People v. Costello

204 Cal. App. 3d 431, 251 Cal. Rptr. 325, 1988 Cal. App. LEXIS 844
CourtCalifornia Court of Appeal
DecidedSeptember 7, 1988
DocketA037327
StatusPublished
Cited by15 cases

This text of 204 Cal. App. 3d 431 (People v. Costello) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Costello, 204 Cal. App. 3d 431, 251 Cal. Rptr. 325, 1988 Cal. App. LEXIS 844 (Cal. Ct. App. 1988).

Opinions

Opinion

SMITH, J.

The superior court ordered burglary and receiving stolen property charges against codefendants Richard Lee Costello, William George Bain and Stephen Paul Rainford dismissed after granting defense motions to suppress the fruits of a warrant search on grounds that the warrant affidavit, when retested without misrepresentations made in violation of the federal Constitution under Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674] (Franks), failed to support probable cause. The People appeal from the dismissal. (Pen. Code, §§ 1238, subds. (a)(7), (c), 1538.5, subd. (a)(2), 1385, subd. (a).)

We reverse, concluding that the court went too far in striking parts of the search warrant affidavit and that the affidavit, when properly corrected and retested, supports probable cause.

Background

Evidence on the Franks hearing consisted of testimony from defendants’ joint preliminary hearing plus documents and testimony produced in the [435]*435superior court. We briefly summarize that evidence here and will set out additional details as needed in the discussion of issues that follows.

The charges arise from three 1984 burglaries occurring in Santa Rosa over a seven-week period. The first was an early morning break-in at a warehouse for the Rincon Valley Union School District (RVUSD) on October 25. Someone twisted the door handle off a steel door, apparently with a vise-grip or similar tool, and took $9,000 worth of automotive repair tools. A van, found stripped of equipment and abandoned some distance from the warehouse, was also taken.

The second break-in was discovered on the morning of November 11, at the Jolley Business Equipment Company (Jolley) at 540 Mendocino Avenue. Twin steel doors had been pried open, and a heavy instrument like a channel locks or pliers had been used to twist oíf a rounded bolt. A burglar alarm system on the doors had been bypassed. Over $20,000 worth of typewriters, word processors and other business equipment was taken.

Two days later, on November 13, an anonymous telephone caller told investigating detective Ernesto Olivares that he had been inside the home of Richard Lee Costello at 3148 Midway Drive two days before and had seen a large amount of computer and business equipment there. The caller was interested in receiving a reward but ultimately declined to get involved. Periodic drive-by police surveillance of the house after that did not reveal any suspicious activity.

The third break-in was discovered on December 11, at Montgomery High School. Someone had entered through a skylight, bypassed an alarm system and, once inside, pried open the doors to a classroom containing computer workstations and equipment. Missing was over $35,000 worth of computers, monitors, disc drives, printers and other equipment.

Just after 2 o’clock the next afternoon (December 12), Detective Olivares received a second anonymous phone tip about Costello. This caller, whose voice did not sound like the first caller’s, said that Costello was responsible for the school burglary, lived at 3148 Midway Drive, worked at Santa Rosa Luggage Company, was responsible as well for the Mendocino Avenue computer theft three weeks earlier, had those computers and property taken in the RVUSD warehouse theft stored in an outbuilding at the rear of his property, and was planning to move the property either that night or the next morning. The caller said he had just seen Costello and the property. He said that Costello used a pipe wrench on the school door handles and had used the same method of entry in the Mendocino Avenue break-in. When Olivares asked how the burglar alarm was bypassed, the caller said that [436]*436Costello used to work for an alarm company (possibly called State Alarm Co.) and knew a great deal about alarm systems. Also, said the caller, Costello had a younger sister who currently attended Montgomery High School. Olivares tape-recorded the conversation.

Armed with this new information and aware that the stolen property was supposed to be moved soon, Olivares quickly corroborated as many of the facts as he could and, sometime between 3 and 4 p.m., began typing up a statement of probable cause (hereafter affidavit) to offer in support of a search warrant for the Midway Drive premises. Meanwhile, he told Detective Gerald Smith (known as Gerald Rammer by the time of these proceedings) about the phone call and possible movement of property, and had him keep watch on the residence.

Smith began his watch at about 4 p.m. in the bedroom of a house across the street, about 75 feet away. He had no description of any particular suspect or vehicle but knew that stolen computer equipment was involved. He first saw a car pull up in front of the house and the driver go inside. Then, at about 5:30 p.m., a small green pickup with a white camper shell pulled up and backed into the driveway in front of a closed garage door, and the man driving it went into the house. Smith could see silhouettes of people walking back and forth inside the house.

About a half hour later, at twilight, the same man left the house, opened the garage door and began loading branches and other debris into the truck bed. The debris came from beside a tree, out of Smith’s view. The man also went into the garage, out of view. There was a light on in the garage. Smith did not see any computer equipment in the garage from where he stood.

Midway through loading the debris, the man came from around the side of the house carrying something covered with a blanket, put it on the truck and then loaded more debris behind it. To Smith, the object had the shape and size of a typewriter or keyboard-type computer component. It had what looked like a roller (“reel”) part on top, a drop to what could have been a keyboard, and another three-inch drop to the bottom. The owner of the house Smith was using had no prior notion of what the officer was looking for yet, when asked what he thought, said that the object looked like a typewriter.

Convinced that the object could be property taken in the high school burglary and that the man was hiding it, Smith radioed for patrol officers to position themselves at each end of the block in case the truck should try to leave. Smith had been in phone contact with Detective Olivares and knew that a warrant was being secured. He reported this information about the [437]*437truck and covered object to Olivares, who by then (about 6:45 p.m.) was at the district attorney’s office having his affidavit reviewed.

Olivares incorporated this new information into the affidavit by hand after first determining that a pickup of Smith’s description was registered to a Richard Lee Costello. A deputy district attorney signed off on the warrant at 8 p.m.; it was immediately presented to a judge and was issued.

Meanwhile, at about 7 p.m., the truck had left the driveway and was stopped by officers. As it turned out, the driver was defendant Rainford, not Costello. (Detective Smith had not been given any physical description of Costello and did not know who the driver was.) Knowing that a warrant was on the way, the officers held Rainford there and did not search the truck at that point.

Olivares and other officers executed the warrant at the Midway Drive house at 8:20 p.m. They found the suspected stolen property in both the main house and an outbuilding in back.

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People v. Costello
204 Cal. App. 3d 431 (California Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
204 Cal. App. 3d 431, 251 Cal. Rptr. 325, 1988 Cal. App. LEXIS 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-costello-calctapp-1988.