Petition for Writ of Certiorari — Newton v. California

OcToBER TERM, 1972

No. 7Q= 1412

Huey P. Newton and Rosert L. Bay,

Petitioners,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNTA,

Respondent.

eM

PETITION FOR A WRIT OF CERTIORARI

to the Superior Court of the State of California,

Appellate Department, Alameda County

SOOO

Garry, Drevrvs, McTERNAN & BROTSKY,

CHARLES R. GARRY,

341 Market Street,

San Francisco, California 94105,

Telephone: (415) 392-1320,

Counsel for Petitioners.

ee

a hk

em:

;

es BEAL 3 wr. 2 SE REL EE ARR OG I AORN

&

i

Subject Index

Page

ee Ee dns cussed te seeeecdnesed ChGenee 1

i edebnce noe oth +e ooed an Rae eaesneneeneas 2

Question presented ...... 0.66. e cece eee eee eee ete e es 4

Constitutional provisions involved .............++00e+e0+: a

Geetemem el Ghd GBD... . coco ccccssrenvececseesceeesess 5

ATQUMEN 2.0... cece eee cece eee e rere eneeees eepeeneas 6

I. The warrantless search of the black vinyl briefease

vioiated the Fourth and Fourteenth Amendments.... 6

Il. This case does not fall into any of the exceptions to

the requirement of a search warrant ........--.+---- 7

A. The gun was not in “plain view” ...........--. 7

B. There was no probable cause to search defend-

ants’ automobile or the briefease ...........-++- 9

C. There were no circumstances justifying a search

Ee Og on canned ak reckeobesetesexet 12

III. The warrantless search of the briefease was invalid

because it was not impracticable to obtain a search

SEE ELLE PETE EE PET POT, Ce LETS 14

Cem ..nocccccerescvesescncsssesceseeetenssecserss 15

ee

Table of Authorities Cited

Cases Pages

Agnello v. U.S. (1925) 269 U.S. 20 ...........eccccccece. 9

Carroll v. United States (1924) 267 U.S. 182 ............ 9

Chambers v. Maroney (1970) 399 U.S. 42 .............. 9, 10, 14

Chapman v. U.S., 365 U.S. 610 (1960) ...............--. 9,11

Chimel y. California (1969) 395 U.S. 752 ............. 12, 13,15

Coolidge v. New Hampshire (1971) 403 U.S. 443 ... 4, 8, 9, 11,14

Royane W. Tate, SUR EE, SG no vo vcvinsixcasvevaceesoacnce 9, 10

Grundstrom v. Beto (D.C. Tex. 1967) 273 F.Supp. 912 .... 12

In re Sterling (1965) 63 C.2d 486 ..............00cccece 3

Johnson v. U.S., 333 U.S. 10 | GRRE aan Nein Ran ees ee

domes v. USB. (1958) 357 U.S. 498 ..... ccc ccc cccccccucn 7

a ees ee ek Sennen es 7, 13, 14

Ker vy. State of California (1963) 374 U.S. 23 ............ 7

Mapp v. Ohio (1961) 367 U.S, 643 ................cccece 5

MeDonald v. U.S. (1948) 335 U.S. 451 .................- 7,11

Mozetti v. Superior Court (1971) 4 C.3d 699 ............ 13

Peo. v. Marsh (1967) 281 N.Y.S.2d 789 ................. 12

Peo. v. Marshall (1968) 69 C.2d 51 ........... cc ccc cc ceee 8

Peo. v. Superior Court (1972) 7 C.3d 186 ............... 12

Preston v. United States (1964) 376 U.S. 364 ............ 10

Schmerber v. California, 384 U.S. 757 (1965) ............ 11

Sibron v. New York, 392 U.S. 40 (1968) ................ 11

"weewy v. Gite CHUUB) Be TE. 2 nn cc vvicccccccuwcscuces 13

Trupiano v. U.S. (1947) 334 U.S. GOO .... ccc ccc cccne 8, 14

United States v. Di Be, 392 UB. SS... . wc ccc cc uccce 10

United States v. Jeffers (1951) 342 U.S. 48 ...0..0.00.0.. 7,11

United States v. Rabinowitz (1949) 339 U.S. 56 2.0.00... 14,15

TABLE OF AUTHORITIES CITED lii

Pages

White v. Superior Court (1925) 72 C. 711 ...........0.. 3

Whittaker v. Superior Court of Shasta County (1968) 68

ys RIC ere err eer eee er ee rere 3

Zap v. US., 328 U.S. 624 (1945) 22... eee eee eee eee eee 11

Codes

Penal Code:

iC os cae ea whe eee ee ae ees habeus ees 5

EE ers ey er err 5

rr ances cease Neus akeenhen ree

eS err rrr err Terre re 3, 4

emi agey PR on oa worsen wrareloaiaceh ee ee Renee ae eS 6

ESS GEESE eps pares reine ge Spr ere hee ee 6

Constitutions

United States Constitution :

ee Do. ices ead b Reese ses 4,5, 6, 7, 14,15

a ee nen ieee are aera 4,5,6

Fourteenth Amendment, See. 1 ........... eee ee eeees 4

Rules

Rules of Court:

S| ie Prrrrrrrr yr eroer rrr eT rte Tr ror or 3

oe ee Gee adeeb es eneeae beesekee sl enacs 3

Statutes

28 ULS.C., Section 1247(3) ....... eee ee eee rene cece eee 2

In the Supreme Court

OF THE

Ruited States

OcToBER TERM, 1972

No.

Huey P. NEWTON and Ropert L. Bay,

Petitioners,

VS.

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Superior Court of the State of California,

Appellate Department, Alameda County

Petitioners Huey P. Newton and Robert L. Bay

respectfully pray that a writ of certiorari issue to re-

view the judgment of the Superior Court of the State

of California in and for the County of Alameda, Ap-

pellate Department, entered on January 24, 1973.

DECISIONS BELOW

The judgment of the Appellate Department af-

firmed an order dated September 5, 1972 of the

Municipal Court, Criminal Division, for the Oakland-

2

Piedmont Judicial District, County of Alameda, deny-

ing petitioners’ Motion to Suppress Evidence pur-

suant to California Penal Code §1538.5. No written

opinion was rendered by either court. The Municipal

Court Order appears in the Appendix hereto as “Ex-

hibit A”. The judgment of the Superior Court,

Appellate Department, appears in the Appendix as

“Exhibit B’. Petitioners filed a petition asking the

Superior Court to certify its judgment on appeal to

the California Court of Appeal for review. That

petition was denied February 9, 1973. The denial

appears in the Appendix as ‘Exhibit C”.

JURISDICTION

This court’s jurisdiction is invoked under 28 U.S.C.

§1247(3):

“Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

as follows:

ee“

**(3) By writ of certiorari, where the validity of

a treaty or statute of the United States is drawn

in question or where the validity of a State stat-

ute is drawn in question on the ground of. its

being repugnant to the Constitution, treaties or

laws of the United States, or wher e any title,

_ privilege or immunity is specially set up

r claimed under the Constitution, treaties or

aakies of, or commission held or authority exer-

cised under, the United States.”

3

The judgment of the Superior Court, Appellate

Department, was entered on January 24, 1973. The

Appellate Department denied certification to the

Court of Appeal on February 9, 1973. This decision

was made by the highest court in California in which

a decision could be had on a Motion to Suppress

Evidence in the trial court, pursuant to California

Rules of Court 62(a) and 107 and California Penal

Code §1538.5(j). (Rules 62(a) and 107 appear in the

Appendix hereto as ‘“‘Exhibit D”; the pertinent part

of the text of California Penal Code §1538.5 appears

in the Appendix as ‘* Exhibit E”.)

‘No further remedy by way of appeal is avail-

able after decision of the superior court or appel-

late department (whether or not a trial de novo

is had) unless, in accordance with rules promul-

eated by the Judicial Council, the Court of Ap-

peal orders the case transferred to itself upon

certification by the superior court, or determina-

tion by the Court of Appeal itself, that such

transfer ‘appears necessary to secure uniformity

of decision or to settle important questions of

law.’ (Code of Civ. Proc. S98st: Pen. Code,

§1471; People v. Allenthorp, supra, 64 Cal.2d

679, 682; see also Cal. Rules of Court, rules 62

and 63.)” Whittaker v. Superioy Court of Shasta

County (1968) 68 C.2d 357. \

When the appellate department of the Superior

Court affirms the judgment of the municipal court

without publishing an opinion or certifying the case

to the Court of Appeal, review by the State Supreme

Court is not available. White v. Superior Court

(1925) 72 C. 71: ; In re Sterling (1965) 63 C.2d 486.

1

California Penal Code §1538.5(j) specifically pro-

vides for an appeal of a denial of a motion to sup-

press evidence relating to a misdemeanor complaint

by a municipal court to the superior court of the same

county, which appeal shall be binding on appellant,

QUESTION PRESENTED

Does the warrantless search of the contents of a

briefcase made at the time of an arrest pursuant to

an arrest warrant for an alleged misdemeanor, in the

absence of exigent circumstances, violate the Fourth

and Fourteenth Amendments of the United States

Constitution ?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment Four:

“The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable 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.”

United States Constitution, Amendment Fourteen,

Section 1:

**All persons born or naturalized in the United

States, and subject to the jurisdiction 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 priv-

ileges or immunities of citizens of the United

States; nor shall any State deprive any person

i)

of life, liberty, or property, without due process

of law; nor deny to any person within its juris-

diction the equal protection of the laws.”

The Fourth Amendment is made applicable to the

states by the Fourteenth (Mapp v. Ohio (1961) 367

U.S. 643).

STATEMENT OF THE CASE

On April 27, 1972 at 4:00 p.m., Robert L. Bay and

Huey P. Newton were arrested in the area of defend-

ant Newton’s residence at 1200 Lakeshore Avenue,

Oakland, California, while riding in an automobile,

pursuant to misdemeanor arrest warrants charging

them with violations of California Penal Code $542

(battery) and §417 (brandishing a firearm). Bay was

also charged with carrying a concealed weapon on

his person.

The alleged violations occurred on April 16, 1972,

five days before a report was made to the police,

eleven days before the arrest warrants were issued

and executed.

When the vehicle was stopped, Bay occupied the

driver’s seat and Newton the right rear seat. Arrest-

ing Officer Farkas approached Bay and ordered both

Bay and Newton to get out of the car, which they

promptly did. Between the time the officer approached

Bay and the time Bay got out of the car his hands

remained on the steering wheel. Neither Bay nor

Newton made any furtive or suspicious movements.

While removing Bay from the car, Officer Farkas

testified that he saw a black vinyl case on the floor

6

of the car, protruding from the driver’s seat, and

that after both Bay and Newton had gotten out of the

car and were under the control of six other police

officers, he removed the case and searched it without

a search warrant. (Reporter’s Transcript, Hearing

on California Penal Code §1538.5 Motion, pp. 8, 11.)

Inside the case, the officer allegedly found a loaded

9mm. handgun. As a result of the search of the black

vinyl case, Bay and Newton were charged with mis-

demeanor violations of California Penal Code §12025

(carrying a concealed weapon in a vehicle) and

§12031 (carrying a loaded firearm).

On the basis of these facts petitioners filed a Mo-

tion to Suppress Evidence pursuant to California

Penal Code §1538.5 with the Municipal Court for the

Oakland-Piedmont Judicial District, Alameda County.

This motion charged that the search and seizure were

made in violation of the Fourth and Fourteenth

Amendments to the United States Constitution.

ARGUMENT

I THE WARRANTLESS SEARCH OF THE BLACK VINYL

BRIEFCASE VIOLATED THE FOURTH AND FOURTEENTH

AMENDMENTS.

A search not made pursuant to the authority of a

search warrant is presumptively invalid. The courts

have long recognized that the protections provided

by the Fourth Amendment comprise one of the key-

stones of a democratic society:

‘‘Implicit in the Fourth Amendment’s protection

from unreasonable searches and seizures is its

7

recognition of individual freedom. That safe-

guard has been declared to be ‘as of the very

essence of constitutional liberty’, the guaranty of

which ‘is as important and as imperative as are

the guarantees of the other fundamental rights

of the individual citizen’ (citation). . . . ‘The

Amendment is to be liberally construed and all

owe the duty of vigilance for its effective en-

forcement lest there shall be impairment of the

rights for the protection of which it was adopted’

(citation).” Ker v. State of California (1963)

374 U.S. 23.

The burden of justifying a warrantless search falls

upon the prosecution. Coolidge v. New Hampshire

(1971) 403 U.S. 443, 455; U.S. v. Jeffers (1951) 342

U.S. 48, 51.

The general rule that warrantless searches and

seizures are per se unreasonable under the Fourth

Amendment is subject only to a few exceptions. Katz

v. U.S. (1967) 389 U.S. 347, 357. “The exceptions

are zealously and carefully drawn,” Jones v. U.S.

(1959) 357 U.S. 493, and there must be ‘‘a showing

by those who seek exception . . . that the exigencies

of the situation made that course imperative.” Mc-

Donald v. U.S. (1948) 335 U.S. 451, 496.

Il. THIS CASE DOES NOT FALL INTO ANY OF THE EXCEP-

TIONS TO THE REQUIREMENT OF A SEARCH WARRANT.

A. The Gun Was Not In “Plain View”.

One of the exceptions to the requirement of a war-

rant to search is the ‘plain view” doctrine. The term

ee |

=

‘in plain view” means open and visible to the naked

eye. The plain view of a merely suspicious looking

or unusual object which itself is not contraband does

not justify its seizure without a warrant. In Pco. v,

Marshall (1968) 69 Cal.2d 51, 58-59, the California

Supreme Court held that the police could not search

a closed paper bag visible on the floor of defendant's

closet because the contraband itself was not in plain

view:

“In the present case the brown paper hag itself

was not contraband. Only by prying into its hid-

den interior (citation) could the officer be sure

that he was seizing contraband and nothing more.

The fact that the container was only a brown

paper bag instead of a packing box, purse, hand-

bag, briefcase . . . is immaterial. It is inherently

impossible for the contents of a closed opaque

container to be in plain view regardless of the

size of the containet or the material it is made

of. A search of the container is necessary to dis-

close its contents. A search demands a warrant.”

8

The *‘plain view” doctrine has no application to this

case.

Furthermore, even if applicable, ‘‘plain view alone

is never enough to justify the warrantless seizure of

evidence.” Coolidge ve. New Hampshire (1971) 403

U.S. 443, 408; Johnson ve UWS. 333 U.S. 10; Tru piano

vr. US. (1947) 334 U.S. 699. In each case, the search

must also be justified by a warrant or by an exception

such as hot pursuit. Coolidge, supra.

pee Ee ee ee ee

9

B. There Was No Probable Cause To Search Defendants’ Auto-

mobile Or The Briefcase.

“Only in exigent circumstances will the judgment

of the police as to probable cause serve as a sufficient

authorization for a search.” Chambers v. Maroney

(1970) 399 U.S. 42, 51. Probable cause alone is never

enough to justify a warrantless search. Chapman v.

U.S., infra, p. 613; Agnello v. U.S. (1925) 269 US.

20, 33. In certain cireumstances automobiles involved

in felony violations may be searched without a war-

rant on the rationale that the evidence may disappear

before a search warrant could be obtained because

of the mobile nature of automobiles. The Supreme

Court has made it clear, however, that the ‘‘auto

rule” does not countenance the flouting of constitu-

tional protections: ‘‘The word ‘automobile’ is not a

talisman in whose presence the Fourth Amendment

fades away and disappears.” Coolidge v. New Hamp-

shire (1971) 403 U.S. 443, 461. The cases tolerating

warrantless auto searches have ‘‘always insisted that

the officers conducting the search have ‘reasonable or

probable cause’ to believe that they will find the in-

strumentality of a crime or evidence pertaining to a

crime before they begin their warrantless search.”

Dyke v. Taylor, 391 U.S. 216, 221. Thus, the essential

threshold test of the legality of an auto search is the

presence or absence of probable cause that the auto-

mobile searched contains contraband. Carroll v.

United States (1924) 267 U.S. 132, 155. In Carroll,

and other prohibition liquor cases,

“Tajn automobile . . . was an almost indispen-

sable instrumentality in large-scale violation of

10

the National Prohibition Act, and the car itself

therefore was treated somewhat as an offender

and became contraband itself.” United States v,

Di Re, 332 U.S. 581, 587.

In Chambers v. Maroney (1970) 399 U.S. 42, prob-

able cause was supplied by an eyewitness report of

an armed robbery which ‘‘furnished detailed descrip-

tions of the articles stolen, the garb and weapons of

the robbers, and the appearance of the getaway car;

and shortly thereafter, the defendants were arrested

in a vehicle precisely matching that description.”

In cases like the one at hand, where auto searches

were conducted without probable cause, the searches

have been held unconstitutional. In Preston v. United

States (1964) 376 U.S. 364, three men were arrested

in an auto for vagrancy. A delayed search of the auto

was invalidated. A later discussion of the case by the

Supreme Court held that, since the arrest was for

vagrancy, “it was apparent that the officer had no

cause to believe the evidence of a crime was concealed

in the auto.” Chambers, supra at 47. In Dyke, supra,

a general description of an automobile from which

shots had been allegedly fired did not give officers

probable cause to search a ‘‘suspicious car” which

raced away when they began to follow it. The Court

held that the evidence failed to show that the officers

‘*had reasonable or probable cause to believe that

evidence would be found in petitioner’s car.” (p. 221).

Where officers are not responding to an emergency

there must be compelling reasons and exceptional eir-

cumstances to justify a search in the absence of a

wall » 7 ee ie |

11

search warrant. McDonald v. U.S., supra, pp. 454-

455; Coolidge v. New Hampshire, supra, p. 461.

Warrantless searches are justified where there is

eonsent, Zap v. U.S., 328 U.S. 624 (1945) ; or probable

eause and an emergency, U.S. v. Jeffers, 342 U.S. 52

(1951) ; or hot pursuit of a fleeing felon, Johnson v.

U.S., 333 U.S. 10 (1947); or goods in the process

of imminent destruction, Schmerber v. California, 384

U.S. 757 (1965); or immediate disappearance, Chap-

man v. U.S., 365 U.S. 610 (1960) ; or furtive gestures

of the occupants of an automobile, Sibron v. New

York, 392 U.S. 40 (1968).

However, none of the circumstances justifying

probable cause to search an automobile without a

warrant existed in the present case. Petitioners were

arrested on a misdemeanor warrant based on activity

which allegedly occurred eleven days prior to its

issuance and execution. The fact that the arrest oc-

curred while petitioners were in the vehicle is en-

tirely fortuitous. They were arrested as they were

driving in an ordinary manner near Newton's resi-

dence. There was no consent to this search; there

was no emergency; no hot pursuit; no goods in the

process of imminent destruction or disappearance ;

nor were any furtive gestures made by any of the

occupants of the automobile.

The Court in Chambers, supra, p. 48, held that an

automobile can be searched on probable cause only

where a search warrant is impracticable or the auto-

mobile itself is in evidence. The automobile in the

present case was in no way connected with the in-

12

cident alleged and could not conceivably be con-

sidered an instrument thereof. Nor was a_ search

warrant impracticable since information concerning

the vinyl case was allegedly given to the arresting

officer six days prior to the arrest.

C. There Were No Circumstances Justifying A Search Incident

To Arrest.

Another exception to the requirement for a search

warrant is a search incident to arrest. Chimel v. Cali-

fornia (1969) 395 U.S. 752. However, searches inci-

dent to arrest are limited both as to time and place.

Chimel, p. 763, held that the arresting officer may

conduct ‘‘a search of the arrestee’s person and the

area ‘within his immediate control’ construing that

phrase to mean the area from within which he might

gain possession of a weapon or destructible evidence.”

With specific regard to weapons, both federal and

state courts have held that warrantless searches for

weapons incident to arrest are justified only where

the officer has ‘‘reasonable grounds to believe that he

is in danger of bodily harm or injury.” Grundstrom

uv. Beto (D.C. Tex. 1967) 273 F.Supp. 912, 917; U.S.

v. Tate (1962 D.C. Del.) 209 F.Supp. 762; Peo. v.

Superior Court (1972) 7 C.3d 186, 202; Peo. v. Marsh

(1967) 281 N.Y.S.2d 789. The court in Grundstrom,

supra, said that:

‘*To permit all searches incidental to an arrest to

be justified on the theory that the officer is

searching for weapons would be to allow whole-

sale fishing expeditions whenever a legal arrest

is made.”

13

In Tate the defendant was already out of the car

and in the custody of police officers when the illegal

search was made. Exactly as in the present case, both

defendants were outside the car and in the custody

of six police officers when the arresting officer re-

moved and searched the briefcase. Under these cir-

cumstances, neither of the defendants was in any

position to harm anyone or effect an escape with the

weapon.

Assuming, arguendo, that the seizure of the brief-

case was proper, it is still clear that a warrant was

required to search its interior. The basic premise

articulated in Katz v. U.S. (1967) 389 U.S. 347, 351,

that ‘“‘wherever an individual may harbor a reason-

able ‘expectation of privacy’ he is entitled to be freed

from unreasonable governmental intrusion” is di-

rectly applicable in the present case. Petitioners, at

the time of the arrest, were in the privacy of their

automobile, driving in a normal manner in the day-

time near the residence of one of them and had a

right to expect that the contents of a briefcase located

in that car was within the zone of protected privacy.

In a ease directly analogous to the present one,

Mozetti v. Superior Court (1971) 4 C.3d 699, the

California Supreme Court held the search of a closed

suitease located on the back seat of defendant’s car

without a search warrant was invalid because the

search was within the zone of reasonable expectation

of privacy. See also Terry v. Ohio (1968) 392 U.S. 1,

19. The rule in Chimel, supra, limiting the scope of a

search incidental to an arrest to the area immediately

14

within the defendant’s control and the rule in Katz

protecting the zone of reasonable expectation of pri-

vacy are controlling in this case.

III. THE WARRANTLESS SEARCH OF THE BRIEFCASE WAS

INVALID BECAUSE IT WAS NOT IMPRACTICABLE TO OB-

TAIN A SEARCH WARRANT.

The arresting officer testified at the hearing in the

trial court that the complainant told him on making

the report, six days before the arrest warrant was

issued and executed, that petitioner Bay carried a

firearm in a black vinyl case (Reporter’s Transcript

22, 23).

Where it is not impracticable to obtain a search

warrant, the Fourth Amendment prohibits a search

without one, Chambers, supra; Coolidge v. New

Hampshire, supra, p. 468; Vale v. Louisiana (1970)

399 U.S. 30. In Vale, the Court held that since the

officers were able to procure two warrants for Vale’s

arrest and had information that he was residing at

the address where they found him, there was no rea-

son to believe that it was impracticable for them to

obtain a search warrant as well and that therefore

the warrantless search was invalid. Likewise, in TJ'ru-

piano v. U.S. (1947) 334 U.S. 699, the court held that

despite the fact that contraband was in plain view at

the time of the arrest its seizure was unlawful because

the arresting officers had ample opportunity to pro-

cure a search warrant and failed to do so. Although

the Court in U.S. v. Rabinowitz (1949) 339 U.S. 56,

66, limited the rule in 7'rupiano, it limited it only to

15

the extent that a search warrant is required solely on

the basis of practicality, rather than on the reason-

ableness of the search. Furthermore, Chimel, supra,

overruled the broad justification in Rabinowitz that

a search merely be reasonable and required that it

must also be narrowly limited in scope. Inasmuch as

the warrantless search in the present case was unrea-

sonable, beyond the permissible scope, and a search

warrant would not have been impractical to obtain,

the search violated the requirements of the Fourth

Amendment.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari

must issue to review the judgment of the Appellate

Department of the Superior Court in and for the

County of Alameda, State of California. The judg-

ment of that Court should be reversed and _ the

evidence obtained by the warrantless search of de-

fendants’ automobile and briefcase must be suppressed.

Dated, San Francisco, California,

April 12, 1973.

Respectfully submitted,

Garry, Dreyfus, McTERNAN & Brotsky,

By CHar_es R. Garry,

Counsel for Petitioners.

FNS ERSTE ERLE ROS BEYER i PIP

(Appendix Follows)

a ma

_- . ceethieieetee)

APPENDIX

Exhibit A

Municipal Court for the Oakland-Piedmont

Judicial District, County of Alameda

State of California

People of the State of California, :

Plaintiff(s) | No. 25282-9A

ve. 25282-9B

Robert L. Bay and Huey P. Newton, 25712-5A

Defendant(s) 25712-5B

(Abbreviated Title) :

NOTICE OF HEARING

To each party and to the attorney(s) of record for

each party herein:

Notice is hereby given that Motion under 1538.5 PC

is DENIED. It is further ordered that the above

entitled cases are set for hearing on September 11,

1972 at 10 am., in Department 11 of this Court, at

Municipal Court Building, 600 Washington Street,

Oakland, California 94607.

Dated: Sep. 5, 1972

George R. Dickey, Clerk

By /s/ R. Taylor RT

Deputy Clerk

ea bees asta ri iso Saliba A

on ths cnt Scab a

+ Se SAS Rk TE RE TEE ae ST RT ere ENS Te NR el

se

Exhibit B

Superior Court of the State of California

In and for the County of Alameda

Action No. 637

People of the State of California, |

Plaintiff and Respondent,

vs. 4

Huey P. Newton and Robert L. Bay,

Defendants and Appellants. |

CLERK’S NOTICE in re RULING

In the above entitled action pending in Appellate

Department, you are hereby notified that this action

having been heretofore argued and submitted on Jan-

uary 19, 1973, comes now the Court and orders: Order

on Appeal affirmed. Remittitur to issue.

Date January 24, 1973

Jack G. Blue, County Clerk

By: Guin Holley

Deputy

(Endorsed) Filed January 24, 1973 Jack G. Blue,

County Clerk; By: Guin Holley, Deputy

pea SRE RSET ONC

ili

Exhibit C

Superior Court of the State of California

In and for the County of Alameda

Action No. 637

People of the State of California, )

Plaintiff and Respondent,

vs.

Huey P. Newton and Robert L. Bay,

Defendants and Appellants.

CLERK’S NOTICE in re RULING

In the above entitled action pending in Appellate

Department, you are hereby notified that the Court

having rendered judgment on January 24, 1973 and

the Appellant having submitted a Petition for Cer-

tification to the District Court of Appeal, and the

same having been taken under advisement and fully

considered, comes now the Court and orders: Said

Petition denied.

Date February 9, 1973

Jack G. Blue, County Clerk

By: Rhoda Ellenbogen

Deputy

(Endorsed) Filed February 9, 1973, Jack G. Blue,

County Clerk; By: Rhoda Ellenbogen, Deputy

iv

Exhibit D

CALIFORNIA RULES OF COURT

Rule 62. Transfer

(a) [Cases transferable] A Court of Appeal may

order a case transferred to it for hearing and de-

cision when the superior court certifies or the Court

of Appeal on its own motion determines from an

opinion of the appellate department published or to

be published in Advance California Appellate Re-

ports that such transfer appears necessary to secure

uniformity of decision or to settle important ques-

tions of law.

Rule 107. Rehearing and Finality of Judgments

(a) [Time for rehearing] At any time before

a judgment of an appellate department becomes final,

as hereinafter provided it may vacate such judgment

and order a rehearing.

(b) [When judgment becomes final] Unless a

rehearing shall be so ordered, every judgment of an

appellate department shall become final as follows:

(1) Upon the expiration of seven days after the

same shall have been pronounced, unless one er more

petitions for a rehearing shall have been filed within

said period of time;

(2) If one or more petitions for a rehearing shall

have been filed within said time, then upon the ex-

piration of 30 days after such judgment shall have

Vv

been pronounced, if such rehearing shall not mean-

while have been granted, or upon the denial of all

such petitions if all shall be sooner denied.

(3). Where the judgment is modified before it

becomes final, as above provided, the period specified

herein begins to run anew, as of the date of modifica-

tion; but a change of the opinion without modifica-

tion of the judgment does not postpone the time

when the judgment becomes final.

(c) [Petition, answer and determination] A pe-

tition for a rehearing must be served on all adverse

parties before filing, and filed within seven days

after the judgment shall have been pronounced, and

shall not be filed unless accompanied by due proof

of such service. An answer to any such petition may

he served on the petitioning party and filed, if ac-

companied by due proof of such service, within three

davs after service of such petition. If a rehearing be

ordered, the appellate department may place the case

on the calendar for further argument or submit it for

decision.

(d) The periods of time specified in this rule shall

be computed as provided in the Code of Civil Pro-

cedure, and extended in the eases and to the extent

specified by section 12a of said code, but shall not be

otherwise extended.

ONES DARE I

Exhibit E

CALIFORNIA PENAL CODE §1538.5—

MOTION TO SUPPRESS EVIDENCE:

(j) Relitigation of question after grant of motion;

new evidence, review.

... 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 suppres-

sion of evidence in the municipal court or justice

court prior to trial, both the people and defendant

shall have the right to appeal any decision of that

court 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 governing appeals from municipal and

justice courts in criminal cases.