People v. Keener

• Citation: 12 Cal.Rptr. 859,361 P.2d 587,55 Cal.2d 714
• Decision Date: 01 May 1961
• Docket Number: Cr. 6805
• Court: United States State Supreme Court (California)
• Parties: , 361 P.2d 587 PEOPLE, Appellant, v. Lionel KEENER et al., Respondents.

Page 859

12 Cal.Rptr. 859

55 Cal.2d 714, 361 P.2d 587

PEOPLE, Appellant, v. Lionel KEENER et al., Respondents.

Cr. 6805.

Supreme Court of California, In Bank.

May 1, 1961.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord and Harry B. Sondheim, Deputy Dist. Attys., Los Angeles, for appellant.

Russell E. Parsons, Harry E. Weiss and Daniel N. Busby, Los Angeles, for respondents.

GIBSON, Chief Justice.

The People appeal from an order setting aside an iformation charging violations of section 337a of the Penal Code (bookmaking).

The Honorable Arthur S. Guerin, Judge of the Municipal Court of the Los Angeles Judicial District, issued a search warrant which stated that proof of probable and reasonable cause for the issuance of a warrant had been made by an affidavit of Officer Hatter of the Los Angeles Police Department. The affidavit, which was attached to and made a part of the warrant, stated that an informant, whose identity could not be revealed without endangering his safety, advised the affiant that three named persons were engaged in bookmaking activities at two specified addresses, that the named persons had received certain stolen typewriters, adding machines, and guns, which were located at the two addresses, and that a vehicle with an identified license number was used in transferring typewriters and adding machines to one of the addresses. The affidavit also stated that the informant had given information to police officers in the past which led to four arrests for bookmaking activities and that the persons arrested were held to answer at preliminary hearings. Another informant, whose name was given, told the affiant that he had purchased a stolen gun from one of the three named persons, and an investigation of governmental and public utility records revealed that each of the named persons had been previously arrested a number of times on charges relating to bookmaking, that one of them had previously been arrested for burglary, that the vehicle mentioned by the informant was registered to individuals who were relatives of one of the three named persons, and that relatives of two of the named persons were connected with the addresses. Both the warrant and the affidavit particularly described the premises to be searched and the property to be seized. Among the articles mentioned were 'bookmaking paraphernalia' consisting in part of betting markers, scratch sheets, racing forms, business machines, and other memoranda relating to the conduct of bookmaking activities.

Searches pursuant to the warrant were made by Officer Hatter and other officers at one of the addresses and by additional officers at the other address. Articles used in bookmaking were recovered at each of the two addresses, and defendants were arrested. Subsequently two returns to the search warrant were filed, and a hearing was held before the Honorable William Rosenthal, Judge of the Municipal Court of the Los Angeles Judicial District, on a motion by defendants to quash the search warrant on the ground, among others, that the basis for probable cause indicated in the affidavit was hearsay information from an undisclosed informant. At that hearing Officer Hatter testified that no information was presented to the judge who issued the warrant other than the statements contained in the affidavit and that the unnamed informant did not participate in or witness the search or arrest. A request by defendants for disclosure of the informant's name and the motion to quash were denied.

Immediately after the denial of the motion to quash, a preliminary hearing was held before Judge Rosenthal. The court denied motions by defendants for continuances in order to file petitions for writs of prohibition. The transcript of the hearing on the motion to quash was admitted in evidence; there was testimony that the officers in executing the warrant found articles used in bookmaking, including records of bets; and, when the articles were offered in evidence, defendants objected on the ground that they were obtained as a result of an illegal entry and a search based on a defective warrant. The objections were overruled. No motion was made at the preliminary hearing to strike the testimony of the officers who made the search or for disclosure of the identity of the unnamed informant referred to in the search warrant. After one of the counts of the complaint was dismissed as to one of the defendants, both defendants were held to answer.

Defendants made a motion in the superior court under section 995 of the Penal Code to set aside the information on the ground that there was no probable cause for the search and that the evidence acquired upon the search was illegally obtained. ¹ The motion was granted.

A search warrant may be issued by a magistrate only upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property to be seized and the place to be searched. Cal.Const. art. I, § 19; Pen.Code, §§ 1523, 1525. If the magistrate is satisfied of the existence of the grounds for the application or that there is probable cause to believe their existence, he must issue the warrant to a peace officer commanding him to search the person and place named for the property specified. Pen.Code, § 1528. After the search the officer executing the warrant must return it to the magistrate with a written inventory verified by affidavit. Pen.Code, § 1537. Sections 1539 and 1540 of the Penal Code provide that, where the grounts for issuance of the warrant are controverted, a hearing shall be held and that, if it is found that there is not probable cause for believing the grounds on which the warrant was issued, the magistrate must restore the property to the person from whom it was taken. ²

The People take the position that the refusal of the magistrate to quash the search warrant was conclusive as to the validity of the warrant and, therefore, that the evidence obtained by the search was properly admitted at the preliminary hearing. It has been held that where a search warrant is valid on its face and the defendant seeks to attack the truth of statements in the supporting affidavit, he must proceed under sections 1539 and 1540 of the Penal Code and that, if he does not avail himself of this remedy, the facts upon which the warrant was issued may not be controverted at a preliminary hearing, at a hearing of a motion under section 995, or at a trial. People v. Dosier, 180 Cal.App.2d 436, 440, 4 Cal.Rptr. 309; People v. Lepur, 175 Cal.App.2d 798, 801- 802, 346 P.2d 914; People v. Nelson, 171 Cal.App.2d 356, 360, 340 P.2d 718; People v. Phillips 163 Cal.App.2d 541, 545, 329 P.2d 621; People v. Thornton, 161 Cal.App.2d 718, 721-722, 327 P.2d 161; Arata v. Superior Court, 153 Cal.App.2d 767, 769-775, 315 P.2d 473. As we have seen, however, the defendants involved in this case did apply to the magistrate for relief; their motion to quash the warrant for lack of probable cause, while not specifically asking for return of the seized property, was broad enough to include the grounds for relief set forth in sections 1539 and 1540; and during the hearing upon that motion they requested the name of the informant.

The ruling of the magistrate in denying the motion to quash should not be treated as final and conclusive with respect to defendants' right to attack the warrant for lack of probable cause. Section 1466 of the Penal Code, which sets forth the decisions of an inferior court from which an appeal may be taken in a criminal case, does not authorize an appeal from an order made under sections 1539 and 1540 or from a denial of a motion to quash a warrant, nor does any other provision allow such an appeal, and, under the general rule, and order is not appealable unless declared to be so by the Constitution or by statute. People v. Valenti, 49 Cal.2d 199, 204 et seq., 316 P.2d 633; cf. Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137; Weiss v. Garofalo, 89 Cal.App.2d 811, 201 P.2d 845; see 3 Witkin, California Procedure (1954), p. 2150. A defendant's failure to seek an extraordinary writ such as mandamus or prohibitions, where available, as a means of obtaining relief from an erroneous decision upon proceedings under sections 1539 and 1540 likewise should not be deemed a waiver of his right to attack the warrant for lack of probable cause when the prosecution at the preliminary hearing seeks to introduce evidence discovered upon the asserted illegal search. Defendants, prior to the preliminary hearing, did all that could reasonably be expected of them to preserve their rights, and, under these circumstances, the adverse ruling upon the motion to quash the warrant did not preclude them from subsequently raising at the preliminary hearing their claim that the warrant was defective.

We come now to the principal question, namely, whether the withholding of the identity of the informant under the circumstances involved here rendered inadmissible the evidence found as a result of the search.

It is important to keep in mind that the warrant met all the statutory requirements. For example, the warrant and its supporting affidavit, considered together, named the assertedly guilty persons, particularly described the place to be searched and the property to be seized, and set forth facts tending to establish probable cause for believing that the property to be...