# Petition for a Writ of Certiorari — Parra v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1153%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 1116 ## Text MARTHA GOLDIN 6430 Sunset Blva. Suite 521 Hollywood, Cal. 90028 {213] 461-3464 Attorneys for Petitioner DAE ELIE AEA ION AEA AED ALOE IEE TE IN THE | SUPREME COURT OF THE UNITED STATES October Term, 1973 NO. NICHOLAS JOSEPH PARRA, Petitioner, Ve PEOPLE OF THE STATE OF CALIFORNIA, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT ALAN SALTZMAN and MARTHA GOLDIN 6430 Sunset Blvd. Suite 521 Hollywood, Cal. 90028 [213] 461-3464 Attorneys for Petitioner ‘ TOPICAL INDEX - oe pees ' Page - Table of Authorities » ii OPINION BELOW } 2 JURISDICTION 2 QUESTIONS PRESENTED £ a search must be strictly limited to the circumstances vhich rendered its initiation permissible (Terrv v. State of Ohio, 392 U.S. 1, 19 [20 L.Ed.2d 889, 88 S.Ct, 1868, 1878]; silbert v. California, 368 U.S. 263, 274-275 [18 L.Ed.2d 1178, 1187-1188, 87 S.Ct. 1951, 1957]; People v. Marshall, 69 Cal.24 1, 59-60), it is noted that the items found elsewhere in the lesk and in the shop subsequent to discovery of the contraband ire the unlawful product of a general, unprivileged police earch, However,. appeilant does not raise the point, which can @ taken as a concession that the evidence of the first-seen SONTAG, which by itself would have supported a conviction, as the efficient cause of appellant's guilty plea. The judgment is affirmed. CERTIFIED FOR PUBLICATION. , COURT OF APPEAL, FOURTH DISTRICT i 7 ae SECOND DIVISION = COURT OF AFPEALENLT OSS, . ee SS, STATE OF CALIFORNIA . RFI Lif D ps hee. : FEB 2 11973 0 et duo N ER, MeDOVICLL, Clerk : ‘MWe PEOPLE OF THE STATE OF CALIFORNIA, ) .: UCR “Plaintifé and Respondent, § ) - 4 Crim, 5530 ov. ; on esas) NICHOLAS JOSEPH PARRA, oe Defendant and Appellant. 45° DISSENTING OPINION. ier respectfully dissent. Assuming that necessity justitied entey into the shop to determine whether a burglary was in progress or had been. committed (but see Horack v. Superior Court, 3 Cal.3d 720), once the officers checked the premises out and found no _ unauthorized persons present or evidence of a burglary). —- 7 having been committed, there no longer existed an immediate threat to life, health or property which justified rummaging through the owner's desk drawer however laudable the officers’ | motives may have been. The "necessity" upon which the majority seek to justify the search of the desk was no more imminent than the necessity arising out of the quandary faced by the ep re re REE — -4 officers in People vy, Smith, 7 cal. 34° 282, as to what to do : with the child who had been left alone in her apartment. ; ‘In Smith the court commended the ‘officers for their solicitude | "for the child's safety and welfare but pointed out that the ‘ issue was "not simply whether the conduct of Officer Brown might have been ‘reasonable’ under all the circumstances, but whether the People have shown that his entry into Mrs. Blim's home falls within one of the ‘few specifically established and well-delineated exceptions’ to the warrant ) requirement. [Citations.]"" (7 Cal.3d at 286.) The court * held that the "necessity" or "emergency doctrine" "must not be permitted to swallow the rule: in the absence . Of @ showing of true necessity -- that is, an imminent and substantial threat to life, health, or property ‘e- the . - constitutionally guaranteed right to privacy must prevail.” 5 _ (Emphasis supplied.) (7 Cal.3d at 286.) .. ates People v. Lanthier, 5 Cal.3d 751, ts clearly | distinguishable. There the noxious odor emanating ‘ ‘from te locker constituted @ nuisance; it posed a present and . iontnent threat to the health, safety and welfare of the studets, An unlocked business premises, however, without * more, ches not pose such an imminent threat to life, health Or property, The majority poses a threat which was > peenihde but not one which was imminent. . L junder the wajotity holding, if the police were unable to find evidence of the proprietor's identity in the first desk drawer, presumably they could continue to Look, through the. ‘remaining drawers and perhaps even rummage through file cabinets or other personal effects in order to find evidence of such identity. The mere fact - of an unlocked business premises cannot be used to justisy | wks such a serious and extensive intrusion into a citizen's ‘i file Fourth Amendment right of privacy. Other alternative: *. : means of safeguarding the premises were apparently not - considered, The officers could have wedged the front - door shut, called a locksmith, or paid special pene: hs t6 the premises during patrol. aoe i Na I would hold the search unlawful under People \ v. 3 va S Smith, supra, 7 Cal.3d 282, and Horack v. —Suserior Court, og 3 Cal.3d 720, and reverse the judgment, © Mr ee i He vee. s _ CERTIFIED FOR PUBLICATION. oe _ Bh ee A oe Se a ee /s/' Tamura od . y aw 3 PiJde de . 4 - ° e & Fie . _— . at age CLERK'S OFFICE, SUPREME ‘COUR! 4250 STATE BUILDING San Francisco, Carzrornra 94102 MAY 9 1973 Dear Sm: I have this day filed Order...._ ae tas @ “Pee . . e *G- MZARING DEMAD _ In re:. Ht. Crdm.__No.__5530_ People vs. —_' Parra _ Respectfully, G. E. BISHEL Clerk ©7723-677 16-78 8M O8P . | EXHIBIT "Bp" ' APPENDIX C_ CONSTITUTIONAL AND STATUTORY PROVISIONS..INVOLVED, 1. The provisions of the Pourth Amendment are: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 2. The provisions of the Fourteenth Amendment, Due Process clause: "***nor shall any State deprive any person of life, liberty, or property, without due process of law; ***" 3. The pertinent provisions of $995 of the California Penal Code are: "The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: «+eIf it be an information: ...That the defendant had been committed without reasonable or probable cause." 4. The pertinent provisions of §1538.5 of the California Penal Code are: "(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on * * either of the following grounds: "(1) The search or seizure with- out a warrant was unreasonable * * * "(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, 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 re- lating 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 wil- ling to waive a portion 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 evi- dence presented at a special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed . Within 38, days. after the denial of his [hike ot Aik seecinl haaxing.*. ««-- "“(m) The proceedings provided for in this section, Section 995, Sethton 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to con- viction to test the unreasonableness of a search or seizure where the person making the motion for the return of tiie or the suppression of evidence is. a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him. A defendant may seek further review of the validity of a search or seizure on appeal from a con- viction in a criminal case notwithstanding 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 evidence." 5. The pertinent provisions of §11500.5 of the Health and Safety Code are: "Except as otherwise provided in this division every person who possesses for sale any narcotic other than mari- juana shall be punished by imprisonment in the state prison for not less than five years nor more than 15 years, and shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than 2 1/2 years in prison." , _ « 14 Ee ay Pita : A ; 5 ed ‘ r y 4 ‘ Meer oe bs p ‘ st ¥ s . | : : ‘ . ¢ October Term 1973 NO. 73-256 NICHOLAS JOSEPH PARRA, Petitioner, v. THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT BRIEF OF RESPONDENT IN OPPOSITION EVELLE J. YOUNGER, Attorney General EDWARD A. HINZ, JR., Chief Assistant Attorney General - - Criminal Division DORIS H. MAIER, Assistant Attorney General - - Writs Section A. WELLS PETERSEN, Deputy Attorney General YVONNE H. BEHART, Deputy Attorney General 1350 Front Street, Room 5006 San Diego, California 92101 Telephone: (714) 236-7351 Attorneys for Appellant --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1153%3A1. Public record. Not legal advice.