Petition for Writ of Certiorari — Berger v. California

; (

No. 25-85 186 )

Supreme Court, U.S.

~ BILE D

| MAY 8 1986

JOSEPH F. SFANIOL, JR,

CLERK

IN THE SUPREME COU

OF THE f

he

UNITED STATES

OCTOBER TERM, 1985

MARC LEE BERGER,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

PETITION FOR WRIT OF CERTIORARI

MEL GRIMES, JR.

Attorney at Law

706 Forest Avenue

P.O. Box 37

Pacific Grove, CA 93950

Telephore: (408) 373-4338

Attorney for Petitioner

Counsel of Record

QUESTIONS PRESENTED

Should marijuana be excluded at trial

where the marijuana is discovered

during an illegal warrantless aerial

search and where the officers use

the discovery to obtain and execute

a search warrant; and

Did Petitioner have an objectively

reasonable expectation of privacy in

the area within 40-80 yards of his

rural home?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

PAGE

iii

TABLE OF AUTHORITIES

Fourth Amendment to the

United States Constitution

Fourteenth Amendment to the

United States Constitution

28 United States Code §1257(3)

Oliver v. United States (1984)

SOG Uses 27G—e S08 Be CEe L73D0

80 L. Ed. 2d 214

People v. Sneed (1973)

32 Cal. App. 3d 535,

108 Cal. Rptr. 146

No. 85-

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1985

MARC LEE BERGER,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Resvondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

Petitioner, Marc Lee Berger,

respectfully prays that a Writ of

Certiorari issue to review the majority

opinion of the California Court of Appeal

which affirmed the Superior Court's

\ holding that the challenged overflight

did not violate Petitioner's rights under

the United States Constitution.

OPINION BELOW

The Court of Appeal opinion in

this case was filed on December 23, 1985,

and was unpublished.

JURISDICTION

Petitioner invokes the

jurisdiction of this Court under 28 U.S.C.

§1257(3) on the ground that his rights

under the Fourth Amendment to the United

States Constitution were violated.

The California Court of Appeal

entered its order rejecting Petitioner's

Fourth Amendment claim on December 23,

1985. (Appendix at p. l).

The California Supreme Court

denied a hearing in this case on March 20,

1986. (Appendix at pd. 26). The instant

Petition for Writ of Certiorari is filed

within 60 days of that order.

CONSTITUTIONAL PROVISIONS

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.

U.S. Const. Amend. IV.

STATEMENT OF THE CASE

During the summer of 1982,

rural areas of Monterey County,

California, were used by law enforcement

agencies as an area in which to train

officers in the skill of aerial

surveillance for marijuana cultivation

(RT 75:3; 258:12).2/ This area included

Petitioner's property, a ranch of

approximately 360 acres. Prior to the

l/ "RT" refers to the Reporter's

Transcript from the Preliminary

Examination which is contained in the

record in the Court of Appeal.

overflights, law enforcement had

uncorroborated information from an

unknown informant indicating that

marijuana was being grown in a greenhouse

in the area of Petitioner's property (RT

32:19; 47:12; 216:22).

After sighting what they

believed to be marijuana, officers made

several more investigative passes over

the property to confirm their suspicions

and to educate the officer-students

(RT 31:20; 64:25; 408:21; 413:9; 476:7).

On the basis of the information thus

obtained, a search warrant was obvained;

its execution yielded over 70 marijuana

plants (RT 377:7-379:13).

Petitioner's Fourth Amendment

claim was made in, and rejected by, both

the Superior Court and the Court of

Appeal. In his motion to suppress

evidence in Superior Court, Petitioner

stated, quoting People v. Sneed (1973)

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32 Cal. App. 3d 535, 108 Cal. Rptr. 146

[emphasis supplied]:

Though a person may have

consented to observations from

some sources and by some persons

and therefore cannot have a

reasonable expectation of privacy

as to those sources or persons,

he does not thereby forego his

Fourth Amendment protection as

to intrusions from all sources

and by all persons, and

particularly has not waived his

right to privacy as to government

agents.

The Superior Court denied the

motion to suppress on November 15, 1983.

See Appendix at p. 24.

In the Court of Appeal,

Petitioner raised his Fourth Amendment

claim at page 5 of his opening brief by

"contend[ing] that the warrantless aerial

surveillances of his residence and

adjacent property constitute[d] an

infringement on his right to be free from

governmental intrusions that violate the

Fourth Amendment of the United States

Constitution, made applicable to the

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states through the Fourteenth Amendment

to the United States Constitution..."

Petitioner contended that the

searched area in question was not an

"open field" within the meaning of

Oliver v. United States (1984) 466 U.S.

170, 104 S. Ct. 1735, 80 L. Ed. 2d 214,

and that therefore "that area is to

‘remain private'."

Petitioner's conviction was

affirmed on December 23, 1985. See

Appendix at p. l.

REASONS FOR GRANTING THE WRIT

This case presents an intriguing

issue, one of widespread importance to

the bench, bar, and law enforcement

nationwide. That issue is the inter-

relationship of the "fruit of the

poisonous tree" doctrine and the "good

faith" exception to the exclusionary rule.

In this case the marijuana was

discovered during an allegedly unlawful

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aerial search of the Petitioner's

property. Based on the information thus

obtained, officers obtained a search

warrant. Execution of the warrant turned

up contraband, including the very marijuana

plants first viewed (without a warrant)

from the air.

Assuming the aerial surveillance

constituted an illegal search, all

evidence obtained as a result thereof

should be excluded from trial as "fruit

or the poisonous tree." Will the result

be different when a search warrant is the

result of an illegal search (i.e., the

"poisoned fruit”)? Isn't reliance on the

"good faith" exception misplaced where

the challenged search is not the search

pursuant to the warrant, but rather the

original warrantless search (which directly

led to the warrant) ?

In this case both Petitioner

and Respondent are correct in their

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assertions. Yes, the warrant was, in

fact, obtained as a direct result of an

illegal search; and yes, the officers

acted in good faith on a facially valid

search warrant. The tension thus

presented is clear, as is the need for

a definitive resolution.

The legality of the original

discovery is, of course, a key issue.

The property herein is situated in an

area that can be characterized as neither

Suburban nor as a vast expanse of ranch

or undeveloped woods. The instant

property is something between those poles,

as are many properties in this country to

which people move to avoid intrusions

into their privacy. The extent of the

privacy rights of such people is open to

question, as noted in the opinion of the

Court of Appeal at footnote 2 (Appendix

at p. 8) [Propriety of curtilage/non-

curtilage distinction in analysis of

reasonableness of aerial surveillance is

open to question].

CONCLUSION

For the foregoing reasons, this

Court is respectfully requested to grant

a writ of certiorari to review the

judgment and opinion of the California

Court of Appeal.

Dated: April 30, 1986

MEL GRIMES; “JR.

Attorney for Petitioner

FR ES SF eT oe BER nos,

APPENDIX

RM ®RST a eee

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

Vv.

MARC LEE BERGER,

Defendant and Appellant.

(A026332)

(Monterey County

Sup. Ct. No. MCR 4878)

A criminal defendant, convicted

by plea of cultivating marijuana and

possessing hashish, complains on appeai

that the evidence seized in a law

enforcement raid on defendant's ranch

should have been suppressed, because

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sheriff's officers had made observations

on which a search warrant for defendant's

ranch was based by means of warrantless

airplane flights over the ranch, and

because television news crews accompanied

the officers who participated in the

execution of that search warrant.

The judgment is affirmed.

Statement of Facts

Testimony at the preliminary

hearing in this case revealed the

following facts.

On July 27 and 28, 1982,

Monterey County sheriff's officers, acting

on a tip, used airplanes to fly over

defendant's property, a 360-acre ranch

in the upper Carmel Valley, at estimated

altitudes of 500 feet to 2,000 feet above

the ground. The officers saw marijuana

plants growing there. After consultation

with a deputy district attorney, the

officers obtained a search warrant for

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defendant's property.

On July 29, 1982, numerous

officers went to defendant's property

to serve the search warrant. Film crews

from the American Broadcasting Company

accompanied the officers and filmed their

activities, which included the arrest of

defendant and two other persons who were

on the property. The officers found and

seized hashish which was on defendant's

person, cocaine which was in a jar under

an abandoned building, and over 70

marijuana plants which were growing in

three gardens connected to each other

and to defendant's trailer home by

footpaths.

Procedural History

An information filed August 15,

1983, accused defendant of cultivation

of marijuana (Health & Saf. Code, §11358),

possession of marijuana for sale (Health

& Saf. Code, §11359), and possession of

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concentrated cannabis (Health & Saf. Code,

§11357, subd. (a)). On November 15, 1983,

after consideration of the preliminary

hearing transcript and live testimony,

the superior court denied defendant's

motion for suppression of all the

evidence seized in the July 29, 1982,

raid on defendant's ranch.

On December 5, 1983, pursuant

to a plea bargain, defendant pleaded

guilty to the courts of the information

charging him with cultivation of marijuana

and possession of concentrated cannabis.

The trial court, thereafter, suspended

imposition of defendant's sentence and

placed him on probation for five years,

with conditions, including payment of a

$5,000 fine and service of 100 days in

the county jail. The count of the

information charging defendant with

possession of marijuana for sale was

dismissed pursuant to the plea bargain.

The trial court allowed the defendant to

remain free on bail pending the outcome

of this appeal.

Aerial Surveillance

Defendant contends that

officers looking at his ranch from the

air was a warrantless general search,

violative of the state and federal

Constitutions. Defendant relies

particularly on People v. Ciraolo (1984)

161 Cal.App.3d 1081, cert. granted

June 3, 1985, _U.S.__—__—s« (86 L.Ed. 2d

691, 105 S.Ct. 2672]; Dow Chemical Co. v.

U.S., by and through Gorsuch (E.D.Mich.

1982) 536 F.Supp. 1355; and People v.

Sneed (1973) 32 Cal.App.3d 535.

The People trace the development

of California decisional law on aerial

surveillance, and conclude that this body

1/

of law= overwhelmingly supports the

1/ People v. Sneed, supra, 32 Cal.App.3d

| 535 (reversing conviction based on

warrantless seizure after helicopter

surveillance); Dean v. Superior Court

(1973) 35 Cal.App.3d 112 (refusing to

mandate superior court to set aside

indictment based on warrantless seizure

after airplane surveillance); People v.

Superior Court (Stroud) (1974) Cal.

App.3d 836 (mandating superior court to

set aside its order suppressing evidence

seized without warrant after helicopter

surveillance); Burkholder v. Superior

Court (1979) 96 Cal.App.3d 421 (upholding

reasonableness of aircraft surveillance,

but mandating superior court to suppress

evidence seized in ensuing ground search

without warrant); People v. Sti. Amour

(1980) 104 Cal.App.3d 886 (affirming

conviction based on seizure pursuant to

search warrant after plane surveillance) ;

People v. Joubert (1981) 118 Cal.App.3d

637, Opinion after remand (1983) 140 Cal.

App.3d 946 (upholding reasonableness of

airplane surveillance, but remanding for

hearing on omissions from affidavit in

support of a search warrent); Tuttle v.

Superior Court (1981) 120 Val.App.3d 320,

cert. den. (1981) 454 U.S. 1033 [70 L.

Ed.2d 477, 102 S.Ct. 571] (upholding

reasonableness of aerial surveillance,

but prohibiting prosecution because of

improper nighttime service of search

warrant); People v. Egan (1983) 141 Cal.

App.3d 798 (reversing judgment of

dismissal entered after suppression of

evidence seized pursuant to search warrant

ensuing from aerial surveillance); People

v. Ciraolo, supra, 161 Cal.App.3d 1081

(reversing conviction based on seizure

pursuant to search warrant after airplane

surveillance).

reasonableness of such surveillance.

The seizure found to be

unreasonable in People v. Sneed, supra,

32 Cal.App.3d 535, was without warrant

and, therefore, presumptively unreasonable.

The seizures in this case were pursuant

to search warrant and, therefore,

presumptively reasonable. Sneed is thus

distinguishable from this case and does

not aid defendant.

In Dow Chemical Co. v. U.S., by

and through Gorsuch, supra, 536 F.Supp.

1355, the federal district court enjoined

aerial surveillance which the Environmental

Protection Agency ordered to investigate

suspected violations of the Clean Air Act.

However, reversal by the Sixth Circuit

Court of Appeals has stripped the district

court's opinion of its precedential

value. (Dow Chemical Co. v. United

States (1984) 749 F.2d 307, cert. granted

June 10, 1985, U.S. [86 L.Ed.2d

People v. Ciraolo, supra, 161

Cal.App.3d 1081, is aiso distinguishable

from this case. The aerial observation

under attack in Ciraolo was of "the back

yard of a Santa Clara home." (Id., at

p. 1085.) The Ciraolo court uses a

classical curtilage analysis to conclude

that an urban backyard enjoys consti-

tutional protection from police

overflights.2/ (Id. at pp. 1087-1090;

cf. Oliver v. United States (1984) 466

U.S. 170 [80 L.Ed.2d 214, 224-225, 104

S.Ct. 1735, 1741-1742] [cited by both

parties].) The geographical setting in

this case, a ranch, is significantly

different.

2/ Whether a distinction between

curtilage and noncurtilage areas is an

appropriate approach from which to

analyze the reasonableness of aerial

surveillance is open to question. (See

United States v. Bassford (D.Me. 1985)

601 F. Supp. 1324, 1331.)

- » « The appellate courts of

this state have consistently upheld

aerial surveillance from lawful altitudes

over rural and relatively unpopulated

property." (People v. Egan, supra, 141

Cal.App.3d at p. 806.) We are in

agreement with these holdings.

Defendant's ranch was

unquestionably rural property. Therefore,

safety-conducted airplane flights at

altitudes of 500 feet or more over the

ranch surface were lawful. (Pub. Util.

Code, §21403; 14 C.F.R. §91.79, subd.

(c).) The evidence before the trial

court in this case abundantly supported

a finding that the flights of the officers

were at lawful altitudes. Although one

defense witness testified that an

airplane circled over defendant's ranch

as low as two or three hundred feet above

the top of a hill, that witness could not

identify the plane in question as being

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similar to either of the airplanes used

by the officers, and conceded, "There is

[sic] planes flying over there all the

CAMP whe «¢ ”

We conclude that the aerial

surveillance in this case violated no

constitutional proscription.

We are aware that cases

involving attacks on the constitutionality

of aerial surveillance are now pending

before the California Supreme Court , 2/

but even should it rule that aerial

surveillance such as occurred in this

case violates the state or the federal

Constitution, that determination would

not compel suppression of evidence or

reversal of defendant's conviction.

3/ People v. Mayoff (1983) 150 Cal.App.

3d 7 g. granted March 22, 1984, Crim.

23608); People v. Cook (1984) 151 Cal.

App. 3d {SOT the. granted April 19, 1984,

Crim. 23651); People v. Agee (1984) 153

Cal.App.3d 1169 (hg. granted May 24,

1984, Crim. 23738).

11

Inasmuch as the search and

seizures of which defendant complains,

and the crimes of which he was convicted,

all took place after June 8, 1982,

article I, section 28, subdivision (d)

(the “truth-in-evidence” provision) of

the California Constitution applies to

this case. (People v. Smith (1983) 34

Cal.3d 251, 262.) Under truth-in~-evidence,

there are no independent state grounds

for suppression of evidence, and only the

federal exclusionary rule applies. (In

re Lance W. (1985) 37 Cal.3a 873, 890.4/

Under the federal exclusionary rule,

evidence seized in objective good faith

reliance on an invalid search warrant is

admissible. (United States v. Leon (1984)

4/ In his opening brief, defendant makes

a strenuous argument for exclusion of

evidence on independent state grounds in

this case. In re Lance W. which was

filed after defendant filed his opening

brief, refutes all of defendant's

argument, as we see no more of it in

defendant's reply brief.

12

__U.S.. —s—s- (82 L.Ed@.2d 677, 104 S.Ct.

3405].) The rule announced in Leon

applies in all federal prosecutions,

through the supervisory power of the

United States Supreme Court over the

federal trial courts. (See Weeks v.

United States (1914) 232 U.S. 383 [58

L.Ed. 652, 34 S.Ct. 341].) The same

federal rule applies to state criminal

prosecutions as well, through the

operation of the Fourteenth Amendment.

(Massachusetts v. Sheppard (1984)

U.S. [82 L.Ed.2d 737, 104 S.Ct. 3424];

cf. Mapp v. Ohio (1961) 367 U.S. 643, 655.)

This rule operates retroactively, to allow

admission of evidence seized before the

rule was announced. (United States v.

Henderson (9th Cir. 1984) 746 F.2d 619,

625, cert. granted Oct. 15, 1985 [ L.Ed.

2d , 106 S.Ct. 225]; United States v.

Hendricks (9th Cir. 1984) 743 F.2d 653,

cert. den. (1985) B.8s [84 L.Ed.

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13

2d 382, 105 S.Ct. 1362).)

People v. Ciraolo, supra, 161

Cal.App.3d at pp. 1085-1086, holds that

the rule announced in Leon cannot anply

when a search warrant is invalid because

that warrant is based on information

which is the fruit of a warrantless

overflight which constitutes an unconsti-

tutional search, relying on Segura v.

United States (1984) 3.8. [82 L.

Ed.2d 599, 104 S.Ct. 3380]. This holding

is incorrect. It misperceives the reason

why the Segura court did not apply Leon.

In Segura v. United States the

court did not apply Leon because there

was no need to do so. The search warrant

pursuant to which officers seized

evidence in Segura, unlike the search

warrant in Ciraolo, was valid, and the

United States Supreme Court logically

concluded that the Fourth Amendment did

not require suppression of evidence

14

discovered and seized during execution of

the valid warrant. On the other hand,

when a search warrant is invalid, Leon

can apply in a variety of situations

which leads to the invalidity. In Leon

itself, the warrant was invalid because

unsupported by probable cause. In

Massachusetts v. Sheppard, supra,

U.S. , the warrant was invalid because

of a completely inaccurate description of

the evidence to be seized. In United

States v. Henderson, supra, 746 F.2d 619,

the warrant was arguably invalid, if

United States v. Karo (1984) oa

[82 L.Ed. 530, 104 S.Ct. 3296]

(limiting the use of beeper surveillance;

cf. United States v. Knotts (1983) 460

U.S. 276) were to be given retroactive

effect.

In this case, if the warrantless

overflights of defendant's ranch were

unreasonable searches, the fruits of

15

those unconstitutional activities could

not support a valid search warrant, and

the issuing magistrate would have made a

mistake by issuing an invalid warrant.

(See People v. St. Amour, supra, 104 Cal.

App.3d at p. 891.) Under these circum-

stances, in applying Leon, a reviewing

court would need to determine whether

the officers who raided defendant's ranch

were behaving reasonably in relying on

such an invalid warrant. Leon formulates

the test of reasonableness as follows:

“whether a reasonably well-trained

officer would have known that the search

was illegal despite the magistrate's

authorization." (United States v. Leon,

supra, U.S. at p._, fn. 23 [82 L.Ed.

2d at p. 698, fn. 23, 104 S.Ct. at p.

3421, fn. 23).) As of July, 1982, when

the search in this case took place, a

reasonably well-trained officer might have

known the following.

16

Such an officer could have been

reasonably confident that a search warrant

based on information obtained by means of

an unreasonable search from an airplane

or helicopter was no good. (See People

v. St. Amour, supra, 104 Cal.App.3d at p.

891.) He or she would also have known

that in recent years appellate court

decisions had consistently upheld the

reasonableness of aerial surveillance

conducted from lawful altitudes. If the

officer were unusually knowledgeable, he

|! or she would know that the then most

f recent published appellate court discussion

of the constitutionality of aerial

surveillance in California, People v.

Joubert, supra, 118 Cal.App.3d 637, had

made the following pronouncements.

"({A)Jnyone who grows marijuana in the open

today does so at the risk of being spotted

by flying police officers." (Id., at p.

646.) "“{A]nyone who grows marijuana in

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17

an open field does not have an objectively

reasonable expectation of privacy insofar

as overflight at lawful altitudes." (Id.,

at p. 647.) The officer might have known

that a more recent case, Tuttle v. Superior

Court, supra, 120 Cal.App.3d 320, 327, had

disposed of the aerial surveillance issue

without discussion, in a single sentence,

saying, "The contention by petitioners that

the aerial surveillance violated

petitioners’ reasonable expectations of

privacy is without merit,” citing Joubert

and St. Amour. The officer might have

known that in United States v. DeBacker

(W.D.Mich. 1980) 493 F.Supp. 1078 the

federal district court upholds a seizure

of marijuana pursuant to search warrants

issued on the basis of information obtained

by state police officers flying in a plane

at an altitude of 50 feet above a farm.

The officer might have known that in

United States v. Allen (9th Cir. 1980)

18

675 F.2d 1373, cert. den. (1981) 454 U.S.

833 (70 L.Ed.2d 112, 102 S.Ct. 133], the

federal circuit court upholds an aerial

Surveillance from a Coast Guard

helicopter which led to interdiction

(without warrant) of an amphibious

operation to import marijuana on the

Oregon coast. The officer might have

known that the seizure condemned in People

v. Sneed, supra, 32 Cal.App.3d 535, was

not only without warrant, but resulted

from observations from a helicopter

hovering 20 to 25 feet above Sneed's

backyard. (Id., at pp. 540, 542.) In

short, a reasonably weli-trained officer

would be fully iaemehith ih in believing in

the validity of the search warrant issued

in this case, and the more knowledgeable

that officer was, the more justified his

or her belief would be.

In accord with Leon, the trial

court in this case committed no error in

19

refusing to suppress evidence, even if the

California or United States Supreme Court

were to announce a new rule compelling

the conclusion that the officers acted

in violation of the federal Constitution

in flying over defendant's ranch.

Presence of ABC Camera Crews

Defendant contends that the

presence of news crews at the time the

officers searched his ranch violated Penal

Code section 15302/ and compels suppression

of the evidence then seized. Defendant

cites no case law in support of this

contention.

The People make a multiphase,

“even if" argument, as follows. Section

1530 was not violated, the presence of

news cameras is nothing to complain about

5/ Penal Code section 1530 provides:

"A search warrant may in all cases be

served by any of the officers mentioned

in its directions, but by no other

person, except in aid of the officer on

his requiring it, he being present and

acting in its execution."

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because it benefited defendant, serving

to deter potential unlawful behavior by

the officers. Even if the violation

worked to defendant's detriment, rather

than his benefit, it would not rise to

constitutional stature. Even if the

violation did achieve constitutional

stature, it had no causal relationship

| with the seizures about which defendant

complains.

The first phase of the People's

multiphased argument is enough. Penal

Code section 1530 prohibited the news

crews from participating in the service

of the search warrant. Defendant concedes,

"No claim can be made here that ABC News

provided even the slightest bit of

assistance to the executing officers."

Thus, defendant's own concession

establishes the lack of merit to his

contention that the presence of the news

crews, in and of itself, constituted a

21

violation of statute.

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The judgment is affirmed.

Holmdahl, J.

I CONCUR:

Elkington, J.

22

People v. Berger

AO 55332

Concurring Opinion

Given the overriding circum-

stance that the constitutional validity

of aerial overflights is currently under

review in our state and federal high

courts (see, e.g., People v. Mayoff

(Crim. 23608, hg. granted March 22, 1984);

People v. Cook (Crim. 23651, hg. granted

April 19, 1984); People v. Agee (Crim.

23738, hg. granted May 24, 1984); People

v. Ciraolo (1984) 161 Cal.App.3d 1081,

cert. granted June 3, 1985, _—U.S.

[86 L.Ed.2d 691]), considerations of

judicial economy alone justify deferral

herein, as the parties expressly

acknowledged during argument. Pending

further authoritative enlightenment, it

would appear that the challenged search

meets constitutional muster under existing

controlling precedents. (See United

23

States v. Leon (1984) 468 U.S. [82

L.Ed.2d 677, 104 S.Ct. 3405], rehg. den.,

82 L.Ed.2d 942; In re Lance W. (1985) 37

Cal.3d 873, 890.)

Accordingly, I concur in the

result.

Racanelli, P. J.

FILED

Dec 23 1985

Court of Appeal - First Dist.

Ron D. Barrow, Clerk

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

24

SUPERIOR COURT OF CALIFORNIA

COUNTY OF MONTEREY

Date: November 15, 1983

Hon. Robert A. O'Farrell, Judge;

, Bailiff;

, Deputy Clerk;

, Reporter

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

SAUDJIE SHOSHANNA BERGER and

MARC LEE BERGER,

Defendants.

No. MCR 4878

Minute Order: ,

DECISION RE MOTION PURSUANT

TO SEC. 1538.5 PENAL CODE

Appearances: None

Motion to Suppress under

Section 1538.5 Penal Code is denied.

25

John Northcoat

Deputy District Attorney

1200 Aguajito Road

Monterey, CA 93940

Richard Draper, Esq.

544 Pacific Avenue

San Francisco, CA 94133

Frank R. Ubhaus, Esq.

2 North Second Street

#1300

San Jose, CA 95113

26

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

lst District, Division l

No. A026332

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

PEOPLE

Vv.

MARC LEE BERGER

Appellant's petition for review

DENIED.

Bird, C.J., Broussard, J. and

Reynoso, J., are of the opinion the

petition should be granted.

Bird

Chief Justice

27

Supreme Court

FILED

Mar 20 1986

Laurence P. Gill, Clerk