188 Cal. 237, Cr. 2388, People v. Mayen

• Citation: 188 Cal. 237, 205 P. 435
• Opinion Judge: SLOANE, J.
• Party Name: PEOPLE v. MAYEN.
• Attorney: Cooper, Collings & Shreve, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., Arthur Keetch, Deputy Atty. Gen., and John W. Maltman, of Los Angeles, for the People.
• Judge Panel: We concur: SHAW, C. J.; LAWLOR, J.; SHURTLEFF, J.; WASTE, J. WILBUR, J. I concur.
• Case Date: February 21, 1922
• Court: California Supreme Court

Page 237

188 Cal. 237

205 P. 435

PEOPLE

v.

MAYEN.

Cr. 2388.

Supreme Court of California.

February 21, 1922

Page 238

In Bank.

See, also, 193 P. 173, 813.

Page 239

Appeal from Superior Court, Los Angeles County; Paul J. McCormick, judge.

[205 P. 436]Cooper, Collings & Shreve, of Los Angeles, for appellant.

U.S. Webb, Atty. Gen., Arthur Keetch, Deputy Atty. Gen., and John W. Maltman, of Los Angeles, for the People.

SLOANE, J.

The defendant appeals from a judgment of conviction of grand larceny and of attempted grand larceny.

The case is before us upon an order for hearing in the Supreme Court after judgment of reversal in Division 2 of the Second District Court of Appeal.

The important point in issue and upon which the District Court of Appeal set aside the verdict and reversed the judgment of the trial court arose upon the admission in evidence, on the trial, of certain incriminating articles of personal property which had been taken from the apartments of defendant without his consent under the authority of an alleged search warrant.

The facts attending the taking, detention, and use of this evidence as concisely stated by the District Court of Appeal are as follows:

‘After appellant was arrested his home was entered by a detective in the service of the district attorney and articles

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described as follows were taken from the place: Three photographs of appellant, four or more letters in the handwriting of appellant, addressed to his wife, three or more letters written by Mrs. Mayen to appellant, a memorandum book, seven or eight plans and specifications of mining property, and a valise containing papers, letter heads and newspaper clippings. These were all delivered, by the officer, to the custody of the district attorney. On the occasion of the entry the detective was armed with a search warrant, issued pursuant to an affidavit which contained only the following reference to the property sought to be seized after search therefor: ‘That personal goods and property, to wit, certain paraphernalia, is now concealed in the house of’ appellant. The warrant itself described the property to be seized merely as ‘certain personal property used as a means of committing a public offense, to wit, attempted grand largeny.’ On the day of his trial, several hours before the work of impaneling a jury was commenced, and, as it was alleged, within four days after he had been advised by counsel of his rights in the premises, appellant presented to the trial court his motion for an order requiring the district attorney to return to him the papers and other articles which had been seized under the warrant. This motion was made pursuant to a written petition substantially in the form approved in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and upon the ground that the search warrant was invalid and ineffective, and that therefore the seizure was in violation of appellant's rights under the Fourth and Fifth Amendments to the Constitution of the United States and sections 13 and 19 of article 1 of the Constitution of California. The court denied the motion. Later, when certain of the seized papers were offered in evidence, appellant objected to their reception on the grounds upon which he had made the motion, but the objection was overruled and various of the documents were admitted.'

It is the contention of appellant that the search and seizure were in violation of the Fourth Amendment to the Constitution of the United States and section 19 of article 1 of the Constitution of California, which provide that——

‘The right of the people to be secure in their persons, houses,

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papers, and effects, against unreasonable searches and seizures, shall not be violated, and that 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.’

It is also contended that the admission in evidence of articles so seized over the timely objection of the defendant is in violation of the provision of the Fifth Amendment to the Constitution of the United States and section 13 of article 1 of the Constitution of California, that no person shall be compelled in any criminal case to be a witness against himself.

All consideration of the application of the federal Constitution to this case may be at once eliminated, as it is well settled that the Fourth Amendment to the Constitution of the United States relating to searches and seizures only applies to the federal government and its agencies. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; State v. Peterson (Wyo.) 194 P. 342, 13 A. L. R. 1284; Gindrat v. People, 138 Ill. 103, 27 N.E. 1085. In the Weeks matter it was held that, even where the matter was pending in the federal court, the unlawful search and seizure having been made before the finding of the indictment, and not by an officer of that court, the provisions of the Constitution could not be invoked against the evidence so procured. Consequently, the rule adopted by the United States courts is not controlling authority here and is not necessarily applicable in principle to the interpretation of the state Constitution on this point.

We are confronted, then, with the open question, unless it is foreclosed by the decisions[205 P. 437] of our own courts, whether the admission of the evidence complained of constitutes a violation of the constitutional rights of the appellant under sections 19 and 13 of article 1 of the Constitution of this state.

It must be granted, to begin with, that the search warrant under which the effects of appellant were taken was invalid. It is declared in section 19 of article 1 of the Constitution, after providing against unreasonable searches and seizures, that no search warrant shall issue except upon

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oath or affirmation, particularly describing the things to be seized, and it is provided by section 1525 of the Penal Code that such a warrant may not issue except upon affidavit particularly describing the property sought to be made the object of the search, and by sections 1528 and 1529 that the warrant itself must describe the property with ‘reasonable particularity.’ As shown in the statement of facts heretofore quoted, the affidavit in this case merely referred to the property to be taken as ‘personal goods and property, to wit, certain paraphernalia,’ and the warrant contained no other description than ‘certain personal property used as a means of committing a public offense, to wit, attempted grand larceny.’

If it were conceded that the description in the warrant met the requirement of the Code for ‘reasonable particularity,’ in view of the fact that all the information the affiant had in the matter was the admission of the defendant that he had enough evidence in his apartment to hang him, yet not even the meager description of the warrant was contained in the affidavit which was the source of the magistrate's authority to issue a search warrant.

It must be admitted, then, that the search and seizure was unreasonable and unlawful and violated the rights of appellant as guaranteed by section 19 of article 1 of the Constitution of California.

Without at all minimizing the gravity of such offense, or the sacredness of the right of every citizen to be secure in his person, home, and property from any unlawful invasion by the state, it does not follow that the subsequent detention and introduction in evidence of the property thus wrongfully taken constituted error on the trial of the appellant.

The trespass committed in the wrongful seizure of these personal effects by unauthorized officers, and the subsequent use of the same in evidence on the part of the prosecution, were in legal effect entirely distinct transactions with no necessary or inherent relation to each other.

There was nothing in the character of the articles taken, or in the fact that they belonged to the defendant, which affected their competency as evidence.

It is conceded that they were relevant and material to the case for the prosecution, and appellant's counsel themselves

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claim that these personal effects were of such significance in the case as to determine the verdict against their client.

There is no rule better established or more universally recognized by the courts than that where competent evidence is produced on a trial the courts will not stop to inquire or investigate the source from whence it comes or the means by which it was obtained.

There is no need to elaborate this proposition. The general rule is thus stated by Greenleaf (1 Greenl. on Ev. § 254):

‘Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully, or unlawfully, nor will it form an issue to determine that question.’

Or, as stated in Commonwealth v. Dana, 2 Metc. 329, where the Supreme Court of Massachusetts was considering such evidence offered in a lottery case:

‘Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence. * * * When papers are offered in evidence, the court can take no notice how they were obtained * * * nor would they form a collateral issue to determine that question.’

The...