*1 July 11, 1966.] In Bank. No. 9733. [Crim. EDWARD Respondent, M. PEOPLE, Plaintiff THE Appellants. Defendants al., et BUTLER Appellants. Defendants Leib for Alton I. *2 Lynch, Attorney General, James, William
Thomas E. C. Attorney General, Zessar, Deputy and William
Assistant L. Respondent.
Attorney General, for Plaintiff and TRAYNOR, -Defendants appeal granting from orders C. J. probation they possessing after them were convicted of mari juana Safety in violation of Health and Code section 11530.
They permitting the trial contend that court erred not them by to evidence introduced at their trial show that was obtained illegal an and search seizure. Angeles County Deputy Los On October Sheriff Vaughn a warrant
Charles obtained search defendants’ home and automobile. It was issued on the basis of his affidavit he information from reliable that had confidential informer premises. of the of narcotics at the described search use that uncovered various items evidence led to defendants’ subsequent conviction. arrest hearing, At testimony defendants elicited Vaughn Deputy Sheriff that three or four occasions through under their residence and looked
he had crawled “Q. you then Now, sir, cracks the floor. He was asked: are application Judge Farley one who Q. Yes, search is that sir. And you correct? A. application you made that on the basis of the information had premises Orange underneath at 1788 obtained while Grove previous January four on those three or occasions Courtney [Deputy Attorney] is that correct? Mr. District : object minute, question. Appar- I Just a Officer. will to the trying go ently behind Counsel is the search warrant proper procedure object I this is not it. will question grounds, on those Your Honor. committing magistrate objection sustained on the
ground pursue remedy pro- defendants’ that failure by precluded vided Code sections them from At trial the warrant. defendants made a motion underlying for a to determine the facts the issuance of the warrant. The trial court denied the motion. Berger rejected ordinarily the federal that illegally
issue as to whether evidence was obtained must be raised motion before trial and held that a motion such required can made at the trial illegally obtained evidence. Several decisions District Appeal, however, have held that Courts apply when a search and case does not under a search warrant valid on its face seizure are made to attack such cases the defendant’s (People v. Mar under Penal Code sections 1539-1540. Cal.Rptr. Cal.App.2d 835, ion Cal.App.2d 62, People v. Prieto 66-67 v. Dosier 439- 57 *3 People Lepur (1959) Cal.App.2d 440 v. 175 People P.2d 914]; 802 Nelson 171 v. Cal. Phillips App.2d 356, 360 P.2d 163 v. ; People Cal.App.2d 541, 545 P.2d Thornton 721 P.2d Arata v. Superior Court 473].) provide grounds Code sections that if the
for warrant are controverted, issuance the a shall magistrate held, probable and if the finds that there believing grounds cause for the which the warrant was property or issued, if the taken was not that described in the magistrate warrant, per- must property the restore the to the from it son whom was taken. Keener Cal.Rptr. 859, we held magistrate’s ruling sustaining proceed- that a in ing under Penal 1539-1540 is Code sections not final and that may the defendant thereafter renew attack his on the warrant preliminary hearing and at the trial. Since the defend- Keener ants in the case had attacked the warrant under sec- and before at preliminary the hearing, unnecessary it was to decide whether a warrant valid on its face must be attacked under those sections before an can made at 'hearing or trial to of evidence obtained under the war- rant. We have concluded that sections 1539 and 1540 do not exception create an case and that a may therefore attack the of a warrant at preliminary hearing and at the trial whether or not he grounds 1 Section 1539 “If provides: on whieh the warrant was issued be he must controverted, to take testimony relation and writing thereto, of each testimony witness must be reduced to eight authenticated in the manner prescribed section hundred and ’ ’ sixty-nine. Section 1540 provides: “If appears the property taken is not the same as that described in the there is no probable cause believing the existence of on which the warrant was issued, must cause it to be restored to the person from ’ ’ whom it was taken. Anything it under attacked sections 1540. foregoing contrary in the decisions of the District Courts of Appeal disapproved. or in the Keener case in 1872, years
Sections were enacted exclusionary adopted rule was v. Cahan Accord 513]. n ingly, Legislature purpose enacting those sections was regulate objecting not to to the introduction person in criminal trials but to afford from evidence wrongfully expeditious remedy whom seized an recovery. Aday (See for its Cal. Court Cal.Rptr. 415, 362 P.2d provided Moreover, and 1540 purpose would the deterrent serve fitfully preclude testifying at best. It would an officer to what he course of a search under an invalid saw using warrant or from information obtained such a search (See People Berger, supra, to secure other evidence. 44 Cal. *4 459, 462; People 374, v. Roberts 47 Cal.2d 378-379 721].) It would afford no relief to a defendant from (See property
whom taken. v. Martin 755, 45 Cal.2d 759-761 Jones v. United 257, 725, L.Ed.2d States 362 U.S. S.Ct. 697, It would afford no when relief contraband, (See Aday which cannot be returned. Court, supra, 55 Cal.2d 799-800.) Since the “every opportu must afford to defendant a full and
state fair adjudication nity deprivations an of all to secure claimed of rights securing his constitutional in the of the evidence offered against (In Sterling him trial” re Sain, see Townsend v. 770]), require U.S. S.Ct. L.Ed.2d remedy ment that he must exhaust under sections 1539- broadening beyond would entail either a of the adoption statutory exceptions or the of terms when the inadequate. statutory remedy was if
Even enacted were now implement invoked to rule of the Cahan problems timing case, Thus, would difficult arise. if a de- ignorant excusably fendant were until the trial of facts to grounds on which the controvert “the warrant was issued” (Pen. Code, necessary 1539), postpone it would be either to § until the trial warrant could be determined magistrate by requirement it or to who issued waive the any him. deci- first attacked before Since
that the warrant might subject relitiga- reach would be sion the at the trial 719- (People Keener, supra, tion 720), pointless delay trial so that the valid- would be litigated could be twice. Even if defend- ity of the warrant known of for ant knew or should have trial, it be a com- before would needless warrant plication some time adjudication require of the time when he could expected magis- reasonably been that time was so near the time set for trial whether trate magis- proceeding excused before the that he should be trate. object allowing the defendant to or at trial to the introduc time at the illegally obtained without a warrant has tion of evidence proved no reason to a different rule workable. We see merely was obtained under warrant. because evidence 464: Berger, pointed out in supra, govern preliminary questions of fact that “Ordinarily determined the trial court admissibility of evidence are evidence at made to the introduction when experience of the federal courts indicates that trial, and the exception compelling why an reasons there are no illegally general the case of obtained should be ordinarily involved will be no The issues evidence. [Citations.] presented time-consuming complicated than those more example, rule, on the admis trial court when must the sibility records, claimed to confessions, business or evidence qualifications expert or other wit privileged, or on the *5 requirement hand, that a On the other nesses. motion be made to suppress inevitably the evidence would delaying criminal trial the motion was while result argued, being noticed, calendared, heard, and determined. orders are reversed. J., Peek, J., J., Tobriner, J., Burke, con- Peters, curred.
MOSK, J. I dissent. and 1540 majority emphasize that sections 1539 were years before the rule was 83 enacted (1955) 434 44 Cal.2d P.2d v. People adopted [282 Cahan chronology particu I fail to find that 905, 50 513]. significant. larly 847 (1957) Cal.App.2d 153 Superior Court 767 Arata v. decision, years 473], two Calían was decided P.2d after hearing. pointed In Arata was this denied a it out court judicial warrant (at p. 770) issuance of a search is a act that “ only judicial review of such a is and that act [t]he by law, the review specifically provided sanctioned sec- (Italics added.) 1540 of the Penal Code.” tions 1539 and ‘‘If provides: on which the Section controverted, who issued was issued [the testimony. must to take ...” search warrant] by an Arata has been followed unbroken line cases. Cal.App.2d 718, (People v. Thornton 721 [327 People Phillips v. ; Cal.App.2d P.2d 161] Cal.App.2d v. Nelson P.2d 621] Lepur Cal.App.2d P.2d v. ; People v. Cal.App. P.2d Dosier Cal.Rptr. ; People v. Prieto Cal.Rptr. ; People Marion v. Cal.App.2d 835, 838 [18 authority justify overruling I find foregoing post- persuaded decisions, I am Cahan is inadvisable to majority view, a new rule. Under the a defendant who now has achieving evidence, gratui five methods of the exclusion of tously awarded a sixth and additional whenever he ignore employ any chooses fails of the other pointed available means. out in Phillips, supra, v. ‘‘ page 545: California cases that, indicate if challenge defendant had desired of the search resulting warrant and the effect of it could (a) she (People Berger, motion to 509]) petition ; (b) for a writ of mandamus for property (People return Berger, supra) (c) made a (People motion to or exclude the evidence Alaniz, opinion] [dissenting citing Kind, 315, 316) United States v. 87 F.2d ; (d) sought a prohibition (Willson writ of Court, Also, 36]). defendant had rights certain under sec Code,...” progeny Arata and its hold unequivocally that failure to *6 pursue statutory under remedies sections pre- 1539 and 1540 a controverting cludes defendant from the facts slated in the upon affidavit which the search warrant was based. This rule is generally jurisdictions, followed other with or without comparable (E.g., statutes. see Tischler v. (1955) State 1949 Model 655, ; One Oldsmobile A.2d 657]
Md.
[111
245, 247;
v. State
1954)
O’Brien
(Okla.
State
759,
; Hernandez v. State
S.W.2d
205 Tenn.
764]
[326
Rep.
219,
;
S.W.2d
Goss
(1952) 158
Crim.
221]
Tex.
Mattingly
;
A.2d
Maryland (1951)
Md.
58]
;
Ky. 561
S.W.2d
v. Commonwealth
Seager
his sought He made no motion to the warrant. He for return
no writ mandate or destruction of the property. sought prohibition against He no writ of use of the at the trial. He made motion to or ex- ignored short, possible clude evidence. In he all of the suggested supra. Phillips, alternatives Not until underlying trial did seek to the facts he determine issuance of the warrant. majority rely exclusively, People v. heavily, almost Berger (1955) Factually, how- Berger prior
ever, inapposite, for there the municipal judge trial moved before the court who issued the denied, so, motion the warrant. His still sought superior court, before directing he a writ of mandate municipal property. court to return the seized granted, original quashed, This was warrant was and the problem records were returned. The discussed opinion prosecutor attempted arose when the to introduce into photostats evidence at trial records that had been pursuant Obviously court order. returned issue could not been to trial. reached majority merely see “no reason to a different rule obtained under a warrant.” But because evidence was point is, it, as I see that there is and should be a marked with between evidence seized and that taken without difference wrote Keener a warrant. As Justice Gibson Chief is, course, nothing supra, 723: “There novel may view that law enforcement officials in more position favorable where a warrant is obtained than where ’’ action taken without a warrant. may sufficiency If attack the a defendant the warrant at following procedures outlined in trial, without sec- interpreting sections, the cases ‘‘ position much of favorable where a warrant is obtained premonition My may is that hereafter there
vanishes. frequent he less officers, use of warrants law enforcement an un- justice. result for administration of criminal wholesome I would affirm the orders. J.,
McComb, concurred.