Since the People do not here contest either the factual or conelusional allegations of appellant, we accept the facts as stated in appellant’s declaration filed in the court below.
Appellant was arrested and his business premises searched
Appellant moved in the superior court for an order suppressing the evidence secured as a result of the above search and seizure and for return of the property so seized. The motion was denied and defendant appealed from that portion of the order which denied the return of the seized property to defendant. The Attorney General has moved to dismiss the appeal as being from a nonappealable-order.
A person whose property has been seized unlawfully by a law enforcement agency is afforded a variety of remedies, one or more of which he may pursue, depending on the specific result he desires and his counsel’s decision as to tactics and strategy:
(1) He may move, before trial, to suppress the evidence as was done here. If that motion be denied, or even if no such motion had been made, he may object to the introduction of the evidence either at the preliminary examination or at the trial. If objection is made and overruled at the preliminary examination, he may review that action by a motion made under section 995 of the Penal Code. If unsuccessful there, he may seek relief in this court by way of a writ of prohibition. (Pen. Code, § 999a.) If still unsuccessful, he may renew his objection at the trial and, if then overruled, may raise the point on appeal from a judgment of conviction, if that should result. Under these circumstances, a denial of a pretrial motion to suppress is clearly interlocutory. Not only is the original ruling still open to reexamination in the ways just outlined but, since the sole purpose of a motion to suppress is to avoid a conviction of crime, the
(2) However, one whose property is illegally seized may desire not only to prevent its use against him in a criminal case, but also to procure its return. In that case, he may, either as an alternative to, or in conjunction with,
2
a motion to suppress, move for its return as was done here. If the property was seized under a void warrant, or if it was not the property described in a warrant, such a motion is expressly authorized by section 1540 of the Penal Code. If the property was illegally seized without a warrant, the courts have allowed a similar motion. But such a motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction.
(People
v.
Mayen
(1922)
But it is not enough that the order not be interlocutory. The right of appeal is statutory. Only such actions of the trial court may be reviewed on appeal as the Legislature has selected.
(People
v.
Valenti
(1957)
Appellant is not, however, without remedy. Since the order is not otherwise reviewable, a discretionary review by writ of mandate from this court is available. In the alternative, a property owner in appellant’s position may institute a civil action for recovery of his property (or a civil action in conversion), with a right to review as of course, by appeal from any adverse judgment in such civil action. 3
The attempted appeal from the order denying the motion to suppress and return is dismissed.
Burke, P. J., and Jefferson, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied April 22, 1964.
Notes
Nowhere, either in the record or briefs, is it made to appear what offense the officers assumed had been committed as a justification for the arrest, search and seizure, nor for what offense appellant was later indicted.
Prior to
People
v.
Cahan
(1955)
We do not here decide whether an order denying return would ever he res judicata in the subsequent civil action.