Petition — Emery v. Superior Court of California

FILED

NOV 19 i977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. ly Ay 797

EDWARD EMERY,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF RIVERSIDE,

INDIO DIVISION,

Respondent.

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, FOURTH

APPELLATE DISTRICT, DIVISION TWO

LOUIS M. NIVEN

A Professional Law

Corporation

1681 W. Broadway

Suite #102

Anaheim, CA 92802

(714) 772-6730

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

EDWARD EMERY,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF RIVERSIDE,

INDIO DIVISION,

Respondent.

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, FOURTH

APPELLATE DISTRICT, DIVISION TWO

LOUIS M. NIVEN

A Professional Law

Corporation

1681 W. Broadway

Suite #102

Anaheim, CA 92802

(714) 772-6730

Attorney for Petitioner

TOPICAL INDEX

Page

Table of Authorities ii

OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 6

STATEMENT OF THE CASE 7

THE EVIDENCE 8

REASONS FOR GRANTING THE WRIT 26

1. The Search and Seizure With a

Warrant Is Unreasonable if: 26

(1) The warrant is insufficient

on its face; right to move

to quash warrant 26

(2) There was no probable cause

for the issuance of the

warrant; right to traverse 27

(3) Affidavits upon which search

warrant is based contains

no competent evidence suf-

ficient to support finding

of magistrate; sufficiency

of the affidavit 30

2. Do Intentional, False, Material

Misstatements Supporting and

Affidavit for Search Warrant

Negate the Entire Search Warrant? 32

i.

3. The Evidence Seized by the

Search Warrant Should be Sup-

pressed if it Was the Product

of an Unreasonable Search and

Seizure. 33

4. A Writ of Prohibition Should

Issue From a Denial of a Motion

Under Penal Code Section 995

Where All Essential Requirements

Have Been Met Where Neither

Reasonable Nor Probable Cause

Has Been Established. 34

APPENDIX A STATUTES INVOLVED

APPENDIX B CONSTITUTIONAL PROVISIONS

APPENDIX C Judgment of Court of Appeal,

Fourth Appellate District,

State of California, Div. Two

APPENDIX D Supreme Court of the State of

California - Hearing Denied

September 28, 1977

APPENDIX E Search Warrant - Municipal

Court of Desert Judicial

District - County of River-

side, State of California

39212

APPENDIX F Affidavit for Search Warrant

APPENDIX G Affiant's Declaration

Elwin Summers - Attachment 1

APPENDIX H Source of Information

Attachment 2

APPENDIX I Sources of Information

Attachment 3

ii.

TABLE OF AUTHORITIES

Cases Page

Aguilar v. State of Texas (1964)

378 U.S. 108 31,

Badillo v. Superior Court (1956)

46 Cal.2d 269, 294 P.2d 23 36,

Beckers v. Superior Court (1970)

9 Cal.App.3d 953, 88 Cal.Rptr. 602

Carpio v. Superior Court (1971)

19 Cal.App.3d 790, 97 Cal.Rptr. 186

Levy v. Superior Court (1973)

31 Cal.App.3d 427, 107 Cal.Rptr. 384

Morris v. Superior Court of Merced

Co. (1976) 57 Cal.App.3d 521

129 Cal.Rptr. 238

People v. Bernstein (1959)

51 Cal.2d 655, 335 P.2d 669

People v. Collins (1970)

1 Cal.3d 658, 83 Cal.Rptr. 179

People v. Cook (1976)

64 Cal.App.3d 354, 134 Cal.Rptr. 484

hearing granted, Crim. No. 19804

January 27, 1977 (Cal.Sup. Ct.)

People v. Garcia (1968)

265 Cal.App.2d 94, 71 Cal.Rptr. 102

People v. Myers (1972)

6 Cal.3d 811, 100 Cal.Rptr. 612,

494 P.2d 684

iii.

28

35

34

32

38

- Sa Tue

Page Statutes Page

People v. Pierce (1967) a California Penal Code

66 Cal.2d 53, 56 Cal.Rptr. 817 35

§ 995 5S, 7, 25, 34

People v. Scoma (1969)

71 Cal.2d 332, 78 Cal.Rptr. 491 § 1525 7, 30

455 P.2d 419 25, ii,

38, 39 § 1538.5 7, 19, 25

People v. Stout (1967) § 1538.5(a) (2) 19, 25

66 Cal.2d 184, 57 Cal.Rptr.

424 P.2d 704 31 § 1539 7

People v. Tillman (1965) § 12020 25

238 Cal.App.2d 134,

47 Cal.Rptr. 614 32 | 28 U.S.C. § 1257(3) 2

Pittman v. Superior Court (1967) ef 28 U.S.C. § 2101 (c) 3

256 Cal.App.2d 795,

64 Cal.Rptr. 473 35

. . Constitutions

Polos v. Superior Court (1959)

175 Cal.App.2d 210, 345 P.2d 981 36

Peteutiy hieeeten Court (1990) California Constitution, Ann.,

v. Su io Art. I, Section 13

50 Cal.2d 812, 330 P.2a 39 36, 38 | 7, 30

United States Constitution

Rogers v. Superior Court (1955) Fourth Amendment 6. 30

46 Cal.2d 3, 291 P.2d 929 36 | 4

Rollins v. Superior Court (1963)

223 Cal.App.2d 219,

35 Cal.Rptr. 734 36

Theodor v. Superior Court of Orange

Co. (1972), 8 Cal.3d 77, 104

Cal.Rptr. 226, 501 P.2d 234 27, 32,

33

Williams v. Superior Court (1969)

71 Cal.2d 1144, 80 Cal.Rptr. 747 35

iv.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

EDWARD EMERY,

Petitioner,

Vs .

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF RIVERSIDE,

INDIO DIVISION.

Respondent.

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, FOURTH

APPELLATE DISTRICT, DIVISION TWO

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Edward Emery, petitioner herein, prays

that a writ of certiorari issue to review

the decision of the Court of Appeal of the

ms

State of California, Fourth Appellate Dis-

trict entered in the above entitled case

on August 3l, 1977.

OPINIONS BELOW

The Court of Appeal of the State of

California, Fourth Appellate District,

Division Two, rendered no opinion when

said court denied petitioner Edward

Emery's Petition for Writ of Mandate/

Prohibition on August 3l, 1977.

The Supreme Court of California, on

September 28, 1977 denied petitioner

Edward Emery's Petition for Hearing before

that court.

JURISDICTION

The judgment of the Court of Appeal of

the State of California, Fourth Appellate

District, Division Two, was entered on

August 31, 1977 (Appendix C, infra page

C-1). A timely petition for hearing be-

fore the California Supreme Court was de-

nied on September 28, 1977, (Appendix D,

infra page D-l). The jurisdiction of the

Supreme Court is invoked under Title 28

U.S.C. § 1257 (3) to wit:

2.

the

Final judgments or decrees rendered by

highest court of a State in which a

decision could be had, may be reviewed by

the

and

Supreme Court as follows:

(3) By writ of certiorari, where the

validity of a treaty or statute of the

United States is drawn in question or

where the validity of a State statute

is drawn in question on the ground of

its being repugnant to the Constitu-

tion, treaties or laws of the United

States, or where any title, right,

privilege or immunity is specially

set up or claimed under the Constitu-

tion, treaties or statutes of, or com-

mission held or authority exercised

under, the United States.

For the purposes of this section, the

term "highest court of a State” in-

cludes the District of Columbia

Court of Appeals.

Title 28 U.S.C. § 2101l(c) to wit:

(c) Any other appeal or any writ

of certiorari intended to bring any

judgment or decree in a civil action,

3.

Suit or proceeding before the Supreme

Court for review shall be taken or ap-

plied for within ninety days after the

entry of such judgment or decree. A

justice of the Supreme Court for good

cause shcwn, may extend the time for

applying for a writ of certiorari for

a period not exceeding sixty days.

QUESTIONS PRESENTED

Question l.

Is the search and seizure with a war-

rant unreasonable if?

(1) The w.rrant is insufficient on its

face; right to move to quash;

(2) There was no probable cause for

the issuance of the warrant; right to

traverse;

(3) Affidavits upon which search war-

rant is based contains no competent evi-

dence sufficient to support findings of

magistrate.

Question 2.

Do intentional, false, material mis-

statements supporting an affidavit for

4.

search warrant negate the entire warrant?

Question 3.

Should the evidence seized by the

search warrant be suppressed if it was

the product of an unreasonable search

and seizure?

Question 4.

Should a Writ of Prohibition issue

from denial of a motion under Penal Code

§ 995 where all essential requirements

have been met; where neither reasonable

nor probable cause has been established?

(1) Did respondent act in excess of

its jurisdiction where the informa-

tion to be set aside is in absence

of strong suspicion of guilt of

accused?

(2) Did respondent act in excess of

its jurisdiction if commitment is

in absence of evidence of occurrence

of crime or connecting the defendant

with a crime?

(3) Did respondent act in excess of

its jurisdiction where commitment

Se

is based on incompetent evidence or

evidence illegally obtained?

(4) Did respondent act in excess of

its jurisdiction if the prosecution

has failed to show that defendant has

committed the crime charged in order

to establish sufficient cause to hold

defendant to answer?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The United States Constitution -

Amendment IV

The right of the people to be secure

in their persons, houses, papers, and ef-

fects, against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things to

be seized.

The California Constitution likewise

provides against unreasonable searches:

The right of the people to be secure

in their persons, houses, papers, and

6.

effects against unreasonable seizures and

searches may not be violated; and a war-

rant may not issue except on probable

cause, supported by oath or affirmation,

particularly describing the place to be

searched and the persons and the things

to be seized.

California Constitution, Ann., Art. I,

Section 13 (Deering Supp. 1977).

The following statutory provisions of

the California Penal Code are applicable

and are set out verbatim in the appendix:

California Penal Code, Section 995

California Penal Code, Section 1525

California Penal Code, Section 1538.5

California Penal Code, Section 1539

STATEMENT OF THE CASE

This is a criminal action in which a

newly formed crime task force, initially

federally funded, obtained a search warrant

that was not only insufficient on its face

but one for which there was no probable

cause for the issuance of the search war-

rant, which warrant authorized search for

7.

but two weapons, and then, armed with that

warrant, some six (6) to eight (8) members

of this newly formed crime task force, went

to the residence of petitioner, a man who

had been a continuous resident for some

years, a man with apparently no prior po-

lice problems, a man known for many years

as a gun collector, with no information,

implicitly or explicitly, that he was

changing his residence, found the weapons

the subject of the complained of search

warrant and thereafter continued search-

ing, even into a closed safe, taking pos-

session of some 50+ weapons.

THE EVIDENCE

On May 10, 1976, and for some years

prior, petitioner had been a resident of

Eagle Mountain, California, in business

in Eagle Mountain, California, a gun col-

lector for many years, apparently had no

prior police problems and had taken and

was taking no steps, implicitly or ex-

plicitly, to change any of the above facts.

On or about March or April, 1976, the

Coachella Valley Major Crimes Task Force

was formed, with initial support from

8.

federal funds.

Elwin Summers, a member of the Coachella

Valley Major Crimes Task Force, on May 10,

1976, submitted an Affidavit for Search War-

rant (Appendix F, infra page F-1l1) together

with three attachments: Source of Informa-

tion (Informant's Reliability) (Appendix H,

infra Page H-1), Sources of Information

(Informant-Official Source) (Appendix I,

infra page I-1) and Affiant's Declaration

(Appendix G, infra page G-l1). Said docu-

ments were submitted by Elwin Summers with

the knowledge and expectation that the Mag-

istrate would read, review and rely upon

said documents in determining whether the

search warrant requested, for two weapons,

a rifle and apistol, search warrant number

39212 (Appendix E, infra page E-1), would

be issued. The Magistrate did rely on these

documents, affidavits and representations,

and the court did, relying thereon, issue

the requested search warrant.

Since the search warrant is based on the

referenced three attachments, the sufficiency

of said attachments must be examined.

1. Source of Information (Informant's

Reliability)

9.

This document was intended to support

the requested search warrant regarding

item number 1 thereof, "45-70 Cal. Spring-

field Rolling Block rifle, S/N #180470"

(Count I of the Information). The infor-

mation set forth therein was admittedly

based upon that from an informant whose

reliability was untested, but attempted

to justify the issuance of the warrant

regarding this item because: "...infor-

mation received from this informant estab-

lishes the existence of an emergency or

has been corroborated as to essential mat-

ters in that ...." (Emphasis added.)

Thus, one might reasonably expect some

facts reflecting "emergency" or "corrobo-

ration." This document is totally devoid

of any facts showing, explicitly or by im-

plication, either emergency or corrobora-

tion.

When Elwin Summers was questioned

about the emergency and corroboration, he

acknowledged there were none; that Peti-

tioner was a gun collector, there was no-

thing odd about a gun collector collecting

guns, that Petitioner had a business in

Eagle Mountain and, in addition, worked

10.

in Eagle Mountain and that he had neither

information nor belief that Petitioner

was leaving the area or moving.

Prior to the submission of the affi-

davits to the Magistrate, the law enforce-

ment officer, Elwin Summers, was aware

regarding the informant, Lupe Chavarria,

that;

said informant had never been used

before as an informant and had a criminal

background of burglary, receiving stolen

property and heroin use and sale and more

recently, some 10 days before the com-

plained of search warrant was sought, was

aware that contraband was found at his

residence and that he had traded stolen

property for narcotics.

The only facts alleged with regard to

the placement of the rifle were from the

confidential informant.

When the law enforcement officer,

Elwin Summers, was questioned as to why

he did not relate to the Magistrate on

May 10, 1976, (1) the lack of emergency,

(2) the lack of corroboration and (3)

the lack of reliability of the informant,

aa.

he merely indicated he reviewed all with

the District Attorney.

If the factual misstatements were de-

leted, probable cause could not be estab-

lished, only the following remaining of

the facts detailed in Attachment No. 2

to the search warrant affidavit: "A

record search indicated that a Springfield

45-70 Rolling Block rifle, S/N #180470

was stolen on 3-22-76 from a Tom Allchin

at Ave. 52 and Van Buren, Coachella,

California. C1-76-082-019.”"

The deliberate omission by Elwin Sum-

mers -- apparently condoned or authorized

by the District Attorneys' office, assum-

ing it was aware of the facts -- of mate-

rial facts, resulted in an affidavit that

was factually inaccurate; and if there

had not been such omissions and all infor-

mation had been factually accurate, the

resulting document would not have estab-

lished probable cause with regard to this

item.

2. Source of Information (Informant-

Official Source)

12.

This document was intended to support

the requested search warrant regarding

item number 2 thereof ("22 Cal. Revolver,

Blue steel 3" barrell, 7 shot with black

plastic grips" -- Count II of the Informa-

tion) and was to be used as evidence of

information from an official source; yet,

in this instance, the alleged official

source, Deputy James Bowen, supplied no

information himself but merely allegedly

stated to Elwin Summers what... Tonya

Tollison, an untested informant with numer-

ous admitted criminal acts, stated to him

[Bowen] ... (Emphasis added.) None of

the information in this document was based

on the personal knowledge of James Bowen;

instead, it was based on the alleged state-

ments by Tonya Tollison to James Bowen,

the supposed official source. It is there-

fore submitted that the informant was not

James Bowen, but instead, Tonya Tollison,

an unreliable, untested informant, herself

under arrest at the time of the alleged

statements, statements which were contra-

dicted by the same Patricia Comer referred

to in this document; not an “official

source."

13.

When Deputy James Bowen was questioned

about the events that took place on April

30, 1976, the date cof the alleged state-

ments by Tonya Tollison and Patricia

Comer, and ten days before issuance of the

complained of search warrant, number 39212,

he indicated that:

a. Some 10 days before the com-

plained of search warrant was sought, he

arrested Tonya Tollison for burglary, and

when interviewed that same day she ad-

mitted three burglaries and trading stolen

property to Lupe Chavarria, the confiden-

tial informant regarding item number l,

for narcotics; that Patricia Comer sold

the 22 caliber revolver to Ned Emery;

that she also admitted theft of two guns

from her parent's residence; that in Tonya

Tollison's suitcase he found a pill bottle

containing tablets, "double scored," which

appeared to be minibennies. Prior to the

arrest, he knew Tonya was on drugs and had

committed various burglaries. On the same

day he also interviewed Patricia Comer,

who denied any knowledge of burglaries and

denied that she sold any gun to Petitioner,

and stated that Tonya Tollison was lying

14.

and was trying to implicate her because

Tonya Tollison disliked her.

b. When questioned about the

credibility of both girls due to the con-

flicts, he stated: (1) “I would weigh

amything either one of them said to me

with a lot of care” and (2) "... I tried

-.." but there "... was no way I could

prove or disprove which one was telling

the truth and who wasn't."

Deputy James Bowen also testified that

before May 10, 1976, the day the com

plained of search warrant was requested,

Elwin Summers was aware of all the fore-

going.

The evidence is substantial and uncon-

tradicted that before May 10, 1976, Elwin

Summers had full knowledge of the (1)

criminal background of Tonya Tollison,

Patricia Comer and Lupe Chavarria; (2)

inter-relationship of these three people;

(3) denial by Comer of the allegations

of Tollison as they related to Petitioner

and the pistol; (4) denial by Comer of

any theft and denial of any sale to Peti-

tioner; (5) denial of Petitioner of any

15.

wrongdoing; (6) fact that James Bowen

did not recall knowing whether Pat Comer

or Tonya Tollison was telling the truth;

and (7) involvement of Tonya Toliison

and Pat Comer and Lupe Chavarria in drugs.

When Elwin Summers was questioned

about why he failed to inform the court

of (1) the unreliability of Tonya Tolli-

son, (2) the conflicts between Tonya

Tollison and Patricia Comer and (3) the

denial of Petitioner, in effect confirmed

by the statements of Patricia Comer, he

offered no satisfactory answer.

If the factual misstatements were de-

leted, probable cause could not be estab-

lished; the document would be blank. If

all material information were included,

probable cause could not be established.

The deliberate omission by Elwin Sum-

mers of material facts -- resulted in an

affidavit that was factually inaccurate;

and if there had not been such omissions

and all information had been factually

accurate, the resulting document would not

have established probable cause with re-

gard to this item.

16.

3. Affiant's Declaration

This document was intended as the dec-

laration of Elwin Summers, and said decla-

ration was based for the most part upon

the other two attachments referred to in

items 1 and 2 above.

If we delete from the declaration of

Elwin Summers that information based on

the other two attachments for the reasons

set forth above, the following remains:

"Information from Deputy Bowen, Riverside

Sheriff's Office, Eagle Mtn.,; is that he

has seen a safe inside Emery's residence

and that Emery is a gun collector and

keeps guns in said safe." Probable cause

cannot be established by this.

What does appear quite clear is that

Elwin Summers, in charge of this investi-

gation by the newly formed Coachella

Valley Major Crimes Task Force, was over-

zealous in his desire to make a “bust”

and, as a result, intentionally deleted

information, thereby resulting in factual

misstatements. These deliberate omissions

of material facts resulted in an affidavit

that was factually inaccurate, and it be-

came the People's burden "to show proper

7.

justification." The People failed to meet

this burden.

Thereafter, on May il, 1976, officers

James Bowen, Elwin Summers, Jim Kennedy and

others (a total of six to eight officers)

went to the residence of Petitioner with

search warrant number 39212, allegedly seek-

ing but the two weapons, neither of which

was illegal to possess, from this long-time

resident and businessman, who, from the data

set forth in the attachment in support of

said search warrant, was a gun collector and

did allegedly buy the guns -- a man who, ap-

parently, despite iis standing in the com-

munity, was not questioned about the guns,

the attachments in support of the warrant

being totally silent in that regard.

No one testified that Petitioner was

asked for the two guns, or either of them;

yet both officers' James Bowen and Elwin Sum-

mers testified to Petitioner's cooperative

attitude and the fact that he told them when

they entered the residence where the rifle

was and that: "If you wanted the rifle, all

you had to do is ask." and may have told

them as well where the pistol was,

18.

The testimony of officer Summers and

various other officers also establish that

the rifle and the pistol, the only items

the subject of the complained of search

warrant, were in fact both found and lo-

cated before the other items were found

and located. However, after the said rifle

and pistol were both found and located,

the officers continued searching the resi-

dence and in the process opened and

searched a large standup safe in which

were located many weapons, including the

sawed-off shot gun for which Petitioner

is charged herein.

When the safe was opened the sawed-

off shot gun was not in plain view ... it

was hard to distinguish from the handguns

to the shot gun because of the size ...,

the sawed-off shot gun was found only

after a search of the safe.

After the arrest, the Petitioner ap-

peared at a Preliminary Hearing and a Mo-

tion under Penal Code § 1538.5 in Munici-

pal Court and a renewed § 1538.5 Motion in

Superior Court. At the Preliminary Hearing,

the evidence presented did not establish

the occurrence of the offenses charged or

19.

reasonably connect Petitioner to any

criminal offense.

(1) Count I of the Information:

Receiving Stolen Property (a rifle)

No credible evidence was produced or

offered in which Petitioner was shown to

have known or reasonably suspected that

the subject rifle was stolen. It was well

known that Petitioner is a gun collector.

Normally in a charge such as this, a sig-

nificantly low price is paid for merchan-

dise reflecting actual or constructive

knowledge of the item's stolen nature.

Here, however, Petitioner paid $100 for

the rifle. No evidence was presented indi-

cating that the offer to sell the rifle

for $200 and the actual sale price of

$100 should have or did place Petitioner

on notice of the rifle's stolen character.

Moreover, Petitioner, himself, was quoted

by the prosecution's witness, Officer

Elwin Summers, as having steadfastly de-

nied any knowledge of the stolen charac-

ter of the evidence seized. Petitioner's

denial was affirmed by the prosecution's

informant, Lupe Chavarria, the party who

20.

sold the said rifle to Petitioner, who

stated that: he told Petitioner the

rifle was his and said nothing about its

being "hot", "The only thing that I told

him was that the gun was mine. I didn't

tell him the gun was stolen. He didn't

know the gun was stolen or anything like

that."

In opposition to the testimony of

Chavarria, the confidential informant,

indicating Petitioner had no knowledge of

the illegal nature of the rifle, was the

testimony of Patricia Carol Comer Wameling

(hereinafter Comer), who testified that

Petitioner had knowledge of the illegel

nature, yet this same Patricia Comer also

testified that as to the rifle, she could

not identify it; that it appeared to be

just an old rifle; that Chavarria had a

number of rifles in the trunk of his car

so she did not know exactly which one he

sold; that she was not paying much atten-

tion; that she could not see which rifle

was taken to the house because it was

wrapped up in a blanket; that she could

not hear all words spoken; that she traded

immunity from prosecution for testimony

21.

against Petitioner.

Yet, this same Patricia Comer's testi-

mony indicates that Petitioner had knowl-

edge, which was disputed by the prosecu-

tion's confidential informant, Lupe

Chavarria.

To base probable cause upon the dis-

puted testimony of such a witness as Comer

stretches the law beyond reason. The com-

ments of witness Chavarria, with credi-

bility never questioned by the People, sup-

porting Petitioner's contention of lack of

knowledge, are direct and firsthand. That

being the case, it cannot be said that, as

a matter of law and upon the foregoing facts,

probable cause existed to hold appellant

on Count I of the Information.

(2) Count II of the Information:

Receiving Stolen Property (a revolver)

The revolver (or pistol) was purchased

by Petitioner for $10 after an offer to

sell it to him for $20. Here, however, the

the supposed seller, witness Comer, testi-

five she told Petitioner the pistol was

stolen.

22.

Significantly, Comer, after having been

fully advised of her rights and then having

waived them, some 10 days prior, denied she

sold Petitioner anything. Moreover, her

credibility is in serious question: she

has openly admitted having committed at

least six or seven burglaries and to having

been involved in narcotics. The law en-

forcement authorities acknowledged they

would not believe anything she said without

exercising great care.

During testimony, Comer was unable to

describe the pistol allegedly sold to Peti-

tioner with any degree of satisfaction.

It is a basic requirement that not only

must the thief be identified but the stolen

article as well. It would have been impos-

sible for a reasonable person to conclude

that there was, in fact, a crime committed,

and by this Petitioner, based upon evidence

presented at the preliminary hearing herein.

The only testimony or other evidence pre-

sented indicating a guilty knowledge by

Petitioner is that testimony of Comer al-

luded to above. When measured against

the denial of Petitioner, here, against

23.

Petitioner's good reputation in the com-

munity, and knowing the lack of credibil-

ity of Comer, her criminal and narcotic

background, her inability to identify the

pistol and the self-serving nature of her

testimony, there was not probable cause

to bind Petitioner over on Count II of

the Information.

(3) Count III of the Information:

Unlawful Possession (of a shotgun)

This item was not listed in the origi-

nal search warrant herein, number 39212,

and was not in "plain view."

The testimony of Officers James Bowen

and Elwin Summers indicated that the sawed-

off shot gun was found in the large closed

safe, after the pistol and rifie were

already found and located; that the safe

had a lot of guns ia it and chose guns

were removed before the shot gun was found,

and that the sawed-off shot gun was found

only after a search of the safe, the sawed-

off shot gun not being in plain view.

If the only substantial evidence sup-

porting the commitment was obtained in

24.

violation of the Fourth Amendment to the

United States Constitution, Petitioner is

held to answer without reasonable or prob-

able cause. People v. Scoma, 71 Cal.2d

332, 335, 78 Cal.Rptr. 491, 493, 455 P.2d

419 (1969). Such being the case, the evi-

dence so obtained cannot be considered as

establishing the offense of unlawful pos-

session of a shotgun (Penal Code. § 12020).

(Appendix A, infra, page A-14 to A-18)

THE RULING BELOW

The Superior Court of Riverside County,

State of California, Indio Division in the

case entitled People of the State of Cali-

fornia v. Edward Robert Emery, docket num-

ber IND CR 5340, denied defendant's mo-

tions under California Penal Code, §§ 995

and 152°%.5 respectively, heard on or about

July 5 and 6, 1977.

On or about July 13, 1977, Edward

Robert Emery sought review of the Superior

Court decision denying defendant's motions

hereinabove and filed with the Court of

Appeal of the State of California for the

Fourth Appellate District, Division Two,

a Petition for Writ of Mandate/Prohibition

and Request for Stay.

2s.

On August 31, 1977, the Court of Appeal

of the State of California for the Fourth

Appellate District, Division Two, denied

Edward Robert Emery's Petition for Writ of

Mandate/Prohibition and vacated the stay

order issued by said court on July 14,

1577. (Appendix C, infra page C-l).

On or about September 12, 1977, Peti-

tioner herein, Edward Robert Emery, filed

with the California Supreme Court a Peti-

tion for Hearing and Temporary Stay. On

September 28, 1977, the California Supreme

Court denied hearing on said matter (Ap-

pendix D, infra page D-l).

REASONS FOR GRANTING THE WRIT

l.

The Search and Seizure With a Warrant

Is Unreasonable if:

(1) The warrant is insufficient on its

face; right to move to quash warrant

The Penal Code of California, § 1538.5

(a) (2) (Deering 1971), provides, inter

alia, for the right of a defendant to move

to quash a warrant: (Appendix A, infra

pages A-l and A-2).

26.

In appropriate circumstances, the

property seized by law enforcement must

be restored to the dispossed:

If it appears that the property

taken is not the same as that de-

scribed in the warrant, or that there

is not probable cause for believing

the existence of the grounds on which

the warrant was issued, the magis-

trate must cause it to be restored

to the person from whom it was taken.

Penal Code, § 1539 (Deering 1971).

(2) There was no probable cause for

the issuance of the warrant; right tc

traverse

By this time, it is well established

in California that a defendant may look

into the supporting affidavit to a warrant

to inquire as to the presence of suffi-

cient probable cause to believe the exis-

tence of the allegations used therein as

the basis for the warrant's issuance. The

leading case i: this regard is Theodor v.

Superior Court of Orange County, 8 Cal.3d

77, 100-101, 104 Cal.Rptr. 226, 243, 501

P.2d 234 (1972).

Associate Justice Gargano restated

the rule in Theodor and summarized the

27.

present law in the recent case of Morris

v. Superior Court of Merced County, 57

Cal.App.3d 521, 525-28, 129 Cal.Rptr. 238,

241-42 (1976), in the following language:

It now is settled that pursuant

to a 1538.5 suppression motion a person

charged with a crime founded upon

evidence adduced through the execu-

tion of a search warrant may go be-

hind the face of the supporting affi-

davit in an effort to prove that there

was no probable cause for the issu-

ance of the warrant. (Theodor v.

v. Superior Court, [1972] 8 Cal.3d

77, 90-95, 104 Cal.Rptr. 226, 501

P.2d 234) Therefore, an accused

may show that the affidavit contains

factual misstatements or material

factual omissions which could have

had an adverse effect upon the normal

inference-drawing process of the

magistrate.

If the factual misstatements are

not intentional and are the result of

reasonable conduct, they are retained

in the document and probable cause is

tested by what appears upon the face

of the affidavit; on the other hand,

if the factual misstatements, though

not intentional, are the result of

negligent conduct, they must be ex-

cised and probable cause tested from

the remaining information. (Theodor

v. Superior Court, supra, 8 Cal.3d

77, 95-101, 104 Cal.Rptr. 226, 501

P.2d 234) Likewise, if material fac-

tual omissions are not intentional

28.

and are reasonable under the circum-

stances, the omitted matters are dis-

regarded and the existence of prob-

able cause is tested by whatever

appears upon the face of the affi-

davit; if the failure to include

material information, though not

intentional, is negligent, the

omitted facts are added to the affi-

davit and probable cause is tested

in light of the additional informa-

tion. (People v. Barger [1974]

40 Cal.App.3d 662, 668-669,,115 Cal.

Rptr. 298.)

Left unanswered is the funda-

mental question which arises when

factual misstatements are inten-

tional. (Theodor v. Superior Court,

supra, 8 Cal.3d 77, i0l, fn. 14, 104

Cal.Rptr. 226, 501 P.2d 234), or

when material information is omitted

deliberately (People v. Barger, supra,

40 Cal.App.3d 662, 669, 115 Cal.Rptr.

298).

It is uncontestable that an offi-

cer who is seeking a search warrant

has a duty to disclose to the magis-

trate all material facts relevant to

the issue of probable cause. (People

v. Barger, supra, 40 Cal.App.3d 565,

668, 115 Cal.Rptr. 298; People v.

Legard [1970] 12 Cal.App.3d 1006,

100)

29.

In short, the detective's delib-

erate omission of material facts re-

sulted in an affidavit that was fac-

tually inaccurate. (Theodor v.

Superior Court, supra, 8 Cal.3d 77,

96, fn. ll, 104 Cal.Rptr. 226, 501

P.2d 234, see also United States v.

Averell, supra, 296 F.Supp. 1004,

1018; cf. People v. Webb [1973] 36

Cal.App.3d 460, 469-471, 111 Cal.

Rptr. 524), and it became the Peo-

ple's burden "to show proper justi-

fication" (Theodor v. Superior Court,

supra, 8 Cal.3d 77, 102, 104 Cal.Rptr.

226, 501 P.2d 234). The People failed

to meet this burden, and we have no

alternative but to order the supres-

sion of the evidence.

(Emphasis added.)

(3) Affidavits upon which search war-

rant is based contains no competent evi-

dence sufficient to support finding of

magistrate.

The United States Constitution, amend.

IV, California Constitution, art. I, Sec-

tion 13, and Penal Code, Section 1525, all

indicate that

a search warrant cannot be issued

but upon probable cause, supported by

affidavit, naming or describing the

person, and particularly describing

the property and the place to be

searched.

30.

A search warrant is issued without

probable cause, and therefore in violation

of constitutional proscriptions, when the

affidavit upon which it is based contains

no competent evid ce sufficient to sup-

port the finding of the magistrate. Peo-

ple v. Scoma, 71 Cal.2d 332, 78 Cal.Rptr.

491, 493, 455 P.2d 479 (1969); People v.

Stout, 66 Cal.2d 184, 193, 57 Cal.Rptr.

152, 158, 424 P.2d 704 (1967).

The basic criteria for determining the

constitutional sufficiency of an affidavit

supporting a search warrant is set forth in

in Aguilar v. State of Texas, 378 U.S. 108,

114 (1964):

Although an affidavit may be based

on hearsay information and need not

reflect the direct personal observa-

tions of the affidavit, the magistrate

must be informed of some of the under-

lying circumstances from which the

information concluded that the nar-

cotics were where he claimed they

were, and some of the underlying cir-

cumstances from which the officer con-

cluded that the informant, whose

identity need not be disclosed, was

credible or his information reliable.

Federal standards must be applied by

the state courts in determining the

31.

sufficiency of the affidavit upon which

a search warrant can issue. People v.

Tillman, 238 Cal.App.2d 134, 47 Cal.

Rptr. 614, 616-17 (1965).

2.

Do Intentional, False, Material Mis-

statements Supporting an Affidavit for

Search Warrant Negate the Entire Search

Warrant?

It may be argued that the intentional,

false, material misstatements supporting

the search warrant herein should merely

be excised from the search warrant; and

the probable cause would be tested upon

the remaining statements of the affidavit.

People v. Cook, 64 Cal.App.3d 354, 134 Cal.

Rptr. 484, 488 (1976), hearing granted,

Crim. No. 19804, January 27, 1977 (Cal.

Sup. Ct.). A careful analysis of the

strong dissent of Justice Stephens, in

Cook is enlightening. It is apparent from

a reading of the case that the California

Supreme Court may shortly overturn Cook

as not following the intent of Theodor

v. Superior Court, supra, 8 Cal.3d 77,

104 Cal.Rptr. 226, 501 P.2d 234 (1972).

32.

Justice Stephens' dissent points out

that Theodor only allowed excision from

the affidavit[s] supporting a search war-

rant when the misstatement[s] was [were]

reasonable errors made in good faith, or

negligent mistakes. "...[E]xpressly left

unresolved [was] the issue of whether its

excision guidelines applied to the use of

intentional misstatements." 64 Cal.App.

3d at 3___, 134 Cal.Rptr. at 492, citing

Theodor v. Superior Court, supra, 8 Cal.3d

at 101 n. 14, 104 Cal.Rptr. at 243 n. 14,

501 P.2d at 251 n. 14. Though Theodor did

not settle the question of intentional

misstatements, Justice Stephens weaves the

reasoning of Theodor and Aguilar v. Texas,

supra, 378 U.S. 108, lil, 84 S.ct. 1509,

1512, 12 L.Ed. 723, 727 (1964) together

to show the reasoning which would lead to

his conclusion that the entire search

should thus be negated.

3.

The Evidence Seized by the Search War-

rant Should be Suppressed if it Was the

Product of an Unreasonable Search and

Seizure.

33.

Terry v. Ohio, supra, reaffirmed the

settled principles that “a search which

is unreasonable at its inception may

violate the Fourth Amendment by vir-

tue of its intollerable intensity and

scope" and that the "scope of the

search must be ‘strictly tied to and

justified by' the circumstances which

rendered its initiation permissible."

(392 U.S. at PP. 17-19, 8 S.Ct. at p.

1878.)

People v. Collins, 1 Cal.3d 658,

83 Cal.Rptr. 179, 181 (1970)

é.

A Writ of Prohibition Should Issue

From a Denial of a Motion Under Cal. Penal

Code Section 995 Where All Essential

Requirements Have Been Met Where Neither

Reasonable Nor Probable Cause Has Been

Established.

(1) Did respondent act in excess of

its jurisdiction where the information to be

be set aside is in absence of strong sus-

picion of guilt of accused?

Where the evidence at a preliminary

examination does not establish such a

state of facts as would lead a person of

Ordinary caution or prudence to believe

and conscientiously entertain a strong

34.

suspicion of the guilt of the accused, an

information based on the evidence should

be set aside. Williams v. Superior Court,

71 Cal.2d 1144, 80 Cal.Rptr. 747 (1969)

People v. Pierce, 66 Cal.2d 53, 56 Cal.

Rptr. 817 (1967); People v. Carcia, 265

Cal.App.2d 94, 71 Cal.Rptr. 102 (1968).

(2) Did respondent act in excess of

its jurisdiction if commitment is in

absence of evidence of occurrence of

crime or connecting the defendant with

a crime?

A defendant is committed without rea-

sonable or probable cause where there is

no evidence at preliminary examination

tending to prove the occurrence of the

offense charged. People v. Bernstein,

51 Cal.2d 655, 659, 335 P.2d 669 (1959);

Levy v. Superior Court, 31 Cal.App.3d 427,

429-30, 107 Cal.Rptr. 384 (1973); Pittman

v. Superior Court, 256 Cal.App.2d 795,

796-97, 64 Cal.Rptr. 473 (1967).

A defendant is committed without rea-

sonable or probable cause where there is

no evidence at the preliminary examination

35.

to connect him with the commission of a

crime. Rollins v. Superior Court, 223 Cal.

App.2d 219, 223, 35 Cal.Rptr. 734, (1963);

Polos v. Superior Court, 175 Cal.App.2d

210, 345 P.2d 981 (1959).

(3) Did Respondent act in excess of

its jurisdiction where commitment is

based on incompetent evidence or evidence

illegally obtained?

A defendant has been held to answer

without reasonable or probable cause if

his commitment is based upon incompetent

evidence. Priestly v. Superior Court,

50 Cal.2d 812, 330 P.2d 39 (1958);

Badillo v. Superior Court, 46 Cal.2d 269,

271, 294 P.2d 23 (1956); Rogers v. Superior

Court, 46 Cal.2d 3, 291 P.2d 929 (1955)

The case of Beckers v. Superior Court,

9 Cal.App.3d 953, 88 Cal.Rptr. 602 (1970),

is based upon facts similar to that before

this court. In Beckers, a writ of prohi-

bition issued to restrain prosecution of

36.

the defendant for possession of drugs fol-

lowing denial of a motion to dismiss the

information where the prosecution failed

to produce warrants at the preliminary

hearing to justify entry of the dwelling

house and the resulting search. Associate

Justice Coughlin wrote that:

Where the only evidence in support

of an information is inadmissible

evidence, on motion under Penal

Code section 995 the information

must be set aside. (Rogers v.

Superior Court, 46 Cal.2d 3, 7,

291 P.2d 929; People v. Bartlett,

supra, 199 Cal.App.2d 173, 179,

18 Cal.Rptr. 480.)

Evidence of a search and arrest of

a person in a dwelling, following

an unlawful entry therein by the po-

lice, even though the search was

upon consent of the person, is in-

admissible under the principles

stated and applied in Wong Sun v.

United States, 371 U.S. 471, 83

S.Ct. 407, 417, 9 L.Ed.2d 441;

People v. Superior Court, 71 C.A.

281, 286, 78 Cal.Rptr. 210, 455 P.

2d 146; People v. Sesslin, 68 Cal.

2d 418, 426, 67 Cal.Rptr. 409,

439 P.2d 321; People v. Henry, 65

Cal.2d 842, 846, 56 Cal.Rptr. 485,

423 P.2d 557

9 Cal.App.3d at 958, 88 Cal.Rptr.

at 604.

37.

A defendant is also committed without

reasonable or probable cause where his com

commitment is based upon evidence obtained

by means of an illegal search of seizure.

People v. Myers, 6 Cal.3d 811, 819, 100

Cal.Rptr. 612, 494 P.2d 684 (1972);

People v. Scoma, 71 Cal.2d 332, 78 Cal.

Rptr. 491, 455 P.2d 419 (1969); Priestly v.

Superior Court, supra, 50 Cal.2d at 816,

330 P.2d at ; Badillo v. Superior

Court, supra, 46 Cal.2d at 271, 294 P.2d

at ; Carpio v. Superior Court, 19 Cal.

App.3d 790, 792, 97 Cal.Rptr. 186 (1971).

In Scoma,the defendant challenged the

sufficiency of the search warrant by mo-

tion to set aside (Penal Code § 995),

which was granted by the trial court and

affirmed by the Court of Appeal. Justice

Suliivan wrote:

A defendant is held to answer with-

out reasonable or probable cause within

the meaning of Section 995 of the

Penal Code when the only substan-

tial evidence supporting his com-

mitment has been obtained in viola-

tion of the Fourth Amendment. (See

Badillo v. Superior Court [1956]

46 Cal.2d 269, 271, 294 P.2d 23;

Rogers v. Superior Court [1955]

46 Cal.2d 3, 7, 291 P.2d 929; cf.

38.

Greenberg v. Superior Court [1942]

19 Cal.2d 319, 321, 121 P.2d 713)

71 Cal.2d at 335, 78 Cal.Rptr. at 493.

Section 1538.5 of the Penal Code,

which deals in general with motions

to suppress as evidence property ob-

tained in violation of the Fourth

Amendment, provides in subdivision

(n) that “Nothing in this section

shall be construed as altering ***

(v) the procedure and law relating

to a motion made pursuant to § 995

or the procedures which may be ini-

ated after the granting or denial

of such a motion." It therefore

appears that § 995 remains a proper

remedy when the evidence alleged

to have been obtained through

illegal means is the only substan-

tial evidence supporting the com-

mitment.

71 Cal.2d 335 n. 2, 78 Cal.Rptr.

493 n. 2

For the foregoing reasons this peti-

tion should be granted.

Respectfully submitted

LOUIS M. NIVEN

A Professional Law

Corporation

By LOUIS M. NIVEN

Attorney for Petitioner

39.

APPENDIX A

STATUTES INVOLVED

California Penal Code, Ann. Section 995

(Deering 1971) states:

The indictment or information must be

set aside by the court in which the

defendant is arraigned, upon his motion,

in either of the following cases:

If it be an indictment:

1. Where it is not found, endorsed, and

presented as prescribed in this code.

2. That the defendant has been indicted

without reasonable or probable cause.

If it be an information:

1. That before the filing thereof the

defendant had not been legally committed

by a magistrate.

2. That the defendant had been committed

without reasonable or probable cause.

California Penal Code, Ann. Section 1538.5

(Deering 1971) states:

(a) A defendant may move for the return

of property or to suppress as evidence any

tangible or intangible thing obtained as

a result of a search or seizure on either

of the following grounds:

(1) The search or seizure without a

warrant was unreasonable.

(2) The search or seizure with a

A-1l

warrant was unreasonable because

(i) the warrant is insufficient on

its face; (ii) the property or evi-

dence obtained is not that described

in the warrant; (iii) there was not

probable cause for the issuance of

the warrant; (iv) the method of exe-

cution of the warrant violated

federal or state constitutional

standards; or (v) there was any

other violation of federal or state

constitutional standards.

(b) When consistent with the procedures

set forth in this section and subject to

the provisions of Section 170 through

170.6 of the Code of Civil Procedure, the

motion shouid first be heard by the magis-

trate who issued the search warrant if

there is a warrant.

(c) Whenever a search or seizure motion

is made in the municipal, justice or sup-

erior court as provided in this section,

the judge or magistrate shall receive

evidence on any issue of fact necessary

to determine the motion.

(d) If a search or seizure motion is

granted pursuant to the proceedings author-

ized by this section, the property or

A-2

evidence shall not be admissible against

the movant at any trial or other hearing

unless further proceedings authorized by

this section or Section 1238 or Section

1466 are utilized by the people.

(e) If a search or seizure motion is

granted at a trial, the property shall be

returned upon order of the court unless it

is otherwise subject to lawful detention.

If the motion is granted at a special hear-

ing, the property shall be returned upon

order of the court only if, after the con-

clusion of any further proceedings author-

ized by this section or Section 1238 or

Section 1466, the property is not subject

to lawful detention or if the time for

initiating such proceedings has expired,

whichever occurs last. If the motion is

granted at a preliminary hearing, the pro-

perty shall be returned upon order of court

after 10 days unless the property is other-

wise subject to lawful detention or unless,

within that time, further proceedings

authorized by this section or Section 1238

are utilized; if they are utilized, the

property shall be returned only if, after

the conclusion of such proceedings, the

property is no longer subject to lawful

detention.

A-3

(f) If the property or evidence relates

to a felony offense initiated by a com-

plaint, the motion may be made in the

municipal or justice court at the preli-

minary hearing.

(g) If the property or evidence relates

to a misdemeanor complaint, the motion

shall be made in the municipal or justice

court before trial and heard prior to

trial at a special hearing relating to the

validity of the search or seizure. If the

property or evidence relates to a misde-

meanor filed together with a felony, the

procedure provided for a felony in this

section and Sections 1238 and 1539 shall

be applicable.

(h) If, prior to the trial of a felony or

misdemeanor, opportunity for this motion

did not exist or the defendant was not

aware of the grounds for the motion, the

defendant shall have the right to make

this motion during the course of trial in

the municipal, justice or superior court.

(i) If the property or evidence obtained

relates to a felony offense initiated by

complaint and the defendant was held to

answer at the preliminary hearing, or if

the property or evidence relates to a

A-4

felony offense initiated by indictment,

the defendant shall have the right to re-

new or make the motion in the superior

court at a special hearing relating to the

validity of the search or seizure which

shall be heard prior to trial and at least

10 days after notice to the people unless

the people are willing to waive a portion

of this time. The defendant shall have

the right to litigate the validity of a

search or seizure de novo on the basis of

the evidence presented at a special hear-

ing. After the special hearing is held in

the superior.court, any review thereafter

desired by the defendant prior to trial

shall be by means of an extraordinary writ

of mandate or prohibition filed within 30

days after the denial of his motion at the

speical hearing.

(j) If the property or evidence relates

to afelony offense initiated by complaint

and the defendant's motion for the return

of the property or suppression of the evi-

dence at the preliminary hearing is

granted, and if the defendant is not held

to answer at the preliminary hearing, the

people may file a new complaint or seek an

indictment after the preliminary hearing,

A-5

and the ruling at the prior hearing shall

not be binding in any subsequent proceed-

ing. If the property or evidence relates

to a felony offense initiated by complaint

and the defendant's motion for the return

or suppression of the property or evidence

at the preliminary hearing is granted, and

if the defendant is held to answer at the

preliminary hearing, the ruling at the

preliminary hearing shall be binding upon

the people unless. upon notice to the

defendant and the court in which the pre-

liminary hearing was held and upon the

filing of an information, the people with-

in 10 days after the preliminary hearing

request in the superior court a special

hearing, in which case the validity of the

search or seizure shall be relitigated de

novo on the basis of the evidence presented

at the special hearing, and the defendant

shall be entitled, as a matter of right,

to a continuance of the speical hearing

for a period of time up to 30 days. If

defendant's motion is granted at a special

hearing in the superior court, the people,

if they have additional evidence relating

to the motion and not presented at the

special hearing, siall have the right to

A-6

show good cause at the trial why such evi-

dence was not presented at the special

hearing and why the prior ruling at the

special hearing should not be binding, or

the people may seek appellate review as

provided in subdivision (0), unless the

court prior to the time such review is

sought has dismissed the case pursuant to

Section 1385. If the property or evidence

seized relates solely to a misdemeanor

complaint, and the defendant ~ade a motion

for the return of property o. the suppres-

sion of evidence in the municipal court or

justice court prior to trial, both the

people and defendant shall have the right

to appeal any decision of that court rela-

ting to that motion to the superior court

of the county in which such inferior court

is located, in accordance with the Cali-

fornia Rules of Court provisions governing

appeals from municipal and justice courts

in criminal cases. If the people prose-

cute review by appeal or writ to decision,

or any review thereof, in a felony or

misdemeanor case, it shall be binding upon

them.

(k) If the defendant's motion to return

property or suppress evidence is granted

A-7

and the case is dismissed pursuant to

Section 1385, or the people appeal in a

misdemeanor case pursuant to subdivision

(3), the defendant shall be released pur-

Suant to Section 1318 if he is in custody

and not returned to custody unless the

proceedings are resumed in the trial court

and he is lawfully ordered by the court

to be returned to custody.

If the defendant's motion to return pro-

perty or suppress evidence is granted and

the people file a petition for writ of

mandate or prohibition pursuant to sub-

division (0) or a notice of intention to

file such a petition, the defendant shall

be released pursuant to Section 13])8 un-

less (1) he is charged with a capital

offense in a case where the proof is evi-

dent and the presumption great, or (2) he

is charged with a noncapital offense de-

fined in Chapter 1 (commencing with Sec-

tion 187) of Title 8 of Part 1 and the

court orders that the defendant be dis-

charged from actual custody upon bail.

(1) If the defendant's motion to return

property or suppress evidence is granted,

the trial of a criminal case shall be

stayed to a specified date pending the

A-8

termination in the appellate courts of

this state of the proceedings provided

for in this section, Section 1238, or

Section 1466 and, except upon stipulation

of the parties, pending the time for the

initiation of such proceedings. Upon the

termination of such proceedings, the de-

fendant shall be brought to trial as pro-

vided by Section 1382, and subject to the

provisions of Section 1382, whenever the

people have sought and been denied appel-

late review pursuant to subdivision (0),

the defendant shall be entitled to have

the action dismissed if he is not brought

to trial within 30 days of the date of the

order which is the last denial of the

petition. Nothing contained in this sub-

division shall prohibit a court, at the

same time as it rules upon the search and

seizure motion, from dismissing a case

pursuant to Section 1385 when such dis-

missal is upon the court's own motion and

is based upon an order at the special

hearing granting defendant's motion to

return property or suppress evidence. In

a misdemeanor case, the defendant shall

be entitled to a continuance of up to 30

A-9

days if he intends to file a motion to

return property or suppress evidence and

needs this time to prepare for the special

hearing on the motion. In case of an

appeal by the defendant in a misdemeanor

case from the denial of such motion, he

shall be entitled to bail as a matter of

right, and, in the discretion of the trial

or appellate court, may be released on his

own recognizance pursuant to Section

1318.4.

(m) The proceedings provided for in this

section, Section 995, Section 1238, and

Section 1466 shall constitute the sole and

exclusive remedies prior to conviction to

test the unreasonableness of a search or

seizure where the person making the motion

for the return of property or the suppres-

sion of evidence is a defendant in a crim-

inal case and the property or thing has

been offered or will be offered as evidence

against him. A defendant may seek further

review of the validity of a search or

seizure on appeal from a conviction in a

criminal case notwithstanding the fact that

such judgment of conviction is predicated

upon a plea of guilty. Such review on

appeal may be obtained by the defendant

A-10

providing that at some stage of the pro-

ceedings prior to conviction he has moved

for the return of property or the suppres-

sion of the evidence.

(n) Nothing contained in this section

shall prohibit a person from making a

motion, otherwise permitted by law, to

return property, brought on the ground

that the property obtained is protected

by the free speech and press provisions

of the Federal and State Constitutions.

Nothing in this section shall be construed

as altering (i) the law of standing to

raise the issue of an unreasonable search

or seizure; (ii) the law relating to the

status of the person conducting the search

or seizure; (iii) the law relating to the

burden of proof regarding the search or

seizure; (iv) the law relating to the

reasonableness of a search or seizure re-

gardless of any warrant which may have

been utilized; or (v) the procedure and

law relating to a motion made pursuant to

Section 995 or the procedures which may be

initiated after the granting or denial of

such a motion.

(o) Within 30 days after a defendant's

motion is granted at a special hearing in

A-11

superior court, the people may file a peti-

tion for writ of mandate or prohibition,

seeking appellate review of the ruling

regarding the search or seizure motion.

If the trial of a criminal case is set for

a date which is less than 30 days from the

granting of a defendant's motion at a spe-

cial hearing in the superior court, the

people, if they have not filed such a

petition and which to preserve their right

to file such a petition, shall file in the

superior court on or before the trial date

or within 10 days after the special hear-

ing, whichever occurs last, a notice of

intention to file such a petition and

shall serve a copy of the notice upon the

defendant.

California Penal Code, Ann. Section 1539

(Deering 1971) states:

(a) If a special hearing be held in the

superior court pursuant to Section 1538.5,

or if the grounds on which the warrant was

issued be controverted and a motion to re-

turn property be made (i) by a defendant

on grounds not covered by Section 1538.5;

(ii) by a defendant whose property has

not been offered or will not be offered as

evidence against him; or (iii) by a person

A-12

who is not a defendant in a criminal

action at the time the hearing is held,

the judge or magistrate must proceed to

take testimony in relation thereto, and

the testimony of each witness must be re-

duced to writing and authenticated by a

shorthand reporter in the manner pre-

scribed in Section 869.

(b) The reporter shall forthwith trans-

cribe his shorthand notes pursuant to this

section if any party to a special hearing

in the superior court files a written re-

quest for its preparation with the clerk

of the court in which the hearing was

held. The reporter shall forthwith file

in the superior court an original and as

many copies thereof as there are defen-

dants (other than a fictitious, defendant)

Or persons aggrieved. The reporter shall

be entitled to compensation in accordance

with the provisions of Section 869. In

every case in which a transcript is filed

as provided in this section, the county

clerk shall deliver the original of such

transcript so filed with him to the dis-

trict attorney immediately upon receipt

thereof and shall deliver a copy of such

transcript to each defendant (other than

A-13

a fictitious defendant) upon demand by him

without cost to him.

California Penal Code, Ann. Section 1525

(Deering 1971) states:

A search-warrant cannot be issued but upon

probable cause, supported by affidavit,

naming or describing the person, and part-

icularly describing the property and the

place to be searched.

California Penal Code, Ann. Section 12020

(Deering 1977 Supplement) states:

(a) Any person in this state who manu-

factures or causes to be manufactured,

imports into this state, keeps for sale,

or offers or exposes for sale or who gives,

lends, or possesses any cane gun or wallet

gun, any firearm which is not immediately

recognizable as a firearm, any ammunition

which contains or consists of any flechette

dart or any instrument or weapon of the

kind you may know as blackjack, slung shot,

billy, nunchaku, sand club, sand bag,

sawed-off shotgun, or metal knuckles or

who carries concealed upon his person any

explosive systems other than fixed ammuni-

tion or who carries concealed upon his

A-14

person a dirk or dagger, is guilty of a

felony, and upon conviction shall be

punishable by imprisonment in the county

jail not to exceed one year or ina state

prison.

(b) Subdivision (a) shall not apply to

any of the following:

(1) The manufacture, possession,

transportation or use, with blank cart-

ridges, of sawed-off guns solely as

probes for motion picture film or tele-

vision program production when such is

authorized by the Department of Justice

pursuant to Article 6 (commencing with

Section 12095) of this chapter and is

not in violation of federal law.

(2) The possession of a nunchacku

on the premises of a school which holds

a regulatory or business license and

teaching the art of self-defense.

(3) The manufacture of a nunchacku

for sale to, or the sale of a nunchacku

to, a school which holds a regulatory or

business license and teaches the art of

self-defense.

(4) Any antique firearm. For pur-

poses of this paragraph the term "antique

firearm" means any firearm not designed

A-15

or redesigned for using rimfire or con-

ventional centerfire ignition with fixed

ammunition, and manufactured in or be-

fore 1898, including any matchlock,

flintlock, percussion cap, or similar

type of ignition system.

(c) Any person in this state who manu-

factures or causes to be manufactured,

imports into the state, keeps for sale

or offers or exposes for sale, or who

gives, lends, or possesses any instru-

ment without handles consisting of a

metal plate having three or more radiat-

ing points with one or more sharp edges

and designed in the shape of a polygon,

trefoil, cross, star, diamond, or other

geomatric shape for use as a weapon for

throwing is quilty of a felony and upon

conviction shall be punishable by impri-

sonment in the county jail not exceeding

one year or ina state prison.

(d) (1) As used in this section “sawed-

off shotgun" means any firearm (including

any revolver) manufactured, designed, or

converted to fire shotgun ammunition

having a barrel or barrels of less than

18 inches in length, or a rifle having a

barrel or barrels of less than 16 inches

A-16

in length, or any weapon made from a rifle

Or shotgun (whether by manufacture, alter-

ation, modification, or otherwise) if such

weapon as modified has an overall length

of less than 26 inches

(2) As used in this section "a nun-

chacku" means an instrument consisting of

two or more sticks, clubs, bars or rods

to be used as handles, connected by a

rope, cord, wire or chain, in the design

of a weapon used in connection with the

practice of a system of self-defense such

as karate.

(3) As used in this section "a wallet

gun" means any firearm mounted or enclosed

in a case, resembling a wallet, designed

to be capable of being carried in a pocket

or purse, if such firearm may be fired

while mounted or enclosed in such case.

(4) As used in this section "a cane

gun" means any firearm mounted or enclosed

in a stick, staff, rod, crutch, or similar

device, designed to be capable of being

used as an aid in walking, if such firearm

may be fired while mounted or enclosed

therein.

(5) As used in this section "a

flechette dart" means a dart, capable of

A-17

being fired from a firearm, which measures

approximately one inch in length with tail

fins which take up five-sixteenths inch of

the body.

APPENDIX B

CONSTITUTIONAL PROVISIONS

United States Constitution,

Fourth Amendment

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants

shall issue, but upon probable cause.

supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to be

seized.

California Constitution, Ann. Article I

Section 13 (Deering 1977 Supplement)

states:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable seizures and searches,

may not be violated; and a warrant may not

issue except on probable cause, supported

by oath or affirmation, particularly des-

cribing the place to be searched and the

persons and thin~. to be seized.

APPENDIX C

JUDGMENT OF COURT OF APPEAL OF THE STATE

OF CALIFORNIA FOURTH APPELLATE DISTRICT

COURT OF APPEAL - STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

COURT OF APPEAL

FOURTH DIST. FILED

AUG 31 1977

ERVIN J. TUSZYNSKI,

Clerk

Deputy Clerk

EDWARD ROBERT EMERY RECEIVED

Petitioner, SEP 1 1977

Vs.

SUPERIOR COURT, 4 Civ. NO. 19153

RIVERSIDE COUNTY COUNTY NO. I-CR-

Respondent 5340

PEOPLE,

Real Party in Interest

BY THE COURT:

The stay order issued by this court

on July 14, 1977 is hereby vacated; and

The petition for writ of mandate/

prohibition is DENIED.

Morris, J. Acting P.J.

Copies to:

County Clerk, Courthouse, Riverside

Attorney General, San Diego

District Attorney, Courthouse, Riverside

Louis M. Niven, 1681 West Broadway, Ste.

102, Anaheim, 92802

C-1

APPENDIX D

DECREE OF THE CALIFORNIA

SUPREME COURT

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

SAN FRANCISCO, CALIFORNIA 94102

SEP 28 1977

I have this day filed Order

HEARING DENIED

RECEIVED

SEP 30 1977

In re: 4 Civ. No.

Emery

19153

VS.

Superior Court, Riverside

Respectfully,

G. E. BISHEL

Clerk

APPENDIX E

SEARCH WARRANT

IN THE MUNICIPAL COURT OF DESERT JUDICIAL

DISTRICT COUNTY OF REIVERSIDE, STATE OF

CALIFORNIA

SEARCH WARRANT

S.C. Warrant No.

M.C. Warrant No. 39212

_ DESERT MUNICIPAL

Judicial District

To any Sheriff, Police Officer, Con-

stable, Marshal or Peace Officer in the

County of Riverside:

A sworn statement having been made to

me by Elwin Summers Police Officer

(Name ) (Title)

and it appearing that there is probable

cause to believe that at the place (and

on the person and in the vehicle) des-

cribed as follows: A one story stucco

house with detached one car garage, white

in color with green trim, located at the

Southwest corner of Oleander Drive and

Yucca Drive, Eagle Mtn, with an address

of 717 Oleander Drive, Eagle Mtn. CA.

in the County of Riverside, there is now

being concealed therein certain property,

namely:

E-1

#1) 45-70 Cal. Springfield Rolling Block

rifle, S/N #180470

#2) 22 Cal. Revolver, Blue steel 3"

barrel, 7 shot with black plastic

property seized; and to return this war-

‘ rant together with the above written

inventory; and to bring the property be-

fore me within TEN DAYS of this date, as

grips.

which is X stolen property

required by law. Proof as aforesaid

having been made you may do such of the

property used to commit

following as bear my initials, you

a felony may serve this warrant at any time

property in possession of

of day or night as the case may be,

tog Being coneesies by! according to Penal Code Section

1533;

need not comply with Penal Code

Section 1531.

Time of Issuance 2:05 A+M.- P.M.

another with intent to

commit a public offense

property tending to show

a felony was committed and I am satisfied

that there is probable cause to believe Time of Execution A.M.- P.m.

that the property so described is at the DATED: this 10 day of May _, 1976.

above described place (and on the above

described person, and in the akove des- /s/ Claude B. Brown

cribed vehicle) and that the foregoing Magistrate

grounds for application for issuance of . Judge of the Municipal

the search warrant exist. . Superior, Municipal

THEREFORE, you are hereby commanded to’ Court Desert

,; dicial District

serve this warrant; search the place (and \ cenaese

the person, and the vehicle) named for the \

property specified; and to then seize it \

if found; leaving a receipt for any pro-

perty seized at the place of search; and

to prepare a written inventory of the

E-2

APPENDIX F

AFFIDAVIT FOR SEARCH WARRANT

IN THE MUNICIPAL COURT OF DESERT JUDICIAL

DISTRICT COUNTY OF RIVERSIDE, STATE OF

CALIFORNIA

AFFIDAVIT FOR SEARCH WARRANT

Pins OD

MUNICIPAL COURT

DESERT JUDICIAL DISTRICT

INDIO, CALIFORNIA

MAY 10 1976

M. MCLAUGHLIN, Clerk

By /s/ T. Hunts

Deputy

S.C. Warrant No.

M.C. Warrant No. 39212

DESERT MUNICIPAL

Judicial District

Being duly sworn, I the UNDERSIGNED,

Elwin Summers Police Officer ,

(Name) (Title)

say that at the place (and on the person

and in the vehicle) described as follows:

A one story stucco house with detached

one car garage, white in color with green

trim, located at the Southwest corner of

Oleander Drive and Yucca Drive, Eagle Mtn.,

with an address of 717 Oleander Drive,

Eagle Mts., CA. in the County of Riverside,

F-1

there is now being concealed therein

certain property, namely:

#1) 45-70 Cal. Springfield Rolling Block

rifle, S/N #180470

#2) 22 Cal. Revolver, Blue steel 3"

barrel, 7 shot with black plastic

grips.

which is X stolen property

property used to commit a

felony

property in possession of

(or being concealed by)

another with intent to

commit a public offense

property tending to show a

felony was committed and the facts esta-

blishing the foregoing grounds for issu-

ance of a search warrant are as follow:

A. Affiant's Declaration (See Attachment

(s) 1 )

B. Source of Information (See Attachment

(s) 2 & 3)

C. Basis of Informant's personal know-

ledge (See Attachment(s)

D. Nighttime service requested (See

Attachment (s)

E. Request that compliance with Penal

Code Section 1531 be excused (See

F-2

Attachment )

F. Other Attachemnt(s)

All attachments are incorporated here-

with as though fully set out herein.

/s/ EL Summers

Affiant

Subscribed and sworn to before me this

10 day of May _ , 1976.

/s/ Claude B. Brown

Magistrate

Judge of the Municipal Court

Superior, Municipal

Desert

Judicial District

WHEREFORE, it is prayed that a Search

Warrant Issue.

BYRON C. MORTON

District Attorney

By /s/ W. Clark

Deputy District Attorney

AFFIANT'S DECLARATION-ATTACHMENT 1

IN THE MUNICIPAL COURT OF DESERT JUDICIAL

DISTRICT COUNTY OF RIVERSIDE, STATE OF

CALIFORNIA

Attachment No. 1

AFFIANT'S DECLARATION

Affiant's Name Elwin Summers

Occupation Police Officer No.Of Years 4%

Assignement Detective No.Of Years 2

Department Employed by Coachella Police

Department

Date Information Received Wed. 5-5 1976

xm. = = >

Approx.time 1500 p.m. (Day-Date-Month)

Your affiant received information as fol-

lows: On 5-5-76, received information

from Confidential Informant that a stolen

45-70 rifle was sold at the Emery house

in Eagle Mtn., to a NED EMERY for $100.00

and placed ina safe. Said rifle had

been stolen approximately one month prior,

from a house on Van Buren and Ave. 52.

Investigation revealed that ED EMERY lives

at 717 Oleander St., Eagle Mtn., CA.

Information from Dep. Bowen, Riverside

Sheriff's Office, Eagle Mtn.; is that he

has seen a safe inside EMERY's residence

G-l

and that EMERY is a gun collector and

keeps guns in said safe.

Bowen further related, that on approxi-

mately 4-30-76, a female known as TONYA

TOLLISON related to him that she was

present when a PATRICIA COMER sold a 22

cal. revolver to ED EMERY at his home,

for $10.00, Said gun being stolen from

an ELGIE COMER of 936 Pinto, Eagle Mtn.,

CA. Report #Al1-76-104-013.

APPENDIX H

SOURCE OF INFORMATION-ATTACHMENT 2

IN THE MUNICIPAL COURT OF DESERT JUDICIAL

DISTRICT COUNTY OF RIVERSIDE, STATE OF

CALIFORNIA

Attachment No. 2

SOURCE OF INFORMATION

(Informant's Reliability)

Affiant's Name Elwin Summers

Occupation Police Officer No.of Years 4%

Assignment Detective-BTF No.of Years 2

Department Employed by Coachella Police

Deparment

Date Information Received 5-5 1976

(Day-Date-Month)

Approx. time 1500 axm.- p.m.

Your affiant received information from an

informant whose name is:

Confidential

Unknown

X Confidential for the following

reason(s):

Disclosure of his identity

would endanger his safety.

x Disclosure of his identity

would impair his future

usefulness to law enforce-

H-1

ment in uncovering illegal

activity.

The informant's reliability is untested,

however, information received from this

informant establishes the existence of an

emergency or has been corroborated as to

essential matters in that: On 5-5-76 at

1500, the informant advised that he was

present when a 44-70 Breech Loader Rifle

which was stolen from a house at Van

Buren & ave. 52, Coachella, approximately

one month prior, was sold to a WMA, known

to Confidential Informant as NED EMERY.

The sale taking place at EMERY's home in

Eagle Mountain, CA. The Confidential

Informant observed EMERY place the rifle

inside a large safe inside the house.

Said safe contained numerous guns.

A record search indicated that a Spring-

field 45-70 Rolling Block rifle, S/N

#180470 was stolen on 3-22-76 from a TOM

ALLCHIN at Ave. 52 and Van Buren,

Coachella, California. C1l-76-082-019.

H-2

APPENDIX I

SOURCES OF INFORMATICN-ATTACHMENT 3

IN THE MUNICIPAL COURT OF DESERT JUDICIAL

DISTRICT COUNTY OF RIVERSIDE COUNTY OF

CALIFORNIA

Attachment No. 3

SOURCES OF INFORMATION

(Informant - Official Source)

Affiant's Name Elwin Summers

Occupation Police Officer No.of Years 4%;

Assignment Detective-BTF No.of Years 2

Department Employed by City of Coachella

Date Information received 5-10

(Day-Date-Month)

1976 Approx. time 10 a.m. - pxm.

Your affiant received information from

(names of officers or official records)

Deputy Bowen Blythe Sheriff's Office -

Eagle Mountain Sub Station

The information is reliable in that it

comes from an official source, to wit:

Deputy Bowen stated that TONYA TOLLISON

stared to him that she, TOLLISON, was

present when PATRICIAL COMER had sold a

22 cal. revolver, 7 shot Blue Steel, 3

inch barrel with black plastic grips to

NED EMERY for $10.00.

I-1

TOLLISON stated, the gun was stolen from

ELGIE COMER on 4-13-76, RSO case

#A1-76-107-013. TOLLISON stated she was

with PATRICIA COMER on 4-13-76 when COMER

went to the EMERY residence with the gun

and sold it for ten collars. TOLLISON

stated she saw COMER walk up to the front

door of the EMERY residence and give EMERY

the gun and COMER returned with $10.00.

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