Filed 10/30/23 P. v. Ewell CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN WESLEY EWELL,

Defendant and Appellant.

B311450

(Los Angeles County

Super. Ct. No. BA400028)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Lisa B. Lench, Judge. Affirmed.

Sharon Fleming, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David E. Madeo, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Appellant John Wesley Ewell moved to suppress evidence 

obtained in connection with his October 23, 2010 arrest; to quash 

and traverse the search warrant issued that same day for his 

residence and vehicle; and to suppress evidence found in the 

ensuing searches. After the trial court denied his motions, 

appellant pled no contest to four counts of first degree robbery in 

violation of Penal Code1 section 211 and four counts of murder 

(§ 187) with robbery and special circumstance allegations

pursuant to section 190.2, subdivision (a)(17).2 He was sentenced 

to four terms of life without the possibility of parole for the 

murders, and four mid-terms of four years for the robbery 

convictions, stayed pursuant to section 654.

He now appeals the denial of those motions. Appellant 

was arrested after officers investigating the home invasion 

robbery-murders of Leamon and Robyn Turnage reviewed video 

footage from four locations where a Turnage ATM card was being 

used. Investigating officers concluded that appellant was the 

person using it. Appellant contends there was no probable cause 

for his warrantless arrest because there were no reasonable 

grounds to believe he was the person using Robyn Turnage’s 

ATM card.

Investigators obtained a search warrant for appellant’s 

home and car, based on essentially the same facts which 

prompted his arrest. Appellant contends the search warrant was 

facially invalid for essentially the same reasons as the arrest. 

Appellant brought a contemporaneous motion to traverse the 

warrant, contending the affidavit supporting the warrant 

1 Undesignated statutory references are to the Penal Code.

2 The People had sought the death penalty against appellant.
3

includes statements made with reckless disregard for the truth. 

He further contends the warrant was invalid because it failed to 

describe the items to be seized with reasonable particularity.

Finally, appellant contends the officers exceeded the scope 

of the warrant when they seized a day planner which contained 

the address of another robbery-murder victim, Hanna Morcos, 

and that all items related to the Morcos murder seized after that 

search were the fruit of the poisonous tree. Appellant seeks 

suppression of all seized evidence as a remedy for what he 

characterizes as the officers’ flagrant disregard for the scope of 

the warrant. We see no error in the trial court's denial of all the 

motions and so affirm the judgment.

BACKGROUND

On September 24, 2010, appellant murdered Hanna Morcos 

and stole items, notably foreign coins, from the home on West 

137th Street in Hawthorne. On October 13, 2010, appellant 

murdered Denise Roberts and stole items from her home on 

South Hoover Street, two houses down from appellant’s 

residence. On October 21, 2010, appellant murdered Leamon and 

Robyn Turnage and stole items from their home on West 142nd

Street in Hawthorne. Appellant bound the wrists or ankles of all 

four victims.

The Morcos and Roberts murders were unsolved when Los 

Angeles County Sheriff’s Department (LASD) officers went to the 

Turnage home in the later afternoon of October 22, 2010, to 

investigate a possible double homicide and discovered the 

Turnages had been murdered.

Robyn Turnage was bound with black electrical tape 

around her wrists; there was also black electrical tape around her 

head. Leamon had black electrical tape around his head, and his 
4

hands were tied behind his back with a white cord or string. A 

yellow nylon rope was under and around his body.

Empty boxes suggested jewelry had been taken. Robyn’s 

purse had been emptied out in the living room and Leamon’s 

wallet was open on the kitchen table. Credit/debit cards 

appeared to be missing from both.3 Investigators noticed a Bank 

of the West checkbook, contacted a police detective specializing in 

credit card crimes and asked if he had a source in the banking 

industry, specifically Bank of the West.

At some point in the investigation, on either October 22 or 

23, Detective Hecht spoke with Mohammad Khan, a tenant in a 

back guest house on the Turnage property. Khan told Detective 

Hecht that at about 11:30 a.m. on October 21 Leamon Turnage 

came to Khan’s unit with a man in a blue baseball hat, blue work 

shirt and dark pants. Turnage said the man needed to check the 

property for a gas leak. Khan described the “gas man” as a black 

male in his early 50’s with a thin build and a thin mustache. 

Detective Hecht got the impression from Khan that the man was 

just “smelling” for gas.” Khan said they did not smell any gas 

and left very quickly.

In the very early morning hours of October 23, 2010, Bank 

of the West representative Hayley McCormick contacted 

Detective Hecht. She drove to a bank branch, opened it up and 

logged onto the bank’s computer equipment to search for activity. 

She told investigators that Robyn Turnage’s Bank of the West 

ATM card was being used at ATMs in the area.

3 Later in the investigation, after the crime scene was 

released back to the family, family members found several credit 

cards under a bed in the house.
5

Investigators learned from a Bank of the West employee 

that bank records showed the Turnage ATM card had been used 

at 4:24 p.m. on October 21, 2010 at R&F Liquor, at 10:25 a.m. on 

October 22, 2010 at a Shell gas station at 854 West El Segundo 

Boulevard in Gardena, and at 10:36 a.m. on October 22, 2010 at a 

7-11 store at 861 West Rosecrans Avenue in Gardena. Detective 

Hecht went to the three locations and viewed surveillance video.

Video from R&F Liquor showed appellant entering and 

leaving the store twice. 4 One of the exit times was 4:24 p.m. 

That location did not have a camera focused on the ATM itself.

Video from the Shell station showed appellant conducting 

an ATM transaction from 10:28 to 10:30 a.m.

Video from the 7-11 showed appellant arriving at the store 

at 10:40 a.m. That location did not have a camera filming the 

actual ATM or an outdoor camera.

At the Shell station, appellant is seen on video entering and 

exiting a red car with a black primer hood and black right front

fender; the car is also seen in the R&F Liquor video, and it is 

reasonable to infer appellant is driving it in the video.

Sometime later, on October 23, 2010, Detective Hecht

learned from Bank of the West that the Turnage ATM card had 

been used again at the same Shell station and the same 7-11, and 

at an ARCO station at 11259 South Vermont, at 6:54 a.m., 

7:00 a.m. and 7:35 a.m. respectively. Detective Hecht viewed 

videos from the locations, and saw the same black male, believed 

4 To be clear, the person in the videos is a black male with a 

thin build and a thin mustache. It was Detective Hecht’s opinion 

that this same man was in all the videos, and that the man was 

appellant.
6

by Detective Hecht to be appellant, at all three locations, and the 

distinctive red car at the Shell and ARCO stations.

The Shell video showed appellant conducting an ATM 

transaction from 6:58-7:00 a.m. It also showed the distinctive red 

car.

The recorded videos from the 7-11 and ARCO station were

missing (or perhaps never copied by LASD), but Detective Hecht

recalled viewing the videos and seeing appellant. He specifically 

recalled seeing appellant exiting and entering the red car at the 

ARCO station.

The LASD Surveillance and Apprehension team began 

surveillance of the 7-11 and the Shell station as well as a liquor 

store which was across the street from the Shell station. The 

Turnage ATM card had been declined there due to daily 

withdrawal limits. At about 7:00 p.m., LASD Detective Arturo 

Barrera observed a black male get into the distinctive red car at

the liquor store. The team followed the car to 12653 South 

Hoover Street, where the man got out of the red car and entered 

the residence. When the man came out about 20 minutes later, 

officers arrested the man, identified as appellant.

Detective Duval prepared a search warrant for the Hoover 

Street residence and the red car. The warrant was authorized by

a magistrate on October 23, 2010 at 11:26 p.m. Detective Duval 

and his partner Sergeant Garcia supervised the search, which 

was conducted by Hawthorne Police Department (HPD) 

personnel. As relevant to this appeal, an HPD officer discovered 

an address in a day planner, and other HPD officers recognized it 

as the address of the Morcos murder.

The next day, Detective Hecht supervised a search of the 

red car, which had been impounded. LASD Sergeant Alexander 
7

MacArthur was present; he was an investigator in the Morcos 

murder. During the search of the car Detective Hecht seized a 

blue coin purse containing foreign coins and a black briefcase 

containing papers. Later that day Detective Hecht gave these 

items to Sergeant MacArthur.

Detective Duval searched the red car on October 27, 2010, 

and Detective Hecht searched the car again on October 29, 2010. 

Additional items were recovered during both searches.

DISCUSSION

I. Probable Cause Supported Appellant’s Arrest.

Officers arrested appellant without a warrant, and 

appellant moved to suppress all evidence recovered after that 

arrest, on the ground that officers lacked probable cause to arrest 

him.

The trial court found there was probable cause to believe 

appellant was using an ATM card that belonged to Robyn

Turnage shortly after the card was likely taken, based on:

(1) surveillance video showing a “very distinctive” car at some/all 

of the ATM locations, which appellant was observed driving very 

shortly before his arrest; and (2) surveillance videos of the ATM 

locations showing a person at the locations in close proximity to 

the times the cards were being used. That person matched the 

general description of a person observed with Mr. Turnage at the 

residence the morning of the murders. Thus, the trial court 

concluded that there was probable cause to arrest appellant for a 

felony.

The prosecution bears the burden of proving the 

reasonableness of a warrantless arrest. (People v. Williams

(1999) 20 Cal.4th 119, 130.) A warrantless arrest is reasonable 
8

under the Fourth Amendment where an officer has probable

cause to believe that a criminal offense has been or is being 

committed. (People v. Kraft (2000) 23 Cal.4th 978, 1037 (Kraft).)

Probable cause exists if facts known to the arresting officer would 

lead a person of ordinary care and prudence to entertain an 

honest and strong suspicion that an individual is guilty of a 

crime. (Ibid.) Probable cause “does not demand any showing 

that such a belief be correct or more likely true than false.” 

(Texas v. Brown (1983) 460 U.S. 730, 742 (Brown).) “Probable 

cause may exist even though there may be some room for doubt.” 

(People v. Fischer (1957) 49 Cal.2d 442, 446 (Fischer).) “The test . 

. . is not whether the evidence upon which the officer made the 

arrest is sufficient to convict.” (Ibid.)

Where an officer makes a warrantless arrest based on a 

belief there is probable cause to do so, “the officer must testify to 

the facts or information known to him on which his belief is 

based” because “the court and not the officer must make the 

determination whether the officer's belief is based upon 

reasonable cause.” (People v. Boyles (1955) 45 Cal.2d 652, 656.) 

In ruling on the motion to suppress, the trial court is “vested with 

the power to judge the credibility of the witnesses, resolve any 

conflicts in the testimony, weigh the evidence and draw factual 

inferences.” (People v. Woods (1999) 21 Cal.4th 668, 673.)

“ ‘The standard of appellate review of a trial court’s ruling 

on a motion to suppress is well established. We defer to the trial 

court’s factual findings, express or implied, where supported by 

substantial evidence. In determining whether, on the facts so 

found, the search or seizure was reasonable under the Fourth 

Amendment, we exercise our independent judgment. 

[Citations.]’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.)
9

Appellant contends the trial court erred in finding probable 

cause because the surveillance videos either do not show him 

actually conducting an ATM transaction or do not show any 

transactions at the times provided by Bank of the West for the 

Turnage card transactions, and thus do not sufficiently connect 

him to the use of the Turnage ATM card.

The facts related by Detective Hecht for probable cause 

largely involve the videos from locations where the Turnage ATM 

card was used. Detective Hecht’s testimony, detailed above, 

shows that appellant appeared at all the locations where the 

Turnage ATM card was used on October 21, 22, and 23, within 

minutes of the time Bank of the West records verify the card 

being used.5 We find these facts alone to be compelling, but even 

if they were not sufficient to lead a person of ordinary care and 

prudence to entertain an honest and strong suspicion that 

appellant was using the stolen Turnage ATM card, these facts do 

not stand alone.

Recorded video from the Shell station, the only location 

with a video camera pointed at the ATM, shows appellant using 

the ATM within minutes of the time Bank of the West records 

verify the Turnage ATM card was used on both October 22 and 

23, 2010. Appellant focuses on the slight time difference between 

the time on the videos and the Bank of the West times, and 

argues that the time discrepancies in the Shell videos, “without 

5 The Turnage ATM card was used at four locations: R&F 

Liquor, the Shell station, the 7-11, and an ARCO station. 

Detective Hecht testified that he viewed video from all the 

locations. There was an attempted use of the card at J&S Liquor 

on October 23, 2010, but the card was declined. Detective Hecht

did not remember any video from J&S Liquor.
10

further verification, cast doubt” on whether he was using the 

Turnage ATM card. Of course, “Probable cause may exist even 

though there may be some room for doubt.” (Fischer, supra,

49 Cal.2d at p. 446.)

The video surveillance recordings, ATM internal time 

clocks (if they played any role in the time differences) and the 

Bank of the West records are all forms of computer records.6 

Generally, inaccuracies in computer records go to the weight of 

the evidence, not its admissibility. (People v. Martinez (2000) 

22 Cal.4th 106, 132.) Put differently, the trial court was not 

required to disregard completely a computer record because it 

had an inaccuracy. The trial court could properly determine 

what weight to give the computer records. The trial court 

recognized the time discrepancies but found the “close proximity” 

of the times showed that appellant had used the Turnage ATM 

card. We find substantial evidence to support this finding.

Detective Hecht began viewing the Shell videos “at least 

almost five, ten minutes on either side” of the Bank of the West 

times and he did not see anyone else use the ATM in that time 

period. Specifically, the recorded videos played by defense 

counsel during the hearing shows that no one used the ATM in 

the brief interval between the Bank of the West time for the 

Turnage transaction (10:25 a.m.) and appellant’s use of the ATM 

(10:28–10:30 a.m.) on October 22, 2010 or between the Bank of 

6 Although not determinative of our analysis on this issue, 

when Detective Duval was shown the videos during the hearing, 

he testified that “in my experience, when I go to capture 

surveillance video, I usually start it 20 minutes before and 

20 minutes after the time . . . because there’s always a 

discrepancy in the times.”
11

the West transaction time (6:54 a.m.) and appellant’s use of the 

ATM (6:58–7:00 a.m.) on October 23, 2010. It should be 

emphasized that this same set of circumstances occurred on two 

different days. This evidence strongly suggests appellant was the 

person who used the Turnage ATM card at the Shell station.

Although more was not required, we note the Shell station 

transactions increase the probative value of the videos from R&F

Liquor and the 7-11, which do not directly show the ATM itself. 

For the R&F Liquor store visit and the two Shell station 

transactions, appellant’s distinctive red car is captured on video, 

but no single other car appears in all three videos. Put 

differently, the videos strongly suggest that no one other than 

appellant was at both the R&F Liquor store and the Shell station 

at or near the time the Turnage ATM card was used.7

The 7-11 store and the Shell station are about a two-minute

drive from each other, and Bank of the West records show 

Turnage ATM card transactions occurring about 11 minutes 

apart at the two locations on October 22. 2010. Appellant 

appears at the 7-11 at about 10:40 a.m., about 10 minutes after 

he completed the Shell station ATM transaction on October 22. 

Although video from the 7-11 store for October 23 could not be 

located at the time of the suppression hearing, Detective Hecht

testified he observed appellant on that video within minutes of 

the Bank of the West time for the transaction; Bank of the West 

7 We note that although the video from the ARCO station 

could not be found at the time of the hearing, Detective Hecht

testified that the distinctive red car appeared in that video, which 

showed the ARCO station around the Bank of the West time for 

the transaction. The 7-11 store apparently did not have outdoor 

cameras.
12

records place the Shell station and 7-11 transactions six minutes 

apart on that date.

Finally, on October 23, 2010, as Detective Hecht was 

aware, appellant was observed getting into and driving the 

distinctive red car and he was followed to a residence on Hoover. 

It was at this location appellant was arrested. Appellant’s use of 

the distinctive red car strongly suggests that he is in fact the 

black male in the videos.

Viewing these facts as a whole, we find a “common-sense 

probability” that appellant was the person using the Turnage 

ATM card. Since the evidence also showed that the card was 

used on October 21, 2010, only hours after the likely time of the 

Turnage robbery-murder, the evidence as a whole would lead a 

person of ordinary care and prudence to entertain an honest and 

strong suspicion that appellant stole the card from the Turnages, 

that is, he committed robbery. (See People v. Grimes (2016) 

1 Cal.5th 698, 731 (Grimes) [For robbery charge, “ ‘[p]ossession of 

recently stolen property is so incriminating that to warrant 

conviction there need only be, in addition to possession, slight 

corroboration in the form of statements or conduct of the 

defendant tending to show his guilt’ ”]; People v. Gamble (1994) 

22 Cal.App.4th 446, 453.)

II. Challenges to the Search Warrant Fail.

As the trial court correctly summarized, appellant raised 

five issues in connection with his motion to quash and traverse 

the October 23, 2010 search warrant: 1) the sufficiency of the 

probable cause set out in the search warrant affidavit; 

2) misstatements in the affidavit that involved reckless disregard 

for the truth and which, if excised, negated probable cause; 3) the 

sufficiency of the particularity of the items to be seized; 
13

4) seizures during the search exceeding the scope of the warrant; 

and 5) the inapplicability of the good faith reliance doctrine.

A motion to traverse is different from a motion to quash.

A defendant moving to quash a warrant asserts the warrant on 

its face lacks probable cause. A defendant moving to traverse a 

warrant “ ‘mount[s] a subfacial challenge, i.e., attack[s] the 

underlying veracity of statements made on the face of the search 

warrant application.’ ” (People v. Heslington (2011) 

195 Cal.App.4th 947, 957, fn. 7 (Heslington).) If the defendant 

shows deliberate misstatements or misstatements made with a 

reckless disregard for the truth, those statements must be 

excised from the warrant and probable cause must be reassessed. 

(Ibid.) 

“The question facing a reviewing court asked to determine 

whether probable cause supported the issuance of the warrant is 

whether the magistrate had a substantial basis for concluding a 

fair probability existed that a search would uncover wrongdoing. 

[Citations.] ‘The task of the issuing magistrate is simply to make 

a practical, commonsense decision whether, given all the 

circumstances set forth in the affidavit before him, including the 

“veracity” and “basis of knowledge” of persons supplying hearsay 

information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.’ [Citation.] 

In a pre-Proposition 8 case, we stated: ‘In determining the 

sufficiency of an affidavit for the issuance of a search warrant the 

test of probable cause is approximately the same as that 

applicable to an arrest without a warrant, . . . [citations], namely, 

whether the facts contained in the affidavit are such as would 

lead a man of ordinary caution or prudence to believe, and 

conscientiously to entertain, a strong suspicion of the guilt of the 
14

accused.’ [Citation.]” (Kraft, supra, 23 Cal.4th at pp. 1040–

1041.) More specifically, “ ‘Probable cause sufficient for issuance 

of a warrant requires a showing that makes it “ ‘substantially 

probable that there is specific property lawfully subject to seizure 

presently located in the particular place for which the warrant is 

sought.’ ” ’ ” (People v. Clark (2014) 230 Cal.App.4th 490, 496–

497 (Clark).) “ ‘The affidavit must set forth more than the “ ‘mere 

conclusion’ ” of the affiant that the items sought are located on 

the premises to be searched. [Citations.] The affidavit must 

present the magistrate with facts indicating the circumstances 

underlying the affiant's belief in order that the magistrate may 

judge their persuasiveness for himself.’ ” (Id. at p. 497.) The 

magistrate's determination of probable cause is entitled to 

deferential review. (Kraft, at p. 1041.)

A. The Search Warrant Was Supported by Probable 

Cause

A defendant moving to quash a warrant asserts the 

warrant on its face lacks probable cause. (Heslington, supra,

195 Cal.App.4th at p. 957, fn. 7.) Thus, in reviewing the 

sufficiency of the facts upon which the magistrate or judge based 

his or her probable cause determination, “we consider only the 

facts that appear within the ‘ “four corners of the warrant

affidavit.” ’ ” (Clark, supra, 230 Cal.App.4th at p. 497.)

The trial court found that “the bottom line is there was 

usage of these cards by a person who matched the description 

and whose car matched the description of the defendant. And he 

was surveilled [for] a time. And that all was discussed earlier in 

terms of probable cause to arrest. [¶] But while there were 

discrepancies, I think a fair reading of the affidavit established 

probable cause.”
15

Appellant contends that the trial court erred in finding 

probable cause for the warrant for essentially the same reason it 

erred in finding probable cause to arrest: There was insufficient 

evidence connecting him to the use of the Turnage ATM card. 

Appellant also contends that there were insufficient facts stated 

in the affidavit to identify him as the gas man who came to the 

Turnage property on October 21, 2010.

Although we agree with trial court that essentially the 

same standard applies for probable cause for a warrant as it does 

for an arrest, we consider probable cause for the warrant anew, 

as the affidavit was prepared by Detective Duval and does not 

include precisely the same information as Detective Hecht’s 

testimony about probable cause to arrest. In brief, after listing 

the dates and times for the relevant ATM transactions, the 

affidavit states that “Investigators reviewed the video footage 

recovered from the Shell gas station and the 7-11 store. They 

noted that the person [us]ing the card was a male black with a 

thin build and a thin moustache.” These are sufficient facts to 

show that the male black suspect was using the Turnage ATM 

card. The affidavit also notes that investigators “were also able 

to see [the suspect] enter/exit a red car, which had a black primer 

hood and right front fender.” The area around the Shell station 

was placed under surveillance and later in the day, the suspect 

was spotted entering a red car with a black hood and right front 

fender. The surveillance team followed the car to 12653 South 

Hoover Street; the suspect entered the residence through the 

front door. When he exited the residence about 20 minutes later, 

he was arrested and identified as appellant. This is sufficient 

evidence to show that the person in the videos was appellant.
16

These facts, together with information in the affidavit that 

other credit/debit cards and jewelry were missing from the 

Turnage residence, were sufficient to make it “ ‘substantially 

probable that there is specific property lawfully subject to seizure 

presently located in’ ” appellant’s residence. (Clark, supra,

230 Cal.App.4th at p. 496.) Specifically, appellant’s use of the

Turnage ATM card shows his conscious possession of it, and the 

use of the card the morning after the robbery supports an 

inference that he stole the card from the Turnages. (Grimes,

supra, 1 Cal.5th at p. 731.)

8 This inference is slightly 

strengthened by appellant’s generally similar appearance to the 

gas man seen at the Turnage residence on the day of the robberymurder. This is weak evidence, as the description of the gas man 

was very general, but it does have some slight corroborative 

value.9 Since other property was apparently taken during the 

robbery, it was substantially probable that other property would 

be found at appellant’s residence.

8 This evidence alone would, if believed by a jury, be 

sufficient evidence to support a conviction for theft. If considered 

with the evidence that cards were taken from the Turnage home 

while the Turnages were present and restrained, it would

support a conviction for robbery.

9 It might have been possible, as appellant suggests, for 

investigators to do more to connect appellant to the gas man, 

such as showing a photograph of appellant to the Turnage tenant 

who described the gas man. But, given the evidence that 

appellant used the Turnage ATM card, it was not necessary, 

particularly given the time constraints of the investigation and 

the low quality of the still photos produced from the video.

Probable cause does not require evidence sufficient to convict the 

suspect. (Fischer, supra, 49 Cal.2d at p. 446.)
17

We cannot agree with appellant that probable cause was 

lacking because the information about the times and places of the 

uses of the Turnage ATM card was “conclusory.” Appellant bases 

this characterization on the fact that Detective Duval did not 

speak directly to McCormick, did not know her title or position at 

Bank of the West, and did not know the “mechanism” by which 

McCormick was able to determine the time and location of the 

Turnage ATM card usage.

In general, hearsay may be relied upon in seeking a search

warrant. (People v. French (2011) 201 Cal.App.4th 1307, 1317.) 

Further, officers can make arrests based on information and 

probable cause furnished by other officers. (People v. Ramirez

(1997) 59 Cal.App.4th 1548, 1553.) The record shows that 

Detective Hecht spoke with McCormick.

We do not find conclusory the statement referring to the 

times and places of the Turnage ATM card usage. A conclusory 

statement, in this context, would be a bare statement that the 

card was used or that the card was used at the particular places 

and times given, but without any indication of the source of the 

information at all. The affidavit begins by stating the source of 

the information was Hayley McCormick “from” Bank of the West; 

this statement is reasonably understood to indicate she is an 

employee of the bank. In context, the affidavit is reasonably 

understood as indicating that McCormick lawfully accessed the 

Turnage ATM card usage information through her employer. 

Read as a whole, the statement on the next page of the affidavit 

that investigators “were advised that [the] card was used at the 

following ATM’s” is reasonably understood as meaning that the 

investigators were advised by McCormick.
18

We do not see the significance of stating McCormick’s exact 

title or position at Bank of the West, or the exact “mechanism” 

used by McCormick to determine the Turnage ATM card usage.

McCormick’s phone number was provided in the affidavit if the 

magistrate wanted to verify her existence or had questions about 

Bank of the West’s records. But generally, more details about 

McCormick or the computer software or hardware she used would

have no meaning to a person who was not a Bank of the West 

employee or a specialist in banking software or hardware.10

B. The Statements in the Affidavit Were Not Made with 

Knowledge of Falsity or Reckless Disregard for the 

Truth

A motion to traverse requires the defendant to show that: 

“(1) the affidavit contained ‘a false statement made “knowingly 

and intentionally, or with reckless disregard for the truth;” and 

(2) “the allegedly false statement is necessary to the finding of 

probable cause.” ’ ” (Heslington, supra, 195 Cal.App.4th at p. 957, 

fn. 7.)

In deciding such a motion, a trial court must first decide if 

the affidavit contains deliberately false statements or statements 

made in reckless disregard for the truth. If so, the statements 

must be excised and the affidavit retested for probable cause. 

This rule applies to omissions as well as affirmative statements. 

Mere negligence is not enough. Put differently, we do not excise 

inaccurate statements which are the result of negligence.

10 Given the short time period involved, it is virtually certain 

McCormick accessed Bank of the West’s electronic/computer 

records for the Turnage account and saw the transactions.
19

Appellant contends that the statements about his card 

usage are inaccurate, and the trial court erred in denying his 

motion to traverse the warrant. The trial court ruled: “I . . . don’t 

find that there was a reckless disregard for the truth. There was 

a lot of information being transferred among officers on a very 

immediate basis. And while that doesn’t excuse [lack of] 

attention to detail, I just don’t find that there was recklessness 

here.” We defer to this finding if supported by substantial 

evidence.

“ ‘[When] the Fourth Amendment demands a factual 

showing sufficient to comprise “probable cause,” the obvious 

assumption is that there will be a truthful showing’ (emphasis in 

original). This does not mean ‘truthful’ in the sense that every 

fact recited in the warrant affidavit is necessarily correct, for 

probable cause may be founded upon hearsay and upon 

information received from informants, as well as upon 

information within the affiant’s own knowledge that sometimes 

must be garnered hastily. But surely it is to be ‘truthful’ in the 

sense that the information put forth is believed or appropriately 

accepted by the affiant as true.” (Franks v. Delaware (1978) 

438 U.S. 154, 164–165 (Franks).) Thus, it is not enough for a 

defendant to simply show a discrepancy between the actual facts 

and the facts given in the affidavit. (People v. Costello (1988) 

204 Cal.App.3d 431, 442.)

Appellant contends the phrase “investigators responded to 

these locations . . . and obtained video footage from the ATM’s” 

indicates that the actual transactions involving the Turnage card 

could be observed in each of the videos for the October 21 and 22, 
20

2010 transactions.11 We agree in part. This phrase could be 

understood as suggesting that the Shell station and 7-11 videos 

showed appellant actually using the Turnage card, when 

considered with the later statement that “[i]nvestigators 

reviewed the video footage recovered from the Shell gas station 

and the 7-11 store. They noted that the person [us]ing the card 

was a male black with a thin build and a thin moustache.”12

Appellant also claims there is a misleading omission in the 

affidavit because it does not specify that the Shell station video 

times do not precisely match the Bank of the West times for the 

Shell station ATM transactions. We agree that this information 

is not included in the affidavit.

Essentially, appellant’s argument was that Detective Duval

displayed reckless disregard for the truth because he made 

statements about the contents of the surveillance videos when he 

had not actually viewed those videos. Detective Duval recalled 

that he relied on other officers’ accounts of the videos’ contents, 

11 The affidavit states: “the [victim’s] debit card had been 

used at ‘R&F Liquor Store,’ . . . on October 21, 2010 at 1617 

hours. It had also been used at the ‘Shell Gas Station,’ located at 

854 West El Segundo Boulevard . . . on October 22, 2010, at 1025 

hours, and at the ‘7-11’ store located at 861 West Rosecrans 

Avenue . . . on October 22, 2010, at 1036 hours. Investigators 

responded to those locations [and] obtained the video footage 

from the ATM’s.”

12 We do not find that the affidavit can reasonably be 

understood as indicating that appellant was directly shown using 

the ATM in the videos from R&F Liquor, the ARCO station or 

J&S Liquor. The affidavit does not state that investigators 

viewed the video from the R&F Liquor ATM, or that they viewed 

any video from the ARCO or J&S Liquor.
21

but he did not recall which officers. Detective Duval believed 

that the officers were the ones who were tasked with obtaining 

and viewing the video. Detective Hecht confirmed that the 

information in the affidavit “pretty much all” came from him as 

the lead investigator, and that he had viewed the videos.

It was permissible for Detective Duval to rely on another 

officer’s investigation, including viewing the videos, and on 

hearsay. Thus, Detective Duval’s failure to view the video does 

not show reckless disregard for the truth.

As to Detective Hecht’s statements, appellant relied on the 

fact of the inaccuracies to show reckless disregard for the truth. 

Appellant did not point to any specific evidence of Detective 

Hecht’s behavior that showed the inaccuracies and the omission 

were the product of reckless disregard. He simply argued that 

Detective Hecht had a responsibility to be accurate, or as 

accurate as possible. More is required.

We note that the investigation into the Turnage robberymurder was large and fast moving. Different teams handled 

different aspects of the investigation. Detective Hecht had the 

task of viewing the videos. His first viewing took place the 

morning of October 23, 2010 and by the evening of October 23 

appellant had been arrested. It was at this point that the search 

warrant needed to be prepared. Detective Hecht assigned the 

task of writing the affidavit to Detective Duval, an experienced 

officer who was part of the investigation. Detective Hecht and 

his partner met with Detective Duval and his partner to convey 

the information about the video content. Nothing about this 

process suggests a reckless disregard for the truth.

Further, Detective Hecht had not slept the night before, 

and fatigue, coupled with the stress of a fast-paced investigation, 
22

provide the most likely explanation for the inaccuracies about the 

videos. At most, this would be negligence.

We recognize that the record in this case is itself full of 

discrepancies which make it hard to assess what happened 

concerning the transmission of information for the affidavit. As 

the trial court discussed at length: “I think everybody can agree 

that the testimony that was taken during the hearings had some 

discrepancies internally in terms of what officers testified to, 

what they later recalled after being refreshed, what was in the 

affidavit . . . . [¶] How much of it was based on lack of 

recollection, how much of it was based on surmising, how much of 

it was based on what one hoped would have been there, I mean it 

runs the gamut in terms of bases for the discrepancies. [¶] But I 

don’t think anybody can say there weren’t discrepancies in what 

each officer testified to himself, what officers testified to in 

relation to each other, and what ultimately the pieces of evidence 

that were displayed showed. That I think is clear. [¶] . . . [¶] And 

it was exacerbated, I think, by the fact that there were multiple 

days, multiple images, and it all happened a while ago, that is 

like seven or eight years ago. So I mean, I think all of that 

contributed to—to some of the discrepancies in the testimony 

itself. I know at times I had a hard time keeping track of which 

event was being discussed.”

Given the state of the record, we note that even if we 

assumed for the sake of argument that Detective Hecht had acted 

with reckless disregard for the truth, we would not find that 

appellant would prevail on his motion. When a defendant has 

shown reckless disregard, we correct the affidavit and then retest 

it to determine whether it supports probable cause. (Franks,

supra, 438 U.S. at pp. 171–172; People v. Eubanks (2011) 53 
23

Cal.4th 110, 136.) Under that analysis, we would strike the 

phrase “from the ATM’s” from the affidavit so that it simply 

reads “Investigators responded to those locations [and] obtained 

the video footage.” We would change the next challenged 

sentence to read: “They noted that the 7-11 and Shell station 

videos showed a male black with a thin build and a thin 

mustache, but only the Shell station videos directly showed the 

male using the card.”13 We would also correct the statement 

about investigators seeing the distinctive red car to clarify where 

it was seen by investigators: at the Shell station, R&F Liquor, 

and the ARCO station, but not at the 7-11. Finally, we would add 

the specific times provided by Bank of the West for the 

transactions and the times shown on the Shell station videos.

We find this corrected version sufficient to show probable 

cause that appellant was the person using the Turnage ATM 

card. The time differences are minor. Further, appellant used 

the same Shell station ATM within minutes of the Bank of the 

West time two days in a row. While the corrected affidavit no 

longer states that the 7-11 video directly shows appellant using 

the ATM or exiting/entering the distinctive red car, the corrected 

affidavit still places appellant at R&F Liquor and the ARCO 

station (through the presence of his distinctive red car) and at the 

7-11 store, all near the time that the Turnage ATM card was 

used at those locations. Coupled with the strong evidence 

provided by the Shell station videos, this is sufficient to show 

13 Arguably, to make the statement entirely accurate, it 

would be changed to read: “All the videos show the presence of a 

think black male with a thin build and a thin mustache, but only 

the Shell station videos directly show him using the card.”
24

probable cause to believe that appellant was the person using the 

Turnage ATM card. Thus, the warrant remains valid.

C. The Warrant Satisfied the Particularity Requirement

Both the United States and California Constitutions 

require a search warrant to provide a “particular” description of 

the property to be seized. (People v. Robinson (2010) 47 Cal.4th 

1104, 1132 (Robinson).) “The purpose of the ‘particularity’ 

requirement of the Fourth Amendment is to avoid general and 

exploratory searches by requiring a particular description of the 

items to be seized.” (People v. Bradford (1997) 15 Cal.4th 1229, 

1296 (Bradford).) Put differently, “a search warrant must 

describe items to be seized with particularity sufficient to prevent 

a general, exploratory rummaging in a person's belongings.” 

(Robinson, at p. 1133.)

“In the context of the Fourth Amendment, ‘ “[p]articularity 

is the requirement that the warrant must clearly state what is 

sought.” ’ ” (Robinson, supra, 47 Cal.4th at p. 1132.) A warrant 

“ ‘need only be reasonably specific’ [citation], and ‘the specificity 

required “varies depending on the circumstances of the case and 

the type of items involved.” ’ ” (Ibid.) “The requirement of 

reasonable particularity ‘is a flexible concept, reflecting the 

degree of detail available from the facts known to the affiant and 

presented to the issuing magistrate.’ ” (Ibid.)

“ ‘Whether the description in the warrant of the property to 

be seized is sufficiently definite is a question of law on which an 

appellate court makes an independent judgment.’ ” (People v.

Tockgo (1983) 145 Cal.App.3d 635, 640.)

Appellant contends the description of the property in the 

warrant was so deficient that it essentially authorized a general 

search. We cannot agree.
25

The property to be seized is listed in Attachment B to the 

warrant: “Any credit/debit cards in the name of Victim Leamon 

C. Turnage, or Victim Robyn Turnage, or identification in the 

victim’s names, or the previous that is not in the name of anyone 

else not residing at the location. Any jewelry that can be shown 

to the victim’s family for identification at a later date. Any items 

that can be used for binding purposes such as electrical tape, duct 

tape, packaging or shipping tape, rope, cord or string. Two oral 

saliva samples from the interior of John Ewell’s mouth.”

There was no need to specify the precise credit/debit cards 

by the issuing financial institution believed to have been stolen 

from the Turnages. Any such card in their name found at 

appellant’s residence would be the proceeds of the robbery and 

subject to seizure. The same is true for identification in the 

Turnages’ names.

Under the circumstances, the officers had no ability to be 

more specific in describing the jewelry stolen from the Turnages. 

Assuming the Turnage children could have looked at the house 

and determined which exact jewelry items were missing, as 

appellant contends, the children lived in Florida; the daughter (or 

daughter-in-law) had just had a baby and so could not easily 

travel. Thus, it was reasonable to seize any jewelry until it could 

be determined what precisely had been taken from the Turnage 

residence.

Similarly, under the circumstances of the investigation and 

the facts known to the officer, the inclusion of items not visible on 

the Turnage bodies in the list of items that could be used for 

binding, such as “duct tape, packaging or shipping tape” was not 

overly broad. At the time of the search, it was known through 

observation of the bodies that electrical tape was used to bind the 
26

Turnages, as were certain cords. The search took place about 

24 hours after the bodies were found, however, and it is unlikely 

that all the binding materials on the bodies had been fully 

analyzed. Thus, other forms of tape might have been used and it 

was reasonable to include those forms the items to be seized. We 

do agree that any credit/debit cards or identification cards in the 

names of anyone not residing at the residence was broad, and 

that there was no specific evidence that appellant had robbed 

anyone other than the Turnages. At the same time, such items 

would have an apparently incriminating character, and would be 

seizable under the plain view doctrine. Thus, the inclusion of 

this category of items was generally unnecessary. We note that 

even if the category should have been included, it would not 

render the warrant facially deficient, or invalidate the warrant as 

a whole. (See Bradford, supra, 15 Cal.4th at pp. 1292–1293; 

People v. Joubert (1983) 140 Cal.App.3d 946, 952.)

D. The Scope of the Search Warrant Was Not Knowingly 

Violated

It is undisputed that at least three items seized from 

appellant’s residence and multiple items seized from appellant’s 

car fell outside the scope of the search warrant as written. 

Appellant focuses primarily on the day planner seized during the 

residential search which contained the address of the Morcos 

murder. For reasons that are not clear from the record, the trial 

court and counsel treated this item as if it were evidence of 

appellant’s dominion and control of the residence. This created a 

problem because Attachment B makes no reference to items 

showing appellant’s dominion and control over the residence.
27

A dominion and control provision is very common in search 

warrants. (See, e.g., People v. Balint (2006) 138 Cal.App.4th 200, 

206 [provision is “a standard feature in search warrant 

practice”].) There is no reason to believe the magistrate would 

have rejected the warrant in this case if it had included such a 

provision, or asked that the provision be stricken. Detective 

Duval testified he normally included such a provision in the list 

of property to be seized, and in hindsight believed he had 

inadvertently omitted it from this warrant because he was 

working from a different station and did not have access to the 

templates he normally used. The trial court found this testimony 

credible and we agree.

The fact remains that the provision is not in the warrant. 

None of the officers who participated in the search, with one 

possible exception, received or read a copy of the search warrant 

or affidavit. Sergeant Chris Cognac testified he had “read the 

fact that it had been signed by a judge and that we were 

searching for documents pertaining to the crime.” He later added 

he was told to look for items that would link appellant to the 

residence being searched. All the other officers also believed they 

had been told verbally to search for documents showing 

appellant’s control over the residence, but none could remember 

the specific individual who made that statement.

Trial counsel and the trial court then analyzed this 

omission as one involving good faith reliance on an oral 

representation of the warrant’s contents and analyzed this issue 

under the framework of United States v. Leon (1984) 468 U.S. 897

(Leon). We agree with appellant that the specific application of 

the “good faith” rule found in Leon is not directly applicable to 

this case. (Ibid).
28

Under Leon, the good faith exception applies when a law 

enforcement officer relies on a warrant issued by a neutral 

magistrate which is facially valid but is later determined by a 

court to lack probable cause. (Leon, supra, 468 U.S. at p. 901.)

The officer’s reliance on the warrant must be objectively 

reasonable. For example, the affidavit must not be so devoid of 

indicia of probable cause that an officer’s belief in the existence 

probable cause would be unreasonable. The mistake considered 

in Leon was one by a magistrate, and so the Leon analysis does 

not apply directly to reliance on mistaken statements of probable 

cause made by law enforcement officers.

We also agree with respondent’s contention on appeal that 

the “good faith” rule first articulated in Leon “was never intended 

to be restricted to [the] specific circumstances” of Leon. Rather, 

Leon was only one fact-specific application of the cost-benefit 

analysis that is the core of the exclusionary rule. (See Davis v. 

United States (2011) 564 U.S. 229, 238 [“The basic insight of the 

Leon [good faith] line of cases is that the deterrence benefits of 

exclusion ‘var[y] with the culpability of the law enforcement 

conduct’ at issue”].)

We further agree with respondent that the “good faith” rule 

has been expanded since Leon, to cases other than those 

involving facially valid search warrants which are subsequently 

invalidated. But, under this line of cases, the source of the 

mistake still matters. It was not until its decision in Herring v.

U.S. (2009) 555 U.S. 135 (Herring) that the Supreme Court 

applied the rule to an officer’s reliance on a mistake by other law 

enforcement personnel. In that case, two different law 

enforcement agencies were involved, one for Coffee County and 

one for Dale County. (Ibid.) This case similarly involves two 
29

different law enforcement agencies: LASD and HPD.14 The 

record is clear that LASD prepared the search warrant 

application, based on evidence LASD had developed, and 

submitted the application to a magistrate; the record strongly 

indicates that HPD officers performed the actual search of the 

residence. Herring requires that we look at the conduct of all the 

officers involved.

The HPD officers’ reliance on LASD’s statement that the 

search warrant prepared by LASD included a dominion and 

control category, was objectively reasonable and in good faith. As 

we have discussed, this is an extremely common, virtually 

routine, category for residential search warrants. There was no 

reason for HPD officers to doubt its presence, or even to seek to 

confirm that presence by requesting a copy of the warrant.

The second part of this analysis, the conduct of LASD 

personnel, is less straightforward because the record is less clear 

on LASD conduct. First, it is not clear which LASD officer told 

the HPD personnel about the content of the warrant. Detective 

Duval appears to have been at a nearby LASD station when the 

magistrate faxed back the approved warrant, and then began 

driving to the South Hoover residence. Detective Duval said he 

called officers at the residence and told them he had a signed 

search warrant and was en route. According to Detective Duval, 

that would normally be when search assignments were given. It 

14 The two agencies were, to a degree, working together. 

Thus, the attenuation present in Herring is not present here. As 

the California Supreme Court has pointed out, “the Supreme 

Court's general holding [in Herring] regarding what conduct 

triggers the exclusionary rule does not focus on the issue of 

attenuation.” (Robinson, supra, 47 Cal.4th at pp.1125–1126.)
30

is reasonable to infer that this is when the mistake occurred, that 

is, Detective Duval did not attempt to read the warrant aloud 

while en route, but relied on his (mistaken) memory of preparing 

the warrant application.15 When Detective Duval arrived at the 

Hoover residence, he may have simply repeated the mistake he 

made in the car, now engrained in his memory. We do not 

condone Detective Duval’s failure to read the warrant as 

approved (or perhaps to read it carefully), but under the 

circumstances of this case, it is at most negligence. Not only was 

the omitted category a common one which was a part of Detective 

Duval’s normal search warrant template, but inclusion of the 

category only resulted in the seizure of two documents showing 

appellant’s dominion and control of the residence: two letters 

addressed to appellant at the South Hoover address. Thus, there 

is no basis to conclude that Detective Duval deliberately inserted 

this category into the search warrant for some nefarious reason.

The record also indicates that the omission was the product 

of an unusual circumstance which was not likely to recur. 

Detective Duval prepared the warrant application at a station 

where he did not normally work, and where he had difficulty 

accessing templates. Thus, there would be no significant 

deterrent effect from excluding any evidence found that fell into 

the omitted category.

We note that the dominion and control category only 

appears to apply to two pieces of mail addressed to appellant at 

15 We note we cannot rule out an incomplete reading of the 

warrant, that is, that Detective Duval glanced at Attachment B, 

recognized the first line of the text he had written, which was 

specific to the Turnage robbery-murders and did not read further.

This would not change our conclusion.
31

the South Hoover address. The item most discussed in the trial 

court in connection with the good faith rule does not, on the 

record before us, show appellant’s dominion and control over the 

South Hoover residence. There is nothing to indicate that the

day planner displayed the Hoover address, or even information 

about the Hoover address which might support an inference of 

dominion and control.16 Rather, good faith reliance on the 

dominion and control category was used primarily to justify the 

decision to open the day planner. As we explain below, officers 

were permitted to look inside the day planner under the search 

warrant as written, that is, without the dominion and control 

category.

1. The Residence Search Through Discovery of the 

Day Planner

A number of items outside the scope of the search warrant 

were recovered in the residence search. Of most concern to 

appellant is the Morcos address found in the day planner. The 

CVS receipt and the paper with addresses of coin collectors, found 

by Sergeant Cognac, were also the subject of testimony at the 

hearing, although primarily to support the argument that the 

search turned into a general search for evidence related to the 

Morcos murder.

We agree with the trial court that it is appropriate to 

analyze the house search under the plain view doctrine. “The 

plain-view doctrine permits, in the course of a search authorized 

by a search warrant, the seizure of an item not listed in the 

16 The same is true for the CVS receipt and the foreign coin 

collectors’ addresses, the other items recovered in the residential 

search which were also discussed at length in the trial court.
32

warrant, if the police lawfully are in a position from which they 

view the item, if its incriminating character is immediately 

apparent, and if the officers have a lawful right of access to the 

object. (Horton v. California (1990) 496 U.S. 128, 135–137 [110 

S.Ct. 2301, 2307–2308, 110 L.Ed.2d 112]; Texas v. Brown (1983) 

460 U.S. 730, 739 [103 S.Ct. 1535, 1541–1542, 75 L.Ed.2d 502] 

(plur. opn.); see Minnesota v. Dickerson (1993) 508 U.S. 366, 374–

375 [113 S.Ct. 2130, 2136–2137, 124 L.Ed.2d 334].) In such 

circumstances, the warrantless seizure of evidence of crime in 

plain view is not prohibited by the Fourth Amendment, even if 

the discovery of the evidence is not inadvertent. (Horton v.

California, supra, 496 U.S. 128, 130 [110 S.Ct. 2301, 2304].)” 

(Bradford, supra, 15 Cal.4th at pp. 1293–1294.)

We begin with the second part of the doctrine first. As the 

U.S. Supreme Court has explained, the doctrine does not require 

inadvertence because “evenhanded law enforcement is best 

achieved by the application of objective standards of conduct, 

rather than standards that depend upon the subjective state of 

mind of the officer. The fact that an officer is interested in an 

item of evidence and fully expects to find it in the course of a 

search should not invalidate its seizure if the search is confined 

in area and duration by the terms of a warrant.” (Horton, v.

California, supra, 496 U.S. at p. 138 (Horton).) Thus, if an officer 

“has a valid warrant to search for one item and merely a 

suspicion concerning the second, whether or not it amounts to 

probable cause, we fail to see why that suspicion should 

immunize the second item from seizure if it is found during a 

lawful search for the first.’’ (Id. at p. 139.) Put differently, the 

officers’ interest in evidence relating to the Morcos murder, if 

any, would not alone bar application of the plain view doctrine.
33

Here, the warrant authorized the officers to search for 

credit/debit cards, identification cards, and jewelry, and so they 

could look anywhere such items might be found. All the items 

seized in this case were found in locations where cards and 

jewelry might be found, or in plain view on a piece of furniture.17 

Specifically, a card could be concealed inside a day planner of the 

sort recovered here. Thus, officers were permitted to look inside 

the day planner to see if any cards were present. We note that 

the photograph of the page with the Morcos address on it, as 

shown in the record on appeal shows several smaller scraps of 

paper resting on or attached to the page opposite the page with 

the address; the added thickness of the paper would make this 

natural place to open the day planner if one was searching for a 

concealed credit card. Testimony of some of the officers at the 

scene indicates it was also the first page of the day planner, 

which would also be a natural place to look for hidden items.

The second part of the plain view doctrine requires that the 

“incriminating character” of the seized item be “immediately 

apparent.” (Horton, supra, 496 U.S. at p. 136.) The trial court 

found that the officers “came across items that they had probable 

cause to believe were related to another crime.” Appellant 

contends there is nothing obviously incriminating about the 

address in the day planner, but does not specifically discuss the 

writing on its first page.18

17 In three instances, a bag or box containing the items was 

also seized.

18 Appellant does not argue that the CVS receipt and coin 

collector addresses were not incriminating, only that they were 

not incriminating as to the Turnage murders. He appears to 

focus on these two items as the beginning of what he 
34

In this context, “probable cause is a flexible, common-sense 

standard. It merely requires that the facts available to the officer 

would ‘warrant a man of reasonable caution in the belief,’ 

[citation], that certain items may be contraband or stolen 

property or useful as evidence of a crime; it does not demand any 

showing that such a belief be correct or more likely true than 

false. A ‘practical, nontechnical’ probability that incriminating 

evidence is involved is all that is required.” (Brown, supra,

460 U.S. at p. 742.) The items need not be “associated with a 

particular crime as a prerequisite to their seizure; . . . it is 

sufficient that the investigators have probable cause to believe 

the item is evidence of some crime.” (Kraft, supra, 23 Cal.4th at 

p. 1043.)

Sergeant Cognac did not describe his initial reaction to the 

day planner in detail, but did say that he thought it was “odd” 

that there was someone else’s address in the day planner. His 

testimony that he then “ran” the address supports an inference 

that upon first seeing the page, he believed that it might be 

useful evidence of some crime. Although not articulated by

Sergeant Cognac, the relevant page of the day planner does not 

merely include an address without an identifying name attached, 

which is somewhat odd. More significantly, the page also 

displays the words “Stealing” and “Prison.” A person of 

reasonable caution would be warranted in the belief that the day 

planner would be useful evidence of some crime, and so its 

seizure was proper.

characterizes as an expanded and tainted search for evidence 

connecting him to the Morcos murder. Accordingly, we do not 

discuss the incriminating character of these items. We consider 

appellant’s other claims below.
35

Assuming for the sake of argument that Sergeant Cognac 

did actually “run” the address and that running the address 

would constitute an investigation, that does not retroactively 

negate the facially apparent incriminating value of the page, or 

the inference that Sergeant Cognac initially recognized it as 

useful evidence of some crime.

Although not necessary to our conclusion on this claim, we 

note that substantial evidence supports finding that Sergeant

Cognac in fact learned of the significance of the address from his 

fellow HPD officers. According to HPD Detective Bradley 

Jackson, Sergeant Cognac found the day planner inside a bag and 

showed the address to Detective Jackson and HPD Detective 

Vincent Arias. They recognized it as the Morcos address. HPD 

Lieutenant Gary Tomatani testified that his best recollection was 

that he was shown the day planner by Sergeant Cognac, and he

immediately recognized the address as the Morcos address. This 

would be odd behavior for someone who already knew the 

significance of the address. More generally, Detective Duval

testified that HPD officers who were present for the search 

recognized the address as the Morcos address and advised him of 

that.

If this were the case, simply showing an item to fellow 

officers would not constitute an investigation that would bar 

application of the plain view doctrine, regardless of the 

motivation for doing so. That is especially true here, where the 

procedure for the search involved the searching officers 

contacting one of the supervising officers and showing them an 

item potentially subject to seizure. The procedure then called for 

one of the supervising officers to recover the item, if appropriate, 

simplifying the chain of custody. Specifically, the testimony 
36

indicated that although Cognac may have first located the day 

planner, it was ultimately “recovered” by Sergeant Garcia.

2. Searches after Discovery of the Day Planner

As mentioned above, after Sergeant Cognac found the day 

planner, he also recovered two items which appellant 

characterizes as related to the Morcos murder: the CVS receipt 

and the list of coin collectors’ addresses. Law enforcement 

officers searched appellant’s impounded red car on October 24, 

October 27 and October 29, 2010 and ultimately seized a 

significant number of items. Appellant moved to suppress all 

seized items, but only discussed in depth the CVS receipt and the 

coin collectors’ addresses recovered by Cognac during the house 

search and the blue coin purse with foreign coins and the black 

briefcase with documents, seized by Detective Hecht from the car 

on October 24. He characterizes these four items as related to 

the Morcos murder.

On appeal, appellant contends the trial court erred in 

denying his motion to suppress all items related to the Morcos 

murder seized after the Morcos address was found in the day 

planner, because those items are fruits of the poisonous tree and 

should have been excluded for that reason. (Wong Sun v. United 

States (1963) 371 U.S. 471.) Put differently, appellant contends 

that the discovery of the Morcos address was the “catalyst 

following which the search of the home expanded into a far 

broader search for items relating to the Morcos homicide” 

including the subsequent searches of the car and seizures of 

items within on October 24 and 27, 2010. Appellant contends 

that the search was further broadened on October 29 into a 

seizure of every item in the car that might possibly be related to 

any other crime.
37

The short answer to appellant’s argument is that we have 

found the day planner was properly seized, as set forth above. 

Thus, there is no poisonous tree.

We recognize appellant also believes both that the search 

was expanded or broadened after the discovery of the day 

planner, and that this was improper.

We do not agree that the search was “expanded” into a 

“broader” search. During the search of the residence, Cognac did 

recover two items which appellant contends are linked to the 

Morcos murder, but there is no evidence that he made a special 

effort to look for such items. When asked if he believed that he 

could search for other evidence relating to the Morcos murder 

after finding the address in the day planner, Sergeant Cognac 

replied: “Search for things in the search warrant. If they led to 

another homicide, then they led to another homicide.” Detective 

Duval acknowledged that after the Morcos address was 

discovered, a number of HPD officers mentioned that the murder 

involved the theft of foreign coins, and so the officers searching 

the residence were “also” going to be looking for foreign coins. We 

see nothing improper about this, particularly since coins would be 

found in the same size spaces where jewelry would be found, and 

the warrant specifically authorized a search for jewelry. No coins 

were in fact recovered from the residence on October 23, 2010.

Turning to the car searches, we see no significance in LASD 

Sergeant MacArthur, an investigator on the Morcos murder, 

accompanying Detective Hecht to the vehicle search on October 

24, 2010. (See People v. Carrington (2009) 47 Cal.4th 145, 167 

[officers from another jurisdiction may accompany officers 

conducting a search pursuant to a warrant without tainting the 

evidence uncovered in the process, even when the accompanying 
38

officers lack probable cause for their own search warrant].) 

Detective Hecht stated his belief that the coin purse and briefcase 

recovered on that date were incriminating as to the Turnage 

murders, but even if it turned out that they were in fact 

incriminating as to the Morcos murders, Detective Hecht’s 

seizure was permissible under the plain view doctrine.

Detective Hecht recovered very few items from the car on 

October 24, 2010, and he described the car as having “a lot of 

items” in it.19 We see nothing improper about a continued search 

of the car on October 29.20 The October 23, 2010 warrant was 

still valid on that date. (§ 1534 [“A warrant executed within the 

10-day period shall be deemed to have been timely executed and 

no further showing of timeliness need be made”].)21 Detective 

Hecht acknowledged that he was also looking for items that could 

connect appellant to any other known homicides. As we have 

discussed above, an officer is permitted to search for items for 

19 Ultimately, detectives filled four boxes with items from the 

car, which constituted only a majority of the items in the car, not 

all.

20 The car was impounded, and multiple searches in such 

situations are not uncommon. (See, e.g., People v. Superior Court

(Nasmeh) (2007) 151 Cal.App.4th 85 (Nasmeh).)

21 “As a general proposition, ‘ “[t]he Fourth Amendment does 

not specify that search warrants contain expiration dates.” ’ 

[Citation.] ‘[C]ompleting a search shortly after the expiration of a 

search warrant’—a time period governed in this state by section 

1534—'does not rise to the level of a constitutional violation and 

cannot be the basis for suppressing evidence seized so long as 

probable cause continues to exist, and the government does not 

act in bad faith.’ ” (Nasmeh, supra, 151 Cal.App.4th at p. 99.)
39

which he does not have probable cause as long as he is in a place 

where he is entitled to be; he may seize the items if they have an 

apparently incriminating character.

Although Detective Duval’s reasons for searching the car on 

October 27, 2010 are not clear, he was not present for the October 

24 search and it would certainly be acceptable for him, as an 

investigating officer in the Turnage murder case, to search the 

car personally. Although Detective Duval did recover documents 

related to the Morcos murder, it was permissible for him to 

search for such items because he was in a place where he is 

entitled to be and appellant does not dispute the incriminating 

character of the items.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.