Petition — Gartner v. California

aR

1

o 32 DEC 22 1980

re IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent /Plaintiff,

ys.

FRANCIS DUANE GARTNER,

Petitioner/Defendant.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

MICHAEL D. NASATIR of

NASATIR, SHERMAN, HIRSCH & RE

9911 West Pico Boulevard, Suite 1000

Los Angeles, California 90035

Telephone (213) 277-3112

Counsel for Petitioner

ME

DeanStandefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) $36-7161

: "ot

QUESTION PRESENTED

May a law enforcement officer initiate and conduct

a “confirmation” search, without a warrant, of a box of

private records belonging to the accused after a third

party citizen has already conducted a warrantless exam-

ination of the documents contained in the closed box?

2S

ii

TOPICAL INDEX

Question Presented .............. Seen

Topical Index ah Seti AR LR

Table of Authorities Cited ...........0000ees

Petition for Writ of Certiorari ................

Official and Unofficial Reports ....... edeeees

PE Aas Se Ra Wi whos Widcldevwale’

Statutes and Constitutional

PHOVIMOTID TNVOIVOR «ow cc ele cc cchelvccce’s

I Sk! as oy 2 ee pine eb eo

CTT = RC A oa

Reasons for Granting the Writ ................

EE a Ne wa hole weiaten we ohio ce-op ae ieck

i ahs bi hai ke om ON ak een a nie bd: oad

. “Si 4 4a oe

iii

TABLE OF AUTHORITIES CITED

Cases

Arkansas v. Sanders, 442: U.S. 753,

99 5. Ce. ZIGG CASO ie kiisec eed eedge

Corngolc v. United States, 367 F.2d 1

CP Cie DIGG) os, seein eee alee adh OKs

Katz v. United States, 389 U.S. 347,

Oe A ee PRT ine teases eens

Stoner v. California, 376 U.S. 483,

Re ASS k's o's bee's

United States v. Chadwick, 443 U.S. 1,

OF Bree EERO TT iiad s0y as io ve Sedans

United States v. Ford, 525 F.2d 1308

SUOUEMEELDEDD cok We caediivescasecconss

United States v. Jeffers, 342 U.S. 48,

Pe Me UE be ed dive cence ces

United States v. Kelly, 529 F.2d 1365

ls

United States v. McDaniel, 574 F.2d 1224

(Sth Cir. 1978), cert. denied 441 U.S.

WO CEES FU Vie bob n 8 wibiv'e'e.6 obi bie 0 0 blee'ss

United States v. Newton, 510 F.2d 1149

CP NT PIs a ew iclutacale dia 6.) 6" 0:0 010 o 60%

United States v. Pryba, 502 F.2d 391

(C.A. D.C. 1974), cert. denied

SEs BEST REMOOD Wile y's o's S00 ce ewedac

United States v. United States District Court,

407 U.S. 297, 92 S. Ct. 2125 (1972) ......

'%

*.

iv

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

Walter v. United States, 447 U.S. 67,

100 S. Ct, 2395 (1980)........... 5, 7,9, 10, 11, 12

United States Constitution

Fourth Amendment. 0s icc ccc tweens 3, 5,8, 9

Fourteenth Amendment .................4.- 3, 5

Statutes (United States)

eS BOT a wie ba yeh ela WS alate as Cale 6c 3

Statutes (California)

Penal Code

Si one ow ahi givicns } A bik bib lao capin’t 4

EEN. ctecas bb Male Wie ewe chase k ay tae 4

POO. sercoies

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent/Plaintiff,

vs.

FRANCIS DUANE GARTNER,*

Petitioner/Defendant.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

ox, ae

To the United States Supreme Court, October Term, 1980:

This is a petition of FRANCIS DUANE GARTNER

for a writ of certiorari to review the orders made by the

Court of Appeal of the State of California, Second Appel-

late District, on August 4, 1980, denying petitioner’s

appeal, and on August 19, 1980, denying petitioner’s ,

petition for rehearing, as well as the order of the Supreme

Court of the State of California on October 22, 1980, denying

petitioner’s petition for hearing, said appeal and petition being

sought to review the orders of the Superior Court of the

State of California for the County of Los Angeles entered

on May 18, 1979, and June 20, 1979, denying petitioner’s

motion to suppress evidence, quash search warrant 14121

and traverse search warrant 14121.

OFFICIAL AND UNOFFICIAL REPORTS

To petitioner’s knowledge there are no official or

unofficial reports of (a) the orders of the Superior Court

of the State of California, County of Los Angeles, denying

petitioner’s motion to suppress evidence, motion to quash

search warrant and motion to traverse search warrant,

entered on May 18, and July 20, 1979 (a copy of said

orders has been attached hereto as Appendix “‘A”’);

(b) the order of the Court of Appeal of the State of Calif-

ornia, Second Appellate District, on August 4, 1980, affirm-

ing petitioner’s conviction (a copy of said order has been

attached hereto as Appendix “‘B’’); or (c) the order of the

Supreme Court of the State of California, on October 22,

1980, denying petitioner’s petition for hearing (a copy of

said order has been attached hereto as Appendix “‘C’’).

ee

JURISDICTION

1. On May 18, 1979, and July 20, 1979, the Superior

Court of the State of California for the County of Los Angeles

denied FRANCIS DUANE GARTNER’s motion to suppress

evidence. Mr. GARTNER was sentenced on July 20, 1979,

and, on said date, filed a timely notice of appeal.

2. On August 4, 1980, the Court of Appeal of the

State of California, Second Appellate District, entered its

order affirming Mr. GARTNER’s conviction.

3. On August 19, 1980, Mr. GARTNER’s petition

for rehearing was denied by the Court of Appeal of the State

of California, Second Appellate District.

4. On October 22, 1980, Mr. GARTNER’s petition

for hearing in the Supreme Court of the State of California

was denied.

5. There have been no motions for extension of

time within which to file this petition for writ of certiorari.

6. The jurisdiction of this Court is invoked under

Title 28, U.S.C. 8 1257.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The relevant portions of pertinent constitutional and

statutory provisions are set forth in Appendix “‘D”’ attached

hereto; they are: ;

1. Fourth Amendment to the United States Constitu-

tion;

2. Fourteenth Amendment to the United States

Constitution; |

3. California Penal Code § 1538.5.

-*%

stiles

STATEMENT OF THE CASE

On June 1, 1978, an Information was filed in the

_ Superior Court of Los Angeles County charging petitioner

with violations of California Penal Code § 487.1 and 8 470,

grand theft and forgery. A plea of not guilty was entered

to all counts of the Information.

On July 28, 1978, petitioner filed a Notice of Motion

and Motion to Traverse and Quash Search Warrant and to

Suppesss Evidence, alleging violations of the United States

and California Constitutions (C.T. 1066-1070!). On Oct-

ober 3, 1978, a supplement to this motion, with extensive

points and authorities, was filed (C.T. 1072). On Decem-

ber 20, 1978, the prosecution filed its opposition points

and authorities (C.T. 1157), and on December 22, 1978,

petitioner filed his reply to the opposition.

On March 20, 1979, a stipulation was entered into

to submit the motion to suppress, quash and traverse on

a partial transcript of the preliminary hearing (C.T. 1179).

On March 26, 1979, petitioner filed additional supple-

mental authorities (C.T. 1183).

On May 18, 1979, petitioner’s motion to suppress,

quash and traverse was denied (C.T. 1194, R.T. 267).

On July 20, 1979, petitioner filed a notice of motion

and renewed motion to suppress evidence, based upon newly

cr. will be used here, and hereafter, to refer to the Clerk's Transcript on

2R.T. will be used here, and hereafter, to refer to the Reporter's Transcript

on Appeal.

=

ww

a ae

discovered case law (C.T.B, 447). On that day the Superior

Court considered and denied said motion (C.T. 1195, R.T.

40°).

The validity of the warrantless search and seizure by

law enforcement officials of the box of records belonging

to petitioner, under the Fourth and “"ourteenth Amend-

ments to the United States Constitution, was raised by

petitioner before the Court of Appeal of the State of Calif-

ornia, Second Appellate District, in petitioner’s Opening

Brief and again in his Reply Brief,by relying, in part, upon

Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586 (1979),

.and United States v. Chadwick, 433 U.S. 1, 97 S, Ct. 2476

(1977).

On August 4, 1980, the Court of Appeal of the State

of California, Second Appellate District, filed its opinion

affirming petitioner’s conviction and upholding the validity

of the warrantless search (Appendix “‘B’’). A timely petition

for hearing was filed with the Supreme Court of the State

of California on September 15, 1980, raising the validity of

the warrantless search under the Fourth and Fourteenth

Amendments, relying upon Walter v. United States, 447

U.S. 67, 100 S. Ct. 2395 (1980); Arkansas v. Sanders, supra;

and Chadwick v. United States, supra. Said petition for

hearing alleging violations of the Fourth and Fourteenth

Amendment rights was denied on October 22, 1980 (Appen-

dix “C”’’).

3C.7.B. will be used here and hereafter, to refer to Volume II of the Supple-

mental Clerk's Transcript on Appeal.

—A.copy, of the or Notice of Motion and Motion raverse and

ms Append, to ot Code Section 1 38.5;

1539; 1540) is the “federal

question” was raised in the er Cohtoraia

’ S

a ae

STATEMENT OF FACTS

While investigating FRANCIS DUANE GARTNER,

a Los Angeles County Deputy Sheriff contacted a business

competitor of GARTNER’s and questioned this competitor

about GARTNER. The business competitor informed the

Deputy Sheriff that he (competitor) had recently examined

private records of GARTNER’s that had “inadvertently”

been delivered to the competitor’s office by a moving

company. The competitor explained that he had purchased

a casualty insurance business from Mr. GARTNER and,

after purchasing this business, petitioner GARTNER moved

from his old offices into the competitor’s previous office

and the competitor moved from his (competitor’s previous

office) into new and different offices. The same moving

company conducted the move for both individuals on the

same date. This box of records examined by the business

competitor was mistakenly delivered to the business com-

petitor’s new offices when it should have been taken to

the competitor’s previous offices which were now fréquent-

ed by petitioner GARTNER. (C.T. 470, 478, 487.) These

records were examined by the business competitor because

he was “curious” about these records. _

The Deputy Sheriff did not seek judicial approval or

conduct any further investigation. Instead, he went to the

competitor’s storeroom, opened a box of records (knowing

that the records belonged to petitioner), removed a file and

reviewed and examined approximately | 00 to 200 private

records of petitioner’s contained in the file. (C.T. 502.)

At the Deputy Sheriff’s request the competitor photocopied

many of these records and gave these photocopies to the

+: .

Deputy Sheriff (C.T. 504). The Deputy Sheriff returned

to the competitor’s place of business during the next six

to eight weeks, continued to review the records, and

obtained additional photocopies of said records (C.T. 506,

507). Prior to the issuance of search warrant 14121, peti-

tioner attempted to obtain his records from the competitor

but was told by the business competitor that the Sheriff's

Department had requested that the records not be returned

to petitioner GARTNER (C.T. 480, 481).

It was acknowledged by all parties that the fruits of

the Deputy Sheriff’s warrantless search of the private

records were relied upon in the affidavit in support of search

warrant 14121 (C.T. 466, 472, 479, 490, 502, 505, 506).

The Superior Court of the State of California for the County

of Los Angeles recognized that the search warrant affidavit

would be constitutionally insufficient to authorize the

warrant if the fruits of these warrantless searches by the

Deputy Sheriff were excised from the affidavit (R.T. 23).

REASONS FOR GRANTING THE WRIT

This petition for writ of certiorari provides this Honor-

able Court with the opportunity to resolve a question left

open by this Court last term in Walter v. United States, supra,

447 U.S. 67, 100 S. Ct. 2395 (1980); i.e., whether the govern-

ment may reopen and search a package previously examined

but then closed by a private party (see Mr. Justice Stevens’

opinion [100 S. Ct. at 2402 and n. 9} and Mr. Justice White’s

concurring opinion [100 S. Ct. at 2404, n. 3] ), and it would

be instrumental in resolving a conflict between various United

States Courts of Appeals regarding the extent of a warrantless

uf

government agent search after a prior search by a private

individual. Compare, United States v. Kelly, S29 F.2d

1365 (8th Cir. 1976); United States v. Newton, 510 F.2d

1149 (7th Cir. 1975), and Corngold v. United States, 367

F.2d 1 (9th Cir. 1966), with United States v. McDaniel,

574 F.2d 1224 (Sth Cir. 1978), cert. denied 441 U.S.

952 (1979); United States v. Ford, 525 F.2d 1308 (10th

Cir. 1975), and United States v. Pryba, 502 F.2d 391

(C.A. D.C, 1974), cert. denied 419 U.S. 1127 (1975).

The question of the validity of a subsequent warrantless

search of a closed package by a government agent after

a prior search by a private individual needs to be resolved

by this Honorable Court to eliminate the confusion and

contradictory rulings presently being rendered by the lower

federal courts and the state courts.

ARGUMENT

The Court has previously ruled that the “warrant

clause” of the Fourth Amendment is to be read in conjunction

with the “unreasonable search and seizure” clause when Fourth

Amendment rights are alleged to have been violated. United

States v. United States District Court, 407 U.S. 297, 92 S. Ct.

2125, 2136 (1972). The absence of a warrant makes the

search “per se unreasonable” Katz v. United States, 389 U.S.

347, 88 S. Ct. 507, 514 (1967). The burden has been placed

on those seeking an exception to the warrant requirement to

show the need for said exception. United States v. Jeffers,

342 U.S. 48, 72 S. Ct. 93, 95 (1951).

Recently, this Court has differentiated between con-

tainers of personal property (as in this case) and automobiles

“Ss

and, in the former situation, has required a search warrant

to search containers of personal property when said con-

tainers are effectively under the control of law enforce-

ment officials, notwithstanding the fact that the container

is presently located at law enforcement “headquarters” }

(United States v. Chadwick, supra, 433 U.S. 1, 97 S. Ct.

2476) or whether the container is located “‘in the field”

( Arkansas v. Sanders, supra, 442 U.S. 753, 99 S. Ct. 2586).

Both Sanders and Chadwick recognized that law enforce-

ment officials had abundant probable cause to search the

containers of personal property, but it was determined that

probable cause alone was insufficient to justify. the warrant-

less invasion of personal privacy.

After Sanders and Chadwick, it appeared that a

“confirmation” search, such as that conducted by the

Deputy Sheriff in the instant case, was clearly prohibited.

The status of this “confirmatory” search under the Fourth

Amendment was then discussed, but left unresolved, by

this Court in Walter v. United States, supra, 447 U.S. 67,

100 S. Ct. 2395 (1980), where this C-xirt held unconstitu-

tional the opening of a package containing “‘obscene”’ reels

of film and the viewing of said reels of film on a movie

projector, without a warrant, after a private individual had

previously opened the package but had not actually viewed

the contents on the film. The Court, however, left unclear

that status of a warrantless search by law enforcement

officials when said search was only conducted to the

extent that the private party had previously searched:

Mr. Justice Stevens and Mr. Justice Stewart suggest that

the “plain view” examination of the contents of the pack-

age that had already been examined by third parties might

~10—

be allowable (100 S. Ct. at 2401), but this question was

reserved for a future decision (100 S. Ct. at 2402, n. 9).

Mr. Justice Marshal concurred in the judgment. Mr.

Justice White and Mr. Justice Brennan concurred in the

judgment but were of the opinion that any viewing by

governmental agents would only be proper without a

warrant if the private party had left the package in such

a state that the contents of the package were in “plain

view” for inspection by law enforcement officials and,

if the contents were not in “plain view,” a search warrant

would be required (100 S. Ct. at 2404, n. 3). Mr. Justice

Blackmun, the Chief Justice, Mr. Justice Powell and Mr.

Justice Rehnquist were of the opinion that a warrant

would iiot be required to search packages previously

searched by a private individual (100 S. Ct. at 2405, 2406).

The warrantless search conducted by the Deputy

Sheriff in the instant case presents this Court with the

issue unresolved in Walter v. United States, supra. The

Deputy Sheriff, while conducting an investigation, went

to a business competitor of petitioner GARTNER. While

interviewing the business competitor, the Deputy Sheriff

learned that private, non-contraband business records

belonging to petitioner GARTNER had been mistakenly

delivered to the business competitor’s office by a moving

company, that the business competitor had reviewed these

records, and that the business competitor was “‘curious”’

about the records. Knowing that the records belonged to

petitioner GARTNER and not to the business competitor,

the Deputy Sheriff entered the room containing the records,

opened the box containing the records, removed a file from

the box, opened the file and then reviewed the business

oo | J

records. It is quite clear that this was not a “plain view”

examination by the Deputy Sheriff and that the Deputy

Sheriff did not conduct this search under the impression

that the business competitor could give consent to search

the records. See Stoner v. California, 376 U.S. 483, 84

S. Ct. 889 (1964).

It appears to be evident that this warrantless “‘con-

firmation”’ search is unconstitutional. A contrary view

would allow the police to conduct a warrantless search

of a residence under the following hypothetical situation:

An informant, who has provided information

to law enforcement agents over a period of years,

is also a burglar; this informant enters a residence,

removes valuable jewelry from the residence; and

while in the residence, observes a large quantity of

marijuana. Some time after leaving the residence

the burglar/informant is arrested by law enforce-

ment officials; the burglar/informant then tells

law enforcement officials about the marijuana

he viewed within the residence.

It is undisputed that a warrant would be required in this

situation, even though law enforcement officials knew

what was located within the residence. There appears

to be no reason why a container of personal property,

given the protection of the search warrant requirement

in Sanders, supra, and Chadwick, supra, should be allowed

to be searched without a warrant, even though the privacy

of the container had been invaded by a private citizen, if :

the container is now closed.

Aside from the fact that this important constitutional

question was unresolved in Walter, supra, it is critical that"

7S

>.

ae ee

this Court resolve this question to clarify the law on this

point, to eliminate the present conflict amongst the circuits

in the United States Courts of Appeals. United States v. —

Kelly, supra; United States v. Newton, supra; Corngold v.

United States, supra; United States v. McDaniel, supra;

United States v. Ford, supra; and United States v. Pryba.

CONCLUSION

Petitioner’s conviction was based upon evidence

obtained in executing a search warrant. when the informa-

tion in the affidavit in support of the search warrant was

obtained by a prior warrantless search by a Deputy Sheriff.

It was admitted throughout the prosecution in the state

courts that the evidence relied upon in the prosecution

would have been unconstitutionally obtained if the prior

warrantless search by the Deputy Sheriff was unconstitu-

tional. This case presents this Honorable Court with the

opportunity to determine the constitutionality of a “‘con-

firmation” search, the legality of which was left unresolved

by this Court’s recent decision in Walter v. United States,

supra. It is respectfully submitted that this Court should

take this opportunity to resolve this question, to provide

guidance to the lower federal courts and the state courts

on this important constitutional issue.

Respectfully submitted,

MICHAEL D. NASATIR

NASATIR, SHERMAN, HIRSCH & RE

Counsel for Petitioner

'%

re.

INDEX TO APPENDIXES

Page

**A’” Orders of the Superior Court of the State of

California, County of Los Angeles, denying

petitioner’s motion to suppress evidence, mo-

tion to quash search warrant and motion to

traverse search warrant entered on May 18

WAR TOI Die BI TF oo aces e's cles aig whine ee 6 l

“B”’ Order of the Court of Appeal of the State

of California, Second Appellate District,

affirming petitioner’s conviction, filed

pi TE Oe GE a 3

“C” Order of the Supreme Court of the State

of California denying petitioner’s petition

for hearing, filed October 22, 1980 ........ 10

“D”’ Pertinent portions of statutes and constitu-

tional provisions involved

Fourth Amendment .............. 11

Fourteenth Amendment ............ 11

California Penal Code 81538.5 ...... 12

“E” Notice of Motion and Motion to Traverse

and Quash Search Warrant; to Suppress

Evidence (California Penal Code Section

1538.5, 1539; 1540), filed July 28,1978... 13

2 remot | ” v 41194

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

* : Ll«

MAY le 167%

Dete — . - rs id

mowosame: JTAMLEY R MALONE JK —_ J LES ifeK a

Pay | S$ CUCSE Basil traces a ACHES rate

CASE NO. (Parties and course! checked of present:

A341638 ‘cae a ew

PEOPLE OF THE STATE OF CALIFORNIA OEPUTY DISTRICT ATTY: v

vs

Ol GARTwER FAANCIS DUANE M “14S ATIR

ae 667.2 = 14CTS ae “He

(BOX CHECKED IF ORDER APPLICABLE)

ee)

ater « deagunia af SAAS f. XW) ew i o~l- 13

2 out TO LICT OF INTERESTS, PUBLIC OEFENOEA RELIEVED. PURSUANT TO SECTION 987.2 PENAL COOE.

IS APPOINTED.

33 oO . ON PEOPLE S$ MOTION, AMENOMENT TO. AMENDED INFORMATION FILED /OfEMED FILED, INFORMATION AMENDED BY

INTERLINEATION/AS FOLLOWS:

uQ on: MOTION, CASEA CONSOLIDATED WITH CASE A

ceveceseaneseenes AS COUNTIS).......--ccaceenee HEREOF, SEL CASE A FOR FURTHER PROCEEDINGS.

35 Ty MOTION PURS. SECT. 995 PC, GAANTED GENIED WITRORAWN/CONTINUED TO

Ys 1ON PURS. a 4 ® ING. iM SUBA TION NO, 40 6E.Cw.

C) cerenoant AOVISED OF CONSTITUTIONAL RIGHTS ANO EFFECT CF PRIOR CONVICTIONS. OEFENOANT WAI VES RIGHTS AND

ADMITS PRIOR( $) NO.

38 0 CAUSE IS CALLED FOR TRIAL, oO CAUSE SUBMITTED PER STIPULATION (NO. 40) BELOW.

” “Sar Grouse ctodeion COUNSEL WAIVE TRIAL BY JURY. COURT ACCEPTS WAIVER.

end ai! 1 sey@ +6 tuomutied on the fesnmery centered n the trenseriet of the sem ct eo

“0 sranminary pa enh ah Ay nae pw ge — yr | reternng ‘he > oles caaaaas agate’ Onn. ws. sens

entered into at the oraliminary entered inte in hese oroceec.ngs. it + further snewierec het en ennrets rece -o6 oF

the number as vied rt ten tay tytn a et ~ Pretemnary . ie

ware uted: res ’

admitted inte evidence by reference.

09: Che Cetantats aindenn cid niaaeiite waiviti tte nahn td eanthiitiatinah ethene tip Gu curdune-el tester auneacemntiien, 6:0 eens

prvdege e9aine! tertoncnemnenen.

42 couar STATES IT HAS READ ANO COmsioEREO TRANSCRIPT oF PRELIMINARY MEARING. e a

re) SHER5). MARRD Ate thas Aan $2 302rG 2. isnren se; Desires £2 Sas7oh “Jor=33=

22 rhe dezenccn tle atu vihis = sollesrivaiz. ‘aw re -e-s--s -~ =a ge aa ew

gal tiie sted

uX MOTION PURS. SECT. 138. 3 P.C. GRANTED ZEAE WWMERA MALL COIMOEIIN... 1559 and AS Sana. cdaienis

CALL SIDES REST. COUNSEL WAIVE ARGUMENT/ARGUE ANO CAUSE |S SUBMITTED.

oS COURT FINUS OSFENOANT NOT GUnTY D

- a

r-

47) ~=— ss Cour FINos OEFENDANT GuUItTT AS CHARGED TO SECTIS) IN

COUNTS$) (7 LESSER INCLUDED / RELATED OFFENSE.

a PRE-TRIAL CONFERENCE HELD/OFF CALENOAA/CONTINUED TO

“9 C) TWE COURT, OUE TO CONGESTEO CALENDAR, PRAMS TRIAL TO A OATE NOT LATER THAN

. OR TO SUCH EARLIER OATE AS A TRIAL COURT IS AVAILABLE,

oO On. MOTION, TRIAL, 1S CONTINUED TO/REMAINS

at AJA., 1M O6PT.

51 ()._—sC DEFENDANT PERSONALLY AHO ALL COUNSEL WAIVE TIME FOR TRIAL,

nO CAUSE TRANSFERRED TO CEPT OM ar Ass FOR

$3) Cs witess(es) sTRUcTEO To 2etuan On Asove DATE:

Ta Sl OHFINDANT Paasonaity WITMORAWS PLEA OF NOT GUILTY 10 Count’ 3) pee Maatac-t5.

$3) UK PASADEGUUTT NOLO CONTEMOERE, WITH CONSENT OF DISTRICT ATTORNEY ANO APPROVAL OF COURT. TO VICLATION

OF $8C%(5)_2 21nd _ £79 Senal Cade aa Te COUNT 5)

i. ery LESSER INCLUDED. FELATEO CFFEN IE

6 XX OUFENOANT WAIVES Tutd OM SENTENCE. HEPEREGD 9 PROBATION OUP aaTMENT,

an PAL tricen rey OIE i shag A A con

2 O1sPOsiTION oF counts 2s Dae Ts eee ° PUMAINING

(CD CRTERMINATION OF PRIORS ALLEGIO, O4G2EE, ARMED/ USE ALLEGATION.

57 ~ () OSPENOANT WAIVES PROBATION REPERRAL. REQUESTS IMMEDIATE SENTENCE.

ww SEE SENTENCE BELOW 585 ATTACHED SEET)

se PURTWER ORDER AS FOLLOWS:

=== —=

” O OEFENOANS FAILS TO APPEAR WITH, V/ITHOUT SUFFICIENT EXCUSE. =) ean soaretso — 0.8. EVOREO

oO BENCH WARRANT ORDERED (S3UED/ AND HELO UNTH MO GAN SAN PIKED ATS

8th oettnoant APPEALING BENCH WARRANT OSOERED FE=I—-OUASHED. STO ‘ ______

2 UPON PAYMENT OF $___ Costs serone ANO FILING OF REASSUMPTION, Of DER OF

PORFEITING BAIL 1S TO 84 VACATED ANO BAIL REINSTATED. _~

- 63 © etassumerion eto costs Palo (RECEIZT NO! ). SAM REINSTATED,

“. OLFENDANT'S MOTION FOR RELEASE ON O.8_ REDUCTION OF BAIL |S GRANTEO, DENIED.

ss 8 =6ts sam reserars

C remanceo TT san C aan exon. DATE INFORMATION Of INOICTAMENT FILED:

CG mcustooy ormen warren.

- 1 ageaseo ¥ on. C oncnasceo Ss: 13-74

246 FT. Ciaa.wey 12.77 MINUTE OROER BR | coumrvcute Dror

i , 5 - ar nad

Seas SUPERIOR ( IRTOF CALIFORNIA, COUNTY OF .SANGEL7S § 19D

nfs 14

Ore «= SULLY 2¢ 1479 DEPT.

suc: STALEY & BALCHE UR woos , J LESNICK tins Miat

i L504 PS men Scien W MCMAHUN ascot

CASE NO. " a l

A341638 sean or Cag Q ~ d ws

t%. PEOPLE OF THE STATE OF CALIFORNIA iT é DEPUTY DISTRICT ATTY:

vs

OL GARTNER FRANCIS OUANE aia

ounes 487.1 L4CTS 470 Coumet in Dart: .

(BOX CHECKED IF ORDER APPL:CABLE) ‘, .

— —TUTFTS ~.

a TLE han) mat. t%imalbcckestnatt Nbhisre dirrcgohoe-ci-78

IS SWORN AS THE ENGLISH/ INTERPRETER,

hn oe CRIMINAL PROCEEDINGS ACJOURNED/RESUMED.

id ry Lak * 24nd AATSENT Nec

%C} ‘on MOTION, PROBATION ANO SENTENCE HEARING CONTINUED TO

aT. AM. IN OPT. CsurpcemenTAa PROSATION REPORT/PROGRESS REPORT ORDERED.

SES: SENTENCE I$ IMPOSED AS FOLLOWS:

ED iM STATE PRISON FOR,’ ,__ TERM PRESCRIBED ay Law rora on lu) __veans._

COURT SELECTS THE tnd TEAM OF xrtang es sie as TO COUNT ‘-

Pn pus He Oa Seuss tat Count x

(ClcomrTren TO CALIFORNIA YOUTH AUTHORITY FOR A PERIOD NOT TO exceeD___ rears. Catena ©

(CMmMPRISONED IN LOS ANGELES COUNTY JaiL FOR TERM OF ___

“ PLUS PENALTY ASSESSMENT, TO GE PAIO TO COUNTY CLEA,

, Cofiwen i sum oF 8 T,

79 LJ) ——PROCELOINGS SUSPENDED. =

i.) sv PROGATION GRANTED FCA A PSRIOO OF. YEARS. (SEE CONOITIONS LISTEC BELOW.

st C——pnosarion To 86 wr rae Y eenen.

ys xX SPENO FIRST _ 1s. IN COUNTY JAIL. —«)._ ROAD CAMP OR HONOR FARM RECOMMENOES

CD WORK FUALGUGH PROGRAI RECOMMENDED. | = NOT TO 66 ELIGIBLE FOR COUNTY PAROLE.

: . 2. © PavFineors oo _s+Pa, TO COUNTY CLERK;PROGA TION OF PICEA IN SUCH wannen AS HE SHALL PRESS AE

» oF ee MINIMUM PAYMENT OF FINE/RESTITUTION TO GE $

a: 4 MAKE RESTITUTION THROUGH P.O. IM SUCH AMOUNT ANO MANNEA AS OFFICER SHALL paEsomie’.

; 5 CO — NOT ORINK ANY ALCOHOLIC SEVERAGE ANO STAY OUT OF PLACES WHERE THEY ARE THE CHIEF ITEM OF SALE

eer ae ‘ CO NOT USE OR POSSESS ANY NAACOTICS. CANGEROUS OR RESTRICTED OAUGS CR ASSCCIATES PARAPHERNALIA, EXCE™™

? WITH VALIO PRESCRIPTION, ANO STAY AWAY FROM PLACES WHERE USEAS CONGREGATE.

e ? OC — NOT ASSOCIATE WITH PEASONS KNCYIN SY YOU TO 28 NARCOTIC OR OMUG USERS CR SELLERS.

Cr & Cl SUBANIT TO PERIODIC ANTINAACOTIC TESTS AS DIRECTED SY THE PROBATION OFFICER.

ee PR 90 > HAVE NO BLANK CHECKS IN POSSESSION. NOT WRITE ANY PORTION CF ANY CHECKS. NOT HAVE SANK ACCOUNT UPa*.

7 WHICH YOU MAY OR AW CH —, .

_— 10 CO NOT GAMBLE OR ENGAGE IN MAKING ACTIVITIES OR MAVE PARAPHERNALIA THEREOF IN POSSESSION, AND NC

-* GE PRESENT IN PLACES WHERE GAMBLING CA SOOKMAKING 1$ CONOUCTED.

no— ASSOCIATES WITH, :

12 COOPERATE WITH PROBATION OMPICER IN A PLAN FOR pe Lien pL ——

130 SUPPORT OfPENOENTS AS OIRECTED BY PROBATION CFFICER.

14 Faseex ANO MAINTAIN TRAINING, SCHOCLING OR EMPLOYMENT AS APPROVED BY PROBATION CFFICER.

1s MAINTAIN RESIDENCE AS APPROVED BY PROBATION OFFICER.

‘6 SURRENDER CRIVER’S LICENSE TO CLEAK OF COURT TO 88 RETURNED 70 O.MV.

7 170) — NOT ORIVE A MOTOR VEHICLE UNLESS LAWFULLY L:CENSED ANO INSURED.

* 18 =C_- NOT Oviy, USE OR POSSESS ANY CANGEACUS OR OZAOLY WEAPONS.

19 —— SUBMIT HIS PERSON ANO PROPERTY TO SEARCH OR SEIZURE AT ANY TIME OF THE CAY OR NIGHT BY ANY LAW ENFC?.

CEMENT OFFICER WITH OR WITHOUT A WARRANT. :

OBEY ALL LAWS, ORDERS, RULES ANC REGULATIONS OF THE PROBATION DEPARTMENT ANO CF THE COURT.

CEFENOANT TO $6 GIVEN CAEOIT FOR f | C) Gays in CUSTOOY. °

SENTENCE/COUNTS TO RUN CONSECUTIVELY ENTLY WITH” . ile

STAY OF EXECUTION GRANTEO TO LY J

TTS PURSUANT TO SEC. 17 PENAL CODE, OF FEUSE |S CEELIED TO BE A W1SOE:SEANOR.

OX on marion oF peopte, counrs=II> , | be, oe = XL ONGMISSED IN FURTHERANCE OF JUSTICE

87_C]— count sovises OF ENOANT OF HIS APPEAL AIGHTS.:

: ADVISES OEFENOANT OF wiS PAROLS RIGHTS,

© XK — FUnTHER ORDER a8 FOL Lons/A001TIOMAt, CONDITIONS OF PROBATION: sae

2 inf (NOR ‘ fi onsen Je

Wie BAGG, LH Sh ecueZz

*yQz Pal 83 im : aE.

ee tiling og Malate ps .

, sda Nee PVA ER ppl sie s 60a

=O) oerenoant Aus aero witiamitTnour SuFICIeNT Excuse. Ulaanrunserrao (On. nevoxto

01 C5 — sence wannanr Onven€d SSULUIAND HELD UTIL. oo. ene OI yoean Lipaus Nr

92) OCF ENGANT Arr Arid. WENCH WARHANT (4100 11F 0 RECALLEL/OUACHED, .

eee? = wannantoranant ays imens th Laeeeee Awd. canein ge A OAAY senisatincnin, WITTEN,

Pirsanoco. D4 wan Qy ‘LARD. Crresnsunba CVA ek

JMELEASCO iJ on (COs ee ee S| : =| tes Lr?

Peeree S49. went gee * punt Rete senesP tye. JAlte, . st La | 3> es

~——-s. . e ~—— =e me

" & ht APPENDIX “A” p.2

APPENDIX “B”’ 3.

ORDER AFFIRMING PETITIONER’S CONVICTION

In the Court of Appeal of the State of California,

Second Appellate District, Division Two.

PEOPLE.OF THE STATE OF CALIFORNIA, Plain-

tiff and Respondent, vs. FRANCIS DUANE GARTNER,

Defendant and Appellant.

2 CRIM. NO. 35858 (Super. Ct. No. A341638)

CERTIFIED FOR PUBLICATION

[FILED AUGUST 4, 1980]

APPEAL from a judgment of the Superior Court of

Los Angeles County. Stanley R. Malone, Jr., Judge.

Affirmed.

Michael D. Nasatir, and Nasatir, Sherman, Hirsch &

Re, for Defendant.and Appellant.

George Deukmejian, Attorney General, Robert H.

Philibosian, Chief Assistant Attorney General—Criminal

Division, §. Clark Moore, Assistant Attorney General,

Shunji Asari and Mark Alan Hart, Deputy Attorneys Gen-

eral, for Plaintiff and Respondent. —

NATURE OF CASE:

On his plea of no contest, appellant was convicted

of grand theft and forgery. On his appeal, permitted under

Penal Code section 1538.5 (m), he challenges the trial court’s

denial of his motion to suppress. The issue raised is whether

~

’%

|

Appendix

the examination of private business records by a private

citizen was or became state action, requiring suppression

of the evidence discovered thereby.

Th. affidavit supporting the search warrant in this

case alleged the following facts: on June 10, 1977,

Donald Parton of Parton Oil Company, the victim in

count one, received from an anonymous sender an envel-

ope containing invoices indicating refunds to Parton’s

firm totaling $8,732 on two insurance policies each of

which had been issued to the firm by two separate

insurance companies through appellant’s casualty insur-

ance agency. Parton in fact never received any refund.

When he contacted Henry Marvin, an insurance agent

for appellant, Marvin verified the fact that refunds were

due to Parton’s firm. Parton then filed a complaint with

the Antelope Valley Sheriff.

In the course of his investigation, Deputy Sheriff

Robert Henley was told by Henry Marvin that appellant

had, for his own benefit, appropriated the refunds due

Parton. Deputy Henley then contacted Jack Boyer, the

new owner of appellant’s insurance agency since June 2,

1977. Boyer told the deputy that his purchase of appel-

lant’s agency included the files for the period covering

1972 to 1977, that during the move some of appellant’s

records, which also covered that same period, were inad-

vertently left with Boyer by the movers, and that when

Boyer went through those records, he discovered that

from 1972 to 1977 appellant had regularly appropriated

for his own use monies due various policyholders who had

Appendix 5.

insurance coverage through his agency. From records subse-

quently shown him by Boyer, Deputy Henley compiled a

list! of 177 policyholders whose refunds due them appeared

to have been used by appellant for his own benefit. Thirteen

of these policyholders were contacted by Deputy Henley; all

acknowledged never having received any refund. In going

through the records Boyer had showed him, Deputy Henley

also discovered that in some cases appellant used the refunds

to pay for life insurance policies he took out on the policy-

holders. When Deputy Henley talked to these policyholders,

they told him they had never applied for such life insurance.

Linda Warden, one of appellant’s employees, told _

Deputy Henley she had personally observed appellant

forge policyholders’ signatures on refund checks and on

applications for loans and life insurance. On several

occasions Warden had, on appellant’s orders, forged

policyholders’ names on loan applications. Warden inform-

ed Deputy Henley of 16 specific instances where appellant

had misappropriated policyholders’ funds. Deputy Henley

interviewed six of these policyholders; they all corroborated

the information given previously by Warden.

Based on his experience as a fraud investigator and the

information known to him, Deputy Henley concluded there

was probable cause to believe that appellant had committed

the crimes of forgery and grand theft. Accordingly, Deputy

Henley applied for a search warrant, authorizing a search of

appellant’s office for specified documents pertaining to those

policyholders who appeared to have been victimized by

appellant’s dishonest actions. A magistrate concluded there

Lrhe list was attached to the affidavit.

Appendix 6.

was probable cause and issued the warrant.

DISCUSSION:

Appellant contends that since the documents in Jack

Boyer’s possession at the time of the allegedly illegal search

complained of belonged to appellant, Boyer was without

authority to permit Deputy Henley access to those records.

Hence, appellant argues, those documents were obtained in

violation of his right to privacy. We reject appellant’s con-

tention.

The conduct of a person not acting under the author-

ity of a governmental unit or agency is not proscribed by

either the federal or the California Constitution. (People

v. Zelinski (1979) 24 Cal. 3d 357, 365; Soli v. Superior Court

(1980) 103 Cal. App. 3d 72, 83; People v. Katzman (1968)

258 Cal. App. 2d 777, 786) Thus, acquisition of property

by a private citizen from another person cannot be deemed

reasonable or unreasonable and in such a situation Penal

Code section 1538.5, which concerns only the suppression

of evidence obtained by government agents, not private

individuals acting on their own initiative, has no application.

(People v. Superior Court (Smith) (1969) 70 Cal. 2d 123,

128-129.)

In applying the exclusionary rule to evidence improperly

acquired by government officials, the courts have emphasized

that the rule serves to deter unlawful conduct on the part of

such agencies by removing the incentive to disregard it. For

instance, in the case of an organized police force it is assum-

ed that its officers will have knowledge of the exclusionary

rule as a result of directives from the higher echelons and

that their desire to secure convictions, coupled with their

Appendix x

discipline, will produce compliance with the rule. (People

v. Botts (1967) 250 Cal. App. 2d 478, 482.) On the other

hand, except in unusual cases, we cannot assume that private

citizens have knowledge of the exclusionary rule, that they

are under any disciplinary compulsion to obey such a rule,

or that they will not be motivated in their conduct by

reasons other than, or in addition to, a desire to assist in

obtaining a criminal conviction. (/bid.) To apply the

exclusionary rule in the latter instance would result in

letting the guilty go free without any assurance that similar

conduct will be restrained in the future. (/d. at pp. 482-483.)

In determining whether a citizen acted as an agent of

the state, deference must be given to the findings of the

court below. (People v. Topp (1974) 40 Cal. App. 3d 372,

377.)

The record in this case establishes that Boyer was

acting on his own initiative when he went through the files

in question, inadvertently left with Boyer by the movers.

Evidence introduced at the preliminary hearing? showed

that Boyer’s search of the records was prompted by a letter

he received from Aetna Life and Casualty Company regard-

ing a dividend check that appellant allegedly had failed to

give to a policyholder and asking Boyer to check the records,

At the time Deputy lienley talked to Boyer, the latter had.

already gone through those files and discovered appellant’s

misappropriation of policyholders’ funds. When Boyer,

after being contacted by Deputy Henley, revealed this

information to the deputy and provided him access to the

files in question, there was no impermissible state action.

2 ,

Rg rane wh Le ression motion under Penal Code section 1538.5, pursuant

Pecipulation. was submitted on part of the transcript of the preliminary

°>

Appendix 8.

The fact that Boyer showed the files to Deputy Henley

only after he had been contacted by the deputy did not

transform Boyer’s actions into “state” action, as appellant

is claiming. The relevant question is not who initiated the

contact but who initiated the search. (People v. Pranke

(1970) 12 Cal. App. 3d 935, [after police told the defendant’s

friend they were looking for the defendant in connection with

a burglary investigation, the friend invited the officers into

his apartment to check over certain property which the

defendant had left in his custody—judgment of conviction

upheld] .)

As to appellant’s argument that Jack Boyer was under

a duty to return the files to appellant after appellant made

such a request prior to the issuance of the serach warrant,

nothing in the law suggests that a citizen who finds contra-

band or evidence of a crime is under a duty to return such

property to the perpetrator of the crime. It appears that in

this case Boyer merely delayed the return of the files in

question until the police had obtained a search warrant. In

any event, any delay in Boyer’s return of the records to

appellant is not dispositive of the issue before us.

Here, as we have seen, whatever violation there was of

appellant’s right of privacy, if any, took place prior to any

police action, when Boyer, prompted by an inquiry of one

of the insurance companies, went through the records and

discovered appellant’s dishonest conduct. As we stated earlier,

in those situations where the challenged evidence was obtained

by a private citizen, acting on his own, the courts have refused

to apply the exclusionary rule. (People v. Superior Court,

supra, 70 Cal. 2d 123, 128-129; People v. Sahagun (1979)

89 Cal. App. 3d 1, 19; People v. Botts, supra, 250 Cal. App. 2d

Appendix 9.

478, 481.)

We agree with the trial court that Boyer‘s actions did

not constitute state action. The evidence concerning Deputy

Henley’s observations of appellant’s records, furnished to the

deputy by Boyer, was therefore properly admitted. (People

v. Topp. supra, 40 Cal. App. 3d 372, 377-378.) There was

no error. Other issues which we deem unsubstantial we have

considered and discussed in a separate written memorandum

contemporaneously filed with this opinion.

The judgment of conviction [order granting probation]

is affirmed.

CERTIFIED FOR PUBLICATION

BEACH, J.

We concur:

ROTH, P. J.

FLEMING, J.

APPENDIX “C” 10.

ORDER DENYING HEARING

After Judgment By The Court Of Appeal

2nd District, Division 2, Crim. No. 35858

In the Supreme Court of the State of California

IN BANK

PEOPLE v. GARTNER

[FILED OCTOBER 22, 1980]

Appellant’s petition for hearing DENIED.

BIRD,

Chief Justice

APPENDIX “D” | 11.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

AMENDMENT IV—SEARCHES AND SEIZURES

“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.”

AMENDMENT XIV—CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCESS; EQUAL

“Section 1. All persons born or naturalized

in the United States, and subject to the juris-

diction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law

which shall abridge the privileges or immun-

ities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.”

>.

Appendix 12.

CALIFORNIA PENAL CODE

8 1538.5 Motion to return property or suppress evidence

“(a) Grounds

(a) A defendant may move for the return of proper-

ty 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 warrant was

unreasonable because (i) the warrant is insufficient

on its face; (ii) the property or evidence obtained

is not that described in the warrant; (iii) there was

not probable cause for the issuance of the warrant;

(iv) the method of execution of the warrant violated

federal or state constitutional standards; * * * (v)

there was any other violation of federal or state con-

stitutional standards.

“es

“(m) Exclusive pre-trial remedy; review on appeal

after conviction

(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 reiurn of property or the suppression of evidence

is a defendant in a criminal case and the property or

thing has been offered or will be offered as evidence

against him. A defendant may seek further review

Appendix 13.

of the validity of a search or seizure on appeal

from a conviction in a criminal case notwith-

standing the fact that such judgment of convic-

tion is predicated upon a plea of guilty. Such

review on appeal may be obtained by the de-

fendant providing that at some stage of the.

proceedings prior to conviction he has moved

for the return of property or the suppression’

of the evidence.

“ec ”

.

APPENDIX “E”

NOTICE OF MOTION AND MOTION TO TRAVERSE

AND QUASH SEARCH WARRANT; TO SUPPRESS

EVIDENCE (CALIFORNIA PENAL CODE SECTION

1538.5; 1539; 1540)

In the Superior Court of the State of California for the

County of Los Angeles.

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,

v. FRANCIS DUANE GARTNER, Defendant.

NO. A 341638

{FILED JULY 28, 1978]

TO THE CLERK OF THE ABOVE ENTITLED COURT AND TO

THE PEOPLE OF THE STATE OF CALIFORNIA AND THEIR ATTOR-

NEYS:

i

Appendix 14,

PLEASE TAKE NOTICE that the Defendant FRANCIS

DUANE GARTNER will move on August 28, 1978 at the hour

of 9:00 a.m. or as soon thereafter as counsel may be heard in

Department 130 of the above entitled court, and hereby does

move to quash the search warrant issued for the offices

located at 23550 Lyons Avenue, Suite 204 and 205, Valencia,

California and the offices of Jack Boyer, located at 2354

Lyons Avenue, Valencia, California, and based upon the

affidavit of Robert Henley, Deputy Sheriff for the County

of Los Angeles. This motion further seeks pursuant to

California Penal Code Section 1538.5 a de novo hearing

on the motion to suppress evidence. This motion, more

specifically, will be for the following relief.

1. To traverse and quash the aforementioned search

warrant;

2. Tosuppress and return any evidence or the fruits

thereof seized pursuant to or under the purported

authority of the aforementioned search warrant,

including but not limited to each of the items

listed on the return thereto;

3. Tosuppress all observations, statements, confes-

sions, admissions or other evidence, or any fruits

thereof seized during the execution of said warrant;

4. For an evidentiary hearing to contest various

factual misstatements contained within the

affidavit of Robert Henley, and to strike from

such affidavit various items of evidence obtained

as a result of an illegal search and seizure.

5. Fora de novo hearing to determine the legality

of the search and seizure of various items of

evidence intended to be introduced by the

Appendix 15.

People in the trial of the instant case.

. This motion will be made upon the following

grounds:

1. That the affidavit in support of the search

warrant is insufficient to establish probable

cause that a crime has been committed or

that the property to be seized is at the location

to be searched;

2. That the warrant is overbroad and general and

that it fails to particularly describe the property

to be seized in violation of the Fourth Amend-

ment to the United States Constitution, Article

I Section 19 of the California Constitution; and

California Penal Code Section 1525;

3. That the execution of the warrant and the

seizure of material thereunder was overbroad and

in violation of the Fourth Amendment to the

United States Constitution and Article I Section

19 of the California Constitution;

4. That various material misrepresentations con-

tained in the affidavit, and relied upon in support

of probable cause, were, factually inaccurate and/or

obtained as a result of a prior illegal search and

seizure.

5. That various items of evidence which the People

intend to introduce at the trial of the instant

matter were obtained as the result of an illegal

search and seizure.

This motion is brought pursuant to the authority of

California Penal Code Section 1538.5, 1539 and 1540 and

is based upon the records and files of the instant case, the

'*%

-

Appendix 16.

aforementioned search warrant, the affidavit in support

thereof, the return thereto, this Notice of Motion, the

points and authorities attached hereto and any further

oral or documentary evidence, including any further

points and authorities as may be introduced at the time

of the hearing on this motion.

DATED: July 27, 1978

MICHAEL NASATIR

Nasatir, Sherman & Hirsch

9911 West Pico Boulevard, Suite 1000

Los Angeles, California 90035

Telephone (213) 277-3112

Attorneys for Defendant

The Defendant hereby specifically reserves the right

to produce additional authorities upon the issues raised

herein but outlines for the convenience of the court and

counsel the primary issues to be raised upon this motion

to quash.

I

THE AFFIDAVIT RELIES UPON CONSTITU-

TIONAL INSUFFICIENT HEARSAY INFORM-

ANT INFORMATION.

Aguilar v. Texas, 378 U.S. 108 (1964);

Spinelli v. United States, 393 U.S. 410 (1969);

Alexander v. Superior Court, 9 C 3d 387 (1973).

e™

Appendix 17.

II

THE SEARCH WARRANT IS OVERBROAD

AND IN VIOLATION OF THE CALIFORNIA

AND FEDERAL CONSTITUTIONS IN THAT

IT DOES NOT PARTICULARLY DESCRIBE

THE ITEMS TO BE SEIZED.

Marron v. United States, 275 U.S. 192 (1927);

Aday v. Superior Court, 55 C 2d 789 (1961);

Griffin v. Superior Court, 26 C A 3d 372 (1972);

Burrows v. Superior Court, 13 C 3d 228 (1974).

Ill %

THE AFFIDAVIT IN SUPPORT OF THE

WARRANT FAILS TO ESTABLISH PROB-

ABLE CAUSE TO BELIEVE THAT THE

ITEMS TO BE SEIZED ARE AT THE LOCA-

TION TO BE SEARCHED.

Alexander v. Superior Court, supra;

Burrows v. Superior Court, supra.

IV

THE DEFENDANT REQUESTS AN EVIDEN- |

TIARY HEARING TO TRAVERSE THE

WARRANT WITH REGARD TO MATERIAL

MISSTATEMENTS AND WITH REGARD TO

RELIANCE UPON EVIDENCE ILLEGALLY

SEIZED.

Theodore v. Superior Court, 8 C 3d 77 (1972).

CONCLUSION

For the reasons cited above it is respectfully submitted

° >

Appendix 18.

that the instant warrant should be traversed and quashed.

DATED: July 27, 1978.

Respectfully submitted,

MICHAEL D. NASATIR

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, over the age of

eighteen years and not a party to the within action or proceeding; that

My business address is 32614 Main Street, Huntington Beach, California 92648,

thaton DECEMBER _, 1980, I served the wtihin PETITION FOR WRIT

OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, SECOND APPELLATE DISTRICT, on the following named

parties by depositing the designated copies thereof, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States Post

Office in the City of Huntington Beach, California, addressed to said parties

at the addresses as follows:

ATTORNEY GENERAL

STATE OF CALIFORNIA

3580 Wilshire Boulevard, Room 800

Los Angeles, California 90010 (3 copies)

CLERK, SUPERIOR COURT OF LOS ANGELES COUNTY

111 North Hill Street

Los Angeles, California 90012

Ref. Case No. A 341638

Hon. Stanley R. Malone, Jr., Judge Presiding

(1 copy)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on DECEMBER 1980, at HUNTINGTON BEACH, CALIFORNIA.

DEAN-STANDEFER, 326% Main St., Huntington Beach, Ca.

(714) 536-7161