the murder of Jeanine Harms (Pen.Code, § 187) [1] and awaits trial. The superior court granted a pretrial motion by Nasmeh to suppress evidence (§ 1538.5), ruling that the search and seizure of Nasmeh's car exceeded the scope of a warrant and that there was no other ground to permit the introduction of the evidence. The People petitioned for a writ of mandate in this court asking us to order the superior court to vacate its order granting the motion to suppress and enter a new order denying the motion.

Because the warrant authorized the search and seizure in question, and because in any event the search and seizure were reasonable under the automobile exception to the Fourth Amendment's warrant requirement, the superior court erred in granting Nasmeh's motion to suppress. We will issue the writ.

Following Harms's disappearance over the weekend of July 28-29, 2001, police investigation focused on Nasmeh as the last person to report seeing her alive when he…

Real party in interest Maurice Xavier Nasmeh has been charged with the murder of Jeaniñe Harms (Pen. Code, § 187) 1 and awaits trial. The superior court granted a pretrial motion by Nasmeh to suppress evidence (§ 1538.5), ruling that the search and seizure of Nasmeh’s car exceeded the scope of a warrant and that there was no other ground to permit the introduction of the evidence. The People petitioned for a writ óf mandate in *89 this court asking us to order the superior court to vacate its order granting the motion to suppress and enter a new order denying the motion.

Because the warrant authorized the search and seizure in question, and because in any event the search and seizure were reasonable under the automobile exception to the Fourth Amendment’s warrant requirement, the superior court erred in granting Nasmeh’s motion to suppress. We will issue the writ.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background Facts and Police Officer’s Affidavit

Following Harms’s disappearance over the weekend of July 28 through 29, 2001, police investigation focused on Nasmeh as the last person to report seeing her alive when he left her house in Los Gatos in the early morning of…