# Petition — Emery v. Superior Court of California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1046

## Text

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.

THE BRIEF SHOP

LAWYERS BRIEF SERVICE
LEGAL & COMM. PRINTING

10844 VENTURA BOULEVARD
NORTH HOLLYWOOD. CA. 91604

(213) 8677-8620 763-2965

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0078%3A1. Public record. Not legal advice.