Petition for A Writ of Certiorari — Ricci v. California

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Tate of Authorities Cited

Caner 1

Aguilar d Texas, 878 U.S. 1OR (1984)... 18

Durham w United States, 403 F.2d 190 (8th Cir. Wes) 12. 18

Di ne v. United States 415 F.2d 99 (6th Cir. 1968) 18

Kate; United States, 389 U.S. 247 (. % 16, 17

Nolan w United States, 423 F.2d 1031 (%% Cir, 197)... 18

People v. Nelson, 171 C.A.24 356, 340 Pad THR (1959)... 18

_ Sehoenman v. United States, 317 F.2d 173 (D.C. Cir. 1963) 13

Sero v. United States, 287 U.S. 206 „ 13

Spinelli v. United States, 383 U.S. 420 (1969)............ 18

United States v. Covello, 410 F.2d 536 (24 Cir. 6 18

United States v. White, 405 F.2d S38 ee 16

Codes

Califernia Penal Code

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Section 387a(1) ......... 3 1. 4. 6

Rd. * ⏑˙ anne 4.5. 7

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t, e eatin 6. 7

Constitutions

United States Constitution

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Fourteenth Amendment t 48,17

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100 A.L.R. 2d 525, 534-42 ( %%ù „ ee, 13

Sram of CaLsrorntia,

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te the Court of Appent of the State of Callferaia,

First Appellate District

The petitioner Peter John Ricci respectfully prays

that a writ of c:rtiorari issue to review the judgment

of the Court of Appeal of the State of California for

the First Appellate District, affirming the judgment

of sentence and order granting probation of the Su-

perior Court of the State of California for the County

of San Mateo, entered after the petitioner had en-

tered a plea of guilty to willfully, unlawfully, and

feloniously engaging in bookmaking in violation of

section 337a, Subd. 1 of the California Penal Code.

OPINION BELOW

The opinion of the Court of Appeal of the State of

California for un First Appellate District, certified |

not to be published in official reports, ix sct forth as

Appendix “A” to this petition, =

ToRmDICTION

The judgment of the Court of Appeal of the State

of Catifornia for the First Appellate District was

entered on July 28, 1970. On September 1, 1970, peti-

‘ toner ed a Petition for Hearing in the Supreme

Court of the State of California. On September 24,

1970, the Supreme Court of the State of California

denied the petition, and this petition for a writ of

certiorari was filed within ninety (90) days of that

date. The jurisdiction of this Court is invoked under

28 U.S.C. §1257(3).

STATEMENT OF QUESTIONS PRESENTED

1. Is the information in an affidavit in support of

the application for a search warrant sufficiently cur-

rent to justify the issuance of a warrant when there

was no allegation of any evidence obtained less than

43 days prior to the application to support an infer-

ence that any instrumentalities or fruits of unlawful

gambling activity were lorated on the premises to be

searched, and.there was no allegation of any illegal

. .

e hy the owner of the premises that occurred

lens than 26 days prior to the application :

2. Can an ant in support of an application

“for a wrarch warrant refer to a taped telephone con:

Veraation for the purpose of vice Hoatification made

of the defendant, without his consent, when the tape

we used to authenticate other evidenre ?

3. Can ‘an affidavit in support of an application

for a search warrant refer to records of telephone

calls placed by an individual when the records were

Femoved from the Nef the Pacific Telephone and

Se Cae) ee ee eee

rant of other Court order ’ ,

4 Can a search warrant issue upon allegations of

mere innocent movement by the et. the posses

sion of two telephones in his residence, bald police

suspicion, and inadequate informants’ tip!

3. California Penal Code §1538.5

The full text of this section is set forth in

Appendix B'.

STATEMENT OF THE CASE

A. Proceedings Below and Presentation of Federal Questions.

After petitioner s motion to suppress evidence under

§1538.5 of the California Penal Code was denied by

the magistrate who issued the search warrant, and

after petitioner’s motion to set aside the information

under §995 of the California Penal Code on the

ground of the inadmissibility of the evidence was de-

nied by .the trial court, the petitioner entered a plea

of guilty to one count of bookmaking in violation of

§337a, Subd. 1 of the California Penal Code before

the Honorable Allison M. Rouse in the Superior

Court of the State of California for the County of

San Mateo..

On December 28, 1968, the petitioner was arrested

at his home at 1086 Skyline Drive, Daly City, Cali-

fornia, by officers of the Daly City Police Department

and was charged with bookmaking. (C.T. 25.)' On

March 7, 1969, the preliminary examination was held

in the Municipal Court for the Northern Juslieial

District of the County of San Mateo, State ef Cali-

fornia, before the Honorable Paul M. Hupf, at which

time defense counsel moved under §1538.5 of the Cali-

fornia Penal Code to suppress the evidence seized

pursuant to a search warrant at the time of the pe-

titioner’s arrest. The motion to suppress was denied

and the magistrate held the petitioner to answer on

the charges. (C.T. 5, 7, 24-25, 77.) At the preliminary

points sought to be reviewed by this Court.

On March 21, 1969, an information was filed. in the

Superior Court of the State of California for the

five counts of illegal gambling activity in violation of

various portions of California Penal Code §337a. On

April 3, 1969, the petitioner moved to set aside the

information under §995 of the California Penal Code.

(C.T. 80.) In his Memorandum in Support of Motion

to Set Aside Indictment [sic] under Penal Code 5008,

the petitioner objected to the use in the affidavit in

support of the application for the search warrant of

the fruits of the taped telephone conversation between

the. police officer and the petitioner (Question 2

herein). (C. T. 90.) On May 1, 1969, the motion was

denied by the Honorable Allison M. Rouse. (C.T. 94.)

3 Transeript on Appeal will be herein designated

as 0 0

9

On May 16, 1969, the petitioner filed a Petition for

Writ of Mandate and Writ of Prohibition in the

Court of Appeal for the State of California for the

1, 1968, the petition was denied. The petitioner peti-

tioned for a hearing to the Supreme Court of Cali-

fornia, and on August 27, 1969, the Supreme Court of

California denied a hearing.

On September 29, 1969, the petitioner moved to

withdraw his plea of not guilty and to substitute a

plea of guilty to count I of the information, charging

that from on or about January 1, 1968, through De-

cember 29, 1968, the petitioner did “willfully, unlaw-

fully and feloniously engage in bookmaking” in vio-

lation of Ma, Subd. I of the California Penal Code.

(C.T. 97.)

On November 6, 1969, the trial court ordered that

the petitioner be granted five years’ probation on the

condition that he serve six months in the county jail,

with four months’ county jail time suspended, on the

condition that the defendant pay a fine in the sum of

$2,500.00, plus the statutory penalty assessment. (C.T.

102-103.)

On November 13, 1969, the petitioner, through his

present counsel, filed his Notice of Appeal to the

Court of Appeal of the State of California for

the First Appellate District. (R.T. 110.) Under

$1538.5(m) of the California Penal Code an individ-

ual may appeal from a judgment of conviction hased

upon a plea of guilty if at some stage of the proceed-

— 7

ings prior t» the entry of the plea the individual has

moved to suppress the evidence.’

In his opening brief in the Court of Appeal, the

in the affidavit in support of the application for the

search warrant was not sufficiently current to justify

the issuance of the warrant. (Question 1 herein) (Ap-

pellant’s Opening Brief, pp. 24-29.) The Court of

Appeal rejected the petitioner’s contention without

extended discussion. (Appendix A“, p. iii.)

After obtaining leave of the Court of Appeal dur-

ing oral argument, petitioner filed in the form of a

letter a supplemental brief with the Court of Appeal,

attacking that portion of the affidavit which relied

upon the taped telephone conversation of the peti-

tioner for voice identification. (Question 2 herein.)

The Court of Appeal did not pass upon this federal

question in its opinion. *

In his opening brief in the Court of Appeal, peti-

tioner attacked that portion of the affidavit which

The full text of §1538.5(m) reads as follows:

; on

„ comin ainaees a ee

referred to the information obtained from the tele-

phone company on the ground that as to these rec-

ords the petitioner had a reasonable expectation of

privacy within the protection of the Fourth and

Fourteenth Amendments to the United States Consti-

tution. (Question 3 herein.) (Appellant's Opening

Brief, pp. 13-14.) The Court of Appeal did not ex-

pressly pass upon this federal question in its opinion.

The Court of Appeal concluded, however, that the

_ petitioner had waived the independent state ground

L

the trial court.

Upon application of the petitioner's counsel, the

Honorable Allison M. Rouse ordered that the portion

of the order of probation, requiring the defendant to

serve six months in the county jail with four months

heing suspended on the condition that the petitioner

pay a fine, he suspended for 90 days until February

17, 1970, at 5:00 p.m. pending petitioner’s appeal.

(R. T. 101.) The execution of that portion of the sen-

tence is still being suspended, pending this Court’s

ruling on the petition herein.

B. Allegations in the Affidavit in Support of the Application

for the Search Warrant.

On December 27, 1968, Captain Richard Sims of

the Daly City Police Department obtained a search

warrant for the search of the premises located at

1086 Skyline Drive, Daly City, California, and a 1967

Chevrolet convertible, California license VPZ 482.

(A. C. T. pp. 15-17.)*

The Augmented Clerk s Transeript on Appeal will be herein

designated as A. C. T.“

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| The search warrant was obtained upon the follow-

ing allegations :

In November of 1967, Captain Sims observed the

petitioner ‘leaving a Daly City cigar store with a

Daily Racing Form. (A.C.T. 4.)

On January 23, 1968, the petitioner was observed

leaving his house, driving over several] blocks in a

cirele, and returning home without stopping and fol-

lowing the same route upon leaving. (A.C.T. 5.)

On January 24, July 2, July 3, December 5, and

December 9, 1968, the petitioner was observed driving

to the Harding Park Golf Course in San Francisco,

where on all but the last occasion he was observed

entering only the building where a restaurant is lo-

cated. (A. C. T. 5-6.)

On July 2, 1968, the petitioner was seen driving to

Skyline Plaza, Daly City, a shopping center. On July

3, 1968, the petitioner was seen driving to the Fair-

mont Shopping Center, Pacifica. On December 4,

1968, the petitioner was observed driving to the Fair-

mont Shopping Center where he made at least two

telephone calls from a public telephone booth. On

December 5, 1968, the petitioner was observed driving

to a Shell Station at Westmore and Skyline Drive,

Daly City, where he made a telephone call from a

public telephone booth before returning home at 11:30

a.m. At 12:30 p.m. on December 5, the petitioner left

his home in his automobile. (A.C.T. 5-6.)

In December of 1967, Inspector Ralph Brown of

the San Francisco Police Department Intelligence

Detail advised Captain Sims that a Mrs. Charles

Teran had told Inspector Brown in 1965 that the

viously operated by Mrs. Teran’s husband, while Mrs.

Teran’s husband was in prison. (A.C.T. 4-5.)

On June 23, 1968, Inspector Daniel Nilan of the

Sims that the petitioner's name and telephone num-

ber had come up” in a recent bookmaking arrest in

San Francisco. (A.C.T. 7.) a!

On June 18, 1968, Inspector Nilan had seized cer-

tain tape recordings from the apartment of one Henry

St. Pierre in San Francisco. Mr. St. Pierre ulti-

mately pleaded guilty to bookmaking. These tapes

contained approximately 10 to 15 telephone conversa-

tions between Mr. St. Pierre and an individual known

as Pete“. During these calls, Pete“ gave Mr. St.

Pierre odds and obtained from Mr. St. Pierre infor-

mation about bets and pay-offs made by unknown

bettors. During one of the conversations, ‘ Pete”

complained to Mr. St. Pierre that he had been ‘‘past-

posted”—a term referring to accepting a bet after a

sporting event had heen commenced. (A.C.T. 7-8.)

On December 20, 1968, Sgt. Stables of the Daly City

Police Department called the petitioner at a telephone

number listed to the petitioner and a conversation

between these two was taped. After comparing the

voices on the tapes, Captain Sims concluded that the

same person was the speaker in both inetaness.

(A.C.T. 8-9.)

On November 6, 1968, the Daly City Police De-

partment received an anonymous dymo-tape giving

ll

the petitioner’s name, street of residence, and tele

phone number and alleging that the petitioner was a

„bum pay bookie,” who took bets on horse races and,

with another individual, pushed football cards in the

Bay Area. (A.C.T. 6-7.) On November 20, 1968, an-

other written communication was sent to the District

Attorney of San Mateo County from the same anony-

being a bookie. (A. C. T. Exhibit ‘‘A”.)

On December 1, 1968, another written communica-

tion was sent to the District Attorney for San Mateo

County, charging the petitioner with being a bookie.

(A. C. T. Exhibit B“.)

There were two telephones in the petitioner's house:

one listed to the petitioner and the other to a female

with the same surname. (A.C.T. 7.)

At some unknown date, police officers obtained rec- .

ords from the Pacific Telephone & Telegraph Com-

pany, indicating all of the toll calls made between

April 28, 1968, and November 14, 1968, from a tele-

obtained showing all toll calls between October 27,

1968 and November 3, 1968, from a telephone listed

to one Richard Kourmarian, an individual detained

for questioning by the San Franeiseo Police during

a bookmaking investigation. From these records, it

to Mr. Kourmarian and twenty-two to Kathleen

Alden, publishers in North Hollywood, California,

allegedly a sporting house which furnishes results of

all sporting events. The records of Mr. Kourmarian

showed that he had made five calls to the petitioner.

(AGT. 10.)

C. Evidence Seised.

When the Daly City ce

petitioner’s home at 1086 Skyline Drive, Daly City,

on December 28, 1968, they seized football tickets

(People’s Exhibit 1), a copy of the Weekend Sports

Journal, referring to college and professional football

bow! games (People’s Exhibit 2), certain notebooks

(People’s Exhibit 3), and papers with writing and

printing (People’s Exhibit 4). (C.T. 26-28.)

Sgt. James A. Mullen, the individual in charge of

the gambling detai! in the Bureau of Special Services

of the San Francisco Police Department, testified that

the various items seized at the petitioner’s premises

comprised gambling paraphernalia. (C. T. 59-67.)

lL WHBSTHER THE ALLEGATIONS IN THE AFFIDAVIT IN SUP-

PORT OF THE APPLICATION FOR A SEARCH WARRANT

WERE SUFFICIENTLY TIMELY TO JUSTIFY THE ISSUANCE

OF THE WARRANT 18 A FEDERAL QUESTION OF SUB-

STANCE NOT PREVIOUSLY DECIDED BY THIS COURT.

in testing the validity of search warrants, courts

have heen concerned with the currency of the allega-

tions in the. supporting affidavit that contraband or

the instrumentalities of illegal conduct are located in

the premises to be searched, because if the evidence

has been removed in the interim, an unnecessary in-

vasion of privacy may result. See e.g., Durham v.

United States, 403 F.2d 190 (9th Cir. 1968) ; Schoen-

man v. United States, 317 F.2d 173 (D.C. Cir. —-

In Sgro v. United States, 287 U.S. 206 (1982), this

Court ruled upon the timeliness of the allegations in

an affidavit in support of an application for a ‘search

warrant. That case, however, was based to some de-

gree upon the interpretation of the Act of June 15,

1917, Title XI, the statute governing the time within

which warrants must be served. Since Sgro, this

Court has not dealt with the issue of whether the

“‘staleness” of the evidence alleged in support of the

issuance of a warrant makes the search “‘unreason-

able” within the purview of the Fourth and Four-

state courts have passed upon the issue of timeliness,

see Annot., 100 A.L.R.2d 525, 534-42 (1985), little

effort has been made to articulate the standards un-

derlying the respective decisions, and the rationale of

the “rule-of-thumb” that an interval of 20 days is

acceptable, but thirty 30 days is too long is somewhat

obscure. See People v. Nelson, 171 C.A.2d 356, 358-60,

340 P.2d 718, 721 (1959).) Moreover, the cases do not

of illegal conduct by the suspect and allegations that

the fruits or instrumentalities of the illegal conduct

are located on the premises to be searched.

As the issue was — gt cet enment,

the petitioner con that the allegations in the

affidavit in support of the application for the search

warrant were too “stale” to support the issuance of

which an inference could be drawn either that unlaw-

searched or that the fruits or instrumentalities of

unlawful activity were located on the premises dated

back at least 43 days prior to the issuance of the

warrant.

In this case, although there was evidence as of Pe-

cember 1, 1969 (26 days prior to the application for

the warrant) from which the inference could be

drawn that the petitioner was engaged in bookmak-

ing aetivity—namely, a letter from an anonymous in-

former, there was nothing in that communication

that indicated that the illegal activity or evidence re-

lating thereto was located at the petitioner’s home.

(A.C.T. Exhibit B“.) The last information that ae-

tivity was conducted at the petitioner’s home came

from the telephone company's records which showed

that sometime on or about November 14, 1969 (43 days

prior to the application) the petitioner had made the

tivity. (A.C.T. 10.) Thus, it was unreasonable for the

magistrate to conclude that the allegations in the affi-

davit were sufficiently current to support the infer-

ence that the objects. sought were located in the

It is submitted that the critical factor in determin-

ing the staleness of allegations should be not the last

date of any illegal activity, but rather the last date of

any information giving rise to probable cause to be-

lieve either that illegal activity or the fruits thereof

were located on the premises to be searched. In this

regurd, the timeliness and the nature of the allega-

tions in support of a search warrant application differ

from those in support of an arrest warrant applica-

tion. In deciding whether to issue an arrest warrant,

the magistrate is concerned only with whether there

was probable cause to believe that the suspect com-

mitted the offense. In issuing a search warrant, how-

Wer, the magictrate must consider not merely whether

the suspect probably was guilty of illegal activity,

but whether evidence of that activity is loented on the

designated premises. a

Certainly, sinice the question — is pre-

sented in every application for a search warrant, this

ES eRe Seat a ae

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1. THE USE Iv THE AFFIDAVIT OF POGYIONS OF 4 TAPED

of alleged telephone conversations between one Henry

St. Pierre and the /petitioner, seized at Mr. St.

2 These tapes indiented that the

Pete“ with with whom Mr. St. Pierre conversed was en-

gaged in illegal bookmaking activity. (A. C. T. 7-8.) .

Although the police were not responsible for record-

ing the St. Pierre tapes, the “Pete” in the tapes could

not have heen identified as being the petitioner with-

out the use of a taped telephone conversation betweeti

the petitioner and Sgt. Stables of the Daly City Po-

lice Department made on December 20, 1968, several

days before the petitioner’s arrest. Captain Sims,

who signed the affidavit in support of the application

for the search warrant, alleged that after listening

to the St. Pierre tapes and the telephone conversa-

tion between Sgt. Stables’ and petitioner, Captain

Sims concluded that the petitioner and the Pete” in

the tapes were one and the same. (A. C. T. 8-9.)

In Katz v. United States, 389 U.S, 347 (1967), this

Court outlawed the use of evidence obtained by wire-

tapping. It is submitted that although this case dif-

fers factually from Katz, the doctrine established in

Katz—namely, that whenever an individual is in a

place in which he has a reasonable expectation of

privacy against government intrusion, the use of

electronic equipment to obtain evidence against him

in the absence of a Court order is impermissible—

should be applicable to the petitiener. The mere fact

that the taped telephone conversation was used merely

for voice identification does not eliminate the fact

that the evidence was obtained through the use of

electronic eavesdropping. ©

The issue presented here is similar to that in United

States v. White, 405 F.2d 838 (1969), cert. granted,

394 U.S. 957 (1969), now pending before this Court,

involving the analogous question of the admissibility

of evidence obtained by use of an electronic trans-

mittor planted on a government informer.

This Court should grant certiorari in this case to

clarify whether Katz is to be given a broad applica-

J

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tion, preventing the use of all evidence obtained

through electronic eavesdropping without a Court

order, or whether Katz is to be limited to the use of

the substance of the overheard conversation or to the

overhearing of telephone conversations without the

consent of either of the parties thereto. :

Il. WHETHER POLICE CAN OBTAIN RECORDS OF TELEPHONE

CALLS PROM THE FILES OF THE TELEPHONE COMPANY

WITHOUT A COURT ORDER IS A PEDBRAL QUESTION OF

SUBSTANCE THAT PREVIOUSLY HAS NOT BEEN DBOIDED

BY THIS COURT. |

The affidavit in support of the application for the

search warrant relied in great part upon certain ree-

ords obtained by the police from the Pacific Tele-

phone and Telegraph Company without a warrant or

other court order which indicated that the petitioner

had numerous telephone conversations with a known

gambler and with a sporting information house in

Los Angeles, (A. C. T. 10-11.)

As was indicated above, Katz v. United States, 389

U.S. 347 (1967), established the doctrine that the

Fourth and Fourteenth Amendments protect an in-

dividual’s reasonable -expectation of privacy. Cer- |

tainly, an individual would have no greater desirg to

expose to the prying eyes of the police the names of

the individuals with whom he carries on telephone

conversations than he might have to expose the con-

tents of the conversations themselves, This issue is

another one which should he decided by this Court in

order to determine the extent of the application of

Kate.

The use of telephone company records by police is

sufficiently widespread to have been attacked unsuc-

cessfully in several appellate cases. See e.g., Nolan v.

United States, 423 F.2d 1031 (10th Cir. 1970); Di

Piasea v. United States, 415 F.2d 99 (6th Cir. 1969),

petition for cert. filed, 38 U. S. L. W. 3342 (U.S. Dee.

17, 1969) ; United States v. Covello, 410 F.2d 536 (2d

Cir. 1969), cert. denied 397 U.S. 879 (1969), rehearing

denied 397 U.S, 929 (1970). Because of the apparent

prevalence of this police conduct, this Court should

pass upon the issue presented.

It was submitted above that the magistrate should

not have considered the allegations in the affidavit

derived by use of the taped telephone conversation

and from the records removed from the files of the

Pacific Telephone and Telegraph Company. In the

ubsence of these allegations, the remaining allega-

tions in the affidavit were insufficient to satisfy the

two-pronged test set forth in Spinelli v. United States,

393 U.S. 410 (1969) and Aguilar „. Teras, 378 US.

108 (1964).

Capsulized, these allegations consisted of police sur-

veillance of the petitioner on one occasion as he

bought a racing form in a cigar store and on several

other occasions as he drove from his home to a mu-

nicipal golf course and shopping centers and placed

telephone calls from public telephone booths ; two tele-

Phone listings at the petitioner's home, one in the

name of a female; the bald and unilluminating” as-

sertion that the petitioner’s name and telephone num-

ber had come up” during a recent j

arrest; the unsupported statement of a bookmaker’s

wife, made three years before the arrest; and the

statements of two anonymous informers bereft of un-

derlying factual information establishing the personal

knowledge of the informants, or their reliability.

(AC. T. 4-9, Exhibits A“ and B.) |

CONCLUSION :

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeal of the State af California for the First

Appellate District |

Dated, San Francisco, California,

Oetober 21, 1970.

Respectfully submitted,

EPHRIAM MARGOLIN,

Hearsert W. Yanowiz,

Attorneys for Petitioner.

(Appendices ‘‘A’’ and ‘‘B’’ Follow)

88

Appendix: “A”

Not to Be Published in Official Reports

In the Court of Appeal

State of California

First Appellate District

Drvision THREE

1 Criminal No. 8450

People of the State of California, |

Plaintiff and Respondent,

vs.

Peter John Ricci,

Defendant and Appellant. |

Defendant-appellant claims that the recordings of

telephone conversations with St. Pierre were not ad-

missible as evidence (Pen. Code §632, subd. d) and

thus could not be considered by the magistrate in de-

termining whether to issue the search warrant under

which bookmaking records and paraphernalia were

found in appellant’s home. We assume, without de-

ciding, that the ex parte application for the warrant

is a “judicial * * * proceeding” within the meaning

of subdivision (d).

It seems apparent that no ‘‘eavesdropping” was

done by police. Rather, St. Pierre himself made the

recordings. Their volume and frequency would seem

to indicate a fixed policy by him, in his business as

a ‘‘layoff bookie,” to make such recordings as a means

of indisputable accounting with his several customers.

Thus it may reasonably be inferred that his custom-

ers knew of, and consented to, his recording of their

conversations. While the parties doubtless desired to

avoid public knowledge of the conversations, it could

well be argued that they did ‘‘reasonably expect that

the communication may be * * * recorded” (Pen,

Code $632, subd. c), thus removing the prohibition of

section 632. No impropriety in police seizure of St.

Pierre’s recordings is even remotely suggested. Thus

it could well follow that section 632 does not bar their

Lise.

We need not reach these problems or the apparent

contradiction in the 1967 statute (see third paragraph

of Pen, Code §630), however, Even if it be assumed

that the St. Pierre recordings and that of appellant’s

voice made by police could not be looked to by the

magistrate, we feel that the remaining allegations of

the affidavit adequately support issuance of the search

warrant.

The telephone company records showed appellant’s

frequent ealls to numbers known, through San Fran-

cisco police, to be those of bookmakers. No objection

to use of these records was made at the §1538.5 pro-

ceeding in the trial court, nor was the issue raised

in the petition to another division of this court for

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8

prohibition (1 Civil No. 26869). Thus the issue was

waived, and need not be considered on this appeal

(see People v. Groves, 71 A. C. 1239, 1241; People v.

Santiago, 71 A.C. 18, 23). These records, plus the

factual allegations of the affidavit and the expert's

opinion stated therein, amply support-issuance of the

warrant. The sum of these allegations readily dis-

tinguishes this affidavit from that held insufficient in

a case principally relied upon by appellant (Spinelli

v. United States, 393 U. S. 410).

The affidavit for the warrant states the facts of a

long- continued investigation. While some of the in-

formation may be ‘‘stale”, the culminating discoveries

which completed the case for the warrant were cur-

rent within the rule as we understand it. The slight

delay thereafter in seeking the warrant was insuffi-

cient to bar issuance.

Judgment affirmed.

Certified for Non publication.

Draper, P. J.

We concur:

Brown (H. C.), J.

Caldecott, J.

Filed July 28, 1970,

Lawrence R. Elkington, Clerk.

Appendix “B”

§ 1538.5. Motion to return property or suppress

id |

(a) Grounds. A defendant may move for the re-

turn of property or to suppress as evidence any tan-

gible or intangible thing obtained as a result of a

search or seizure on the ground that:

(1) The search or seizure without a warrant was

unreasonable ; or

(2) The search or seizure with a warrant was un-

reasonable 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 fed-

eral or state constitutional standards; or (v) ther

was any other violation of federal or state constitu-

tional standards.

(b) First hearing. When consistent with the pro-

cedures set forth in this section and subject to the

provisions of Section 170 through 170.6 of the Code

of Civil Procedure, the motion should first be heard

hy the magistrate who issued the search warrant if

there is a warrant.

(e) Evidence. Whenever a search or seizure motion

is made in the municipal, justice or superior court as

provided in this section, the judge or magistrate shall

receive evidence on any issue of fact necessary to de-

termine the motion.

v

(d) Effect of granting motion. If a search or

seizure motion is granted pursuant to the proceedings

authorized by this section, the property or evidence

shall not be admissible against the movant at any trial

or other hearing unless further proceedings author-

ized by this section or Section 1238 or Section 1466

are utilized by the people. 3

(e) Return of property. If a search or seizure mo-

tion is granted at a trial, the property shall be re-

turned upon order of the court unless it is otherwise

subject to lawful detention. If the motion is granted

at a special hearing, the property shall be returned

upon order of the court only if, after the conclusion

of any further proceedings authorized by this section

or Section 1238 or Section 1466, the property is not

subject to lawful detention or if the time for initiat-

ing such proceedings has expired, whichever occurs

last. If the motion is granted at a preliminary hear-

ing, the property shall be returned upon order of

court after 10 days unless the property is otherwise

subject to lawful detention or unless, within that time,

further proceedings authorized by this section or See-

tion 1238 are utilized; if they are utilized, the prop-

erty shall be returned only if, after the conclusion of

such proceedings, the property is no longer subject to

lawful detention.

(f) Felony; motion at preliminary hearing. If the

property or evidence relates to a felony offense initi-

ated by a complaint, the motion may be made in the

municipal or justice court at the preliminary hearing.

vi

(g) Misdemeanor; pre-trial motion at special hear-

‘ing. If the property or evidence relates to a misde-

meanor complaint, the motion shall be made in the

municipdl 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 misdemeanor filed together with

a felony, the procedure provided for a felony in this

section and Sections 1238 and 1539 shall be applicable.

(h) Motion at trial. If, prior to the trial of a fel-

ony 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. Further-

mm mf um

motion during the course of the trial.

(i) “Felony; renewal of motion at special hearing; -

review, If the property or evidence obtained relates

to a felony offense initiated by complaint and the de-

fendant was held to answer at the preliminary. hear-

ing, or if the property or evidence relates to a felony

offense initiated by indictment, the defendant shall

have the right to renew 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 por-

tion 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

| | vii

hearing. After the special hearing is held in the su-

perior court, any review thereafter desired by the de-

fendant prior to trial shall be by means of an extraor- ©

dinary writ of mandate or prohibition filed within 30

days after the denial of his motion at the special

hearing.

(j) Relitigation of question after grant of motion;

new evidence, review. If the property or evidence re-

lates to a felony offense initiated by complaint and the

defendrat’s motion for the return of the property or

suppression of the evidence 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 indietment after the preliminary

hearing, and the ruling at the prior hearing shall not

he binding in any subsequent proceeding. If the prop-

erty 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 pre-

liminary 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 preliminary hearing was held and

upon the filing of an information, the people within 10

days after the preliminary hearing request in the

superior court a special hearing, in which ease 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

„ r

vill

ing 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 re-

lating to the motion and not presented at the special

hearing, shall have the right to show ‘good cause at the

trial why such evidence was not presented at the

specia] 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 (o) of this

section, 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 made

a motion for the return of property or the suppression

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 relating to

that motion to the superior court of the county in

which such inferior court is located, in accordance

with the California Rules of Court provisions govern-

ing appeals from municipal and justice courts in

criminal cases, If the people prosecute review by ap-

peal or writ to decision, or any review thereof, in a

felony or misdemeanor case, it shall be binding upon

them,

(k) Release of defendant pending resumption of

proceedings in trial court. If the defendant’s motion

to return n property or suppress evidence is granted

and the case is dismissed pursuant to Section 1385, or

the people appeal in a misdemeanor case pursuant to

subdivision (j) or the people file a petition for writ

ix

of mandate or prohibition pursuant to subdivision (o)

or a notice of intention to file such petition, the de-

fendant shall be released if he is in custody and not

returned to custody unless the proceedings are re-

sumed in the trial court and he is lawfully ordered by

the court to be returned to custody,

(1) Stay; time for trial; dismissal; continuance ;

bail or release, The trial of a criminal case shall be

stayed to a specified date pending the termination in the

appellate courts of the State of California of the pro-

ceedings 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 proceed-

ings, the defendant 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 appellate review pursuant to subdivision

(o) of this section, 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

subdivision shall prohibit a court, at the same time as

it rules upon the search and seizure motion, from dis-

missing a case pursuant to Section 1385 when such

dismigsal is upon the court’s own motion and is based

upon an order at the special hearing granting defen-

dant’s motion to return property or suppress evidence,

In a misdemeanor case, the defendant shall be entitled

to a continuance of up to 30 days if he intends to file

a motion to return property or suppress evidence and

— —— — — —¾ SE er ae.

2

acer ice

Commer

99

needs this time to prepare for the special hearing on

the motion. In case of an appeal by the defendant in

n 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

he released on his own recognizance pursuant to Sec-

tion 1318.4.

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

after conviction. 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

vr seizure where the person making the motion for

the return of property or the suppression of evidence

in u 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 of

the validty of a search or seizure on appeal from a

conviction in a criminal case nothwithstanding the

fact that such judgment of conviction is predicated

upon a plea of guilty. Such review on appeal may be

obtained by the defendant 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,

(n) Motions on other grounds; existing law and

procedure, Nothing contained in this section shall pro-

hibit a person from making a motion, otherwise per-

mitted 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

xi

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 conduct-

ing the search or seizure; (iii) the law relating to the

burden of proof regarding the search or seizure; (iv)

the law relating io the reasonableness of a search or

seizure regardless of any warrant which may have

been utilized; cr (v) the procedure and law relating

to a motion made purxuai to Section 995 or the pro-

cedures which may be initiated after the granting or

denial of such a motion.

(0) People’s petition for mandate or prohibition:

notice of intention, Within 30 days after a defendant’s

motion is granted at a special hearing in the superior

court, the people may file a petition for writ of man-

date 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 mo-

tion at a special hearing in the superior court, the

people, if they have not filed such a petition and wish

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 hearing, which-

ever occurs last, a notice of intention to file such a

petition and shall serve a copy of the notice upon the

defendant,