*1 Aрr. 27, No. 5664. In Bank. 1955.] [Crim. PEOPLE, BERGER, v. ALFRED Respondent,
THE
Appellant. Grupp Appellant. M.
Morris Garry, Leonard, George Charles R. Norman Olshausen and Leo R. Friedman as Amici on behalf of Appellant. Curiae Attorney Brown, General, Linn, Clarence A.
Edmund G. Attorney General, Miller Arlo Elizabеth Assistant Chief Attorneys Dis- General, Lynch, Thomas C. Deputy Smith, E. Francisco), County of William Attorney (City and San trict Reichert, Assistant Irving Jr., F. District B. Acton Attorneys, *2 (Los City Attorney Angeles), William Arnebergh,
Roger Doherty A. Police, Jones, of Bourke James Parker, H. Chief City Attorneys, Ralph Eu Camрbell, Assistant and Alan G. Attorney Coakley, F. District City Attorney, Deputy J. bank, District Attor Hunter, R. Chief Assistant (Alameda), Robert King Baldwin, C. Maury Bernard M. and John ney, Engel, on of Attorneys, Amici behalf Curiae Deputy District conspiracy for to TRAYNOR, Defendant wаs indicted J. for conspiracy to solicit petty theft and grand and commit §182; permit. (Pen. Code, a purposes without charitable appeals from the 590.) Code, He San Francisco Police § him finding jury on a verdiсt judgment of entered conviction mo denying his the order guilty on both counts and from judgment. for new of tions trial and arrest money for employed several solicitors to obtain Defendant mem- a for for wounded publiсity campaign blood donations repre- Introducing bers themselves as of the armed services. patriotic organizations the sentatives of and solicitors veterans money fifty day telephoned thirty pеrsons and asked for to print advertisements, open to a blood newspaper collection buy and center, sponsor shows, blood, radio and television provide calls, response cab In to these fare for blood donors. totalling $65,000 contributions over made to defendant. He kept money for his own use of received. most police Francisco 12, 1952, March members of the
On San attorney’s office de- department and the district entered place business, themselves and showed fendant's identified manager office a search asked them to wait warrant. She defendant, investigator attorney’s from but the the district no replied, “Well, waiting while are here there is office we wasting time, just looking things use we will start into ready getting them to what want.” For five take we investigator, police hours the and an assistant district attorney files, desks, ransacked defendant’s wastebaskets. investigator looking The testified: “We were around for evi- alleged anything . . . deuce of the commission of crime They charged.” commission of that showed the thе crime according letters, cards, records, read to the in- and, cards, vestigator, seized of thousands” of “thousands; tens letters, files, and other to documents “that seemed relevant protests, the commissiоn of the crime.” Over defendant’s they loaded papers the seized a van and them to the took attorney’s district office. municipal to the return the warrant court that
Upon the Code, §1537), the court order Pen. entered an issued it attorney property could retain the seized the district Defendant contended that the warrant was void as evidence. quash denied, motion to it. and made a petitioned superior court defendant then writ directing municipal to return the seized mandamus hearings attorney on the motion property. In the district thoroughly argued question counsel and defendant’s legality validity of warrant and the thе search and pursuant placed The warrant no it. restrictions seizure things or the on the area to searched seized and Avas general strikingly authorizing similar to the Avarrant un *3 seizures that limited searches and was сondemned Avhenthe right privacy legal protection. (See of first received Huckle ; 2 Money, 206, 207, Eng.Rep. 768, (1763) v. Wills K.B. 95 769 Entick v. 19 Carrington, (1765) ; Howell’s State Trials 1029 History Development of Lasson, The the Fourth Amend 43-50.) Constitution, pp. ment to the United States The court held that the warrant Avasvoid and that search and seizure pursuant illegal judgment quashing to it were and entered a ordering property the warrant and defendant’s returned to appeаl judgment him. No Avastaken and the became final. attorney papers The district returned defendant, the seized to during proceedings, but and unknoAvnto either the court photostats or defendant, making he had been of As them. photostats, soon as of petitioned defendant learned he superior for directing a Avrit of mandamus their de livery Although to him. the record does not disclose the proceeding, agreed result of this counsel argument at oral that the deity court announced from the bench that it Avould findings writ and asked that of judgment fact and a formal prepared. Neither prosecution, defendant nor the Iioav ever, prepared findings judgment, judgment or a and no trial, attorney entered. At defendant’s the district offered photostats in evidence to show the nature and extent 462 objections their operations. Defendant’s
of defendant’s they by a ground been had obtained on the admission of his judicial process and violation of the flagrant abuse against unreasonable searches and seizures right secure to be were overruled. necessary may of fact Although findings not of petition of a a writ mandamus support a denial 10 Carpenter Co., 307, Mut. Ins. Cal.2d 328 v. Pacific Life Superior Court, 703, 157 709 Brownell v. Cal. 761]; P.2d [74 P. Danford, 425, 157 430 Matter Cal. ; P. [108 91] [109 of 859, 103 ; Pitcher, Cal.App.2d 864 P.2d Adоption [230 322] 449]), of necessary entry judgment is to make it a a any purpose. (Berri final Superior v. effectual decision 856, Phillips Phillips, P.2d 41 8]; 860 Court, 43 Cal.2d [279 ; Willett, Pac. P.2d Southern 869, 874 Co. Cal.2d 926] [264 ; v. Superior Court, P.2d Brownell 387, 390 216 Cal. 526] [14 478, ; Kessing, P. Crim v. 89 708 Cal. 703, 91] 157 Cal. [109 Am.St.Rep. 1074, ; 23 see State Board P. 491] [26 Superior 467, Court, Cal.2d P.2d Equalization Thus, proceeding, the second mandamus not hav 4].) entry of by judgment, no effect has ing been terminated proceeding, the first mandamus and that judgment on the binding aas stands determination therefore void, illegal, that the search was and that warrant was (See papers unlawfully Dillard v. defendant’s seized. 209, 387, P.2d 11 A.L.R.2d 34 Cal.2d McKnight, ; 28 Cal.2d P.2d Krier, Krier v. 681] America, Bank Cal.2d Bernhard v. No. ; Steele 892] ; Campo ex Osborn, Statе rel. 417, 69 761] ; City ex 214, 218 A.2d State rel. Conn. Warren 687] People Miami, Fla. So.2d ex rel. Bar Chicago clay Comrs., Ill.App. 622, Park v. West 323].) N.E.2d photostats product are as much Since illegal and are as search seizure tainted it originаl (Silverthorne Lbr. papers themselves Co. United *4 States, 385, 182, 64 L.Ed. 24 319, 251 U.S. 392 A.L.R. S.Ct. [40 deception practiced by prosecution in 1426]), the this the rule adopted People Cahan, case circumvent the v. cannot ante, p. 434 [282 905]. аttorney general contends, however, that the
objection by photostats at made defendant the time the illegally argues offered in evidence late. if came too He
463
should
excluded,
defendаnt
to be
evidence is
seized
required
by
trial
present
objections
advance
his
was
kind
motion of this
suppress.
preliminary
A
motion to
an
when it
required by
Supreme Court
the United States
(Weeks
illegally
excluding
the rule
оbtained evidence
nounced
341, 58 L.Ed.
383,
v.
232
S.Ct.
States,
United
396
U.S.
[34
275
652,
834];
Segurola
States,
L.R.A. 1915B
see
United
111-112
has
106,
77,
186]),*
U.S.
72 L.Ed.
it
S.Ct.
[48
necessity of
justified
ground
been
on
it avoids the
issue of
interrupting
trial to
the collateral
determine
denied,
admissibility of
If
the evidence.
an
however,
required
de novo
trial court was
to consider
objection to
evidence at the trial
introduction
{Gouled
261,
65
States,
298,
United
255
312-313
L.Ed.
U.S.
S.Ct.
[41
266,
647];
313,
Amos v.
255
States,
United
316
S.Ct.
U.S.
654]),
thus afforded
since the defendant was
opportunities
litigate
two
the evidence
issue whether
was admissible,
objective
avoiding
in
unnecessary
an
terruption of
largely
the trial
Moreover,
defeated.
appellate
might
sought
review of the decision on motion
by
prosecution
either the
Essgee
or the defendant
Co.
States,
151,
United
514,
U.S.
67 L.Ed.
S.Ct.
917]; United States v.
Kirschenblatt,
F.2d
A.L.R.
416]),
though
even
question again
defendant could raise the
on appeal from
judgment against
the final
him.
In rеcent
years, therefore, the federal
require
courts have modified the
by
ments
allowing the trial court to
entertain
motion
for the
(Fed.
first time at the trial
Rules Crim. Proc., rule
41(e); Panzich v.
States,
871, 872;
United
285 F.
United
Johnson,
Statеs v. Leiser,
199,
16 F.R.D.
200; United
States
The and оrder arc reversed. J., J., Schauer, Gibson, J., Carter, C. concurred. SPENCE, J. I dissent. exclusionary entirely upon majority opinion rests
The majority Cahan, in day adopted by People rule this ante, 905], p. 434 P.2d only difference between the Cahan case material from present illegality one is that in Cahan the resulted any present case warrant while in the a war- the absence subsequently Tías issued which was found to techni- rant cally аgain Here the record contains abundant defective. guilt (see People evidence to show the of the defendant Berger, (Cal.App.) 514), P.2d and the trial in properly challenged all evidence accord- admitted of the prior ance with the settled rule in this state to the decision in the Cahan case. Cahan, People my dissent reasons stated For the judgment. I would affirm 905],
ante, p. 434 J., concurred. J., Edmonds, Shenk, May 25, rehearing denied petition for a Respondent’s opinion that the of the J., Spence, J., 1955. Shenk, petition granted. should *6 28, 1955.] Apr. In Bank. A. No. 22889.
[L. J. v. EDWARD Appellant, RUTH M. WORTHLEY, WORTHLEY,