# Petition for Writ of Certiorari — Newton v. California

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0416%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 819

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0416%3A1. Public record. Not legal advice.