People v. Superior Court

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…