Aday v. Municipal Court of Burbank Judicial Dist. in Los Angeles County

• Decision Date: 27 November 1962
• Citation: 210 Cal.App.2d 229,26 Cal.Rptr. 576
• Court: California Court of Appeals Court of Appeals
• Parties: Sanford E. ADAY, Jack A. Lindsay, Reba A. Chamberlain, and Dorothy Elizabeth Mauricio, Petitioners, v. MUNICIPAL COURT OF the BURBANK JUDICIAL DISTRICT IN the COUNTY OF LOS ANGELES, State of California et al., Respondents. PEOPLE of the State of California, Real Party in Interest. Civ. 26597.

Page 576

26 Cal.Rptr. 576

210 Cal.App.2d 229

Sanford E. ADAY, Jack A. Lindsay, Reba A. Chamberlain, and Dorothy Elizabeth Mauricio, Petitioners, v. MUNICIPAL COURT OF the BURBANK JUDICIAL DISTRICT IN the COUNTY OF LOS ANGELES, State of California et al., Respondents.

PEOPLE of the State of California, Real Party in Interest.

Civ. 26597.

District Court of Appeal, Second District, Division 2, California.

Nov. 27, 1962.

Rehearing Denied Dec. 26, 1962.

As Modified Dec. 27, 1962.

Hearing Denied Jan. 23, 1963.

Brock & Fleishman, Hollywood, for petitioners.

Harold W. Kennedy, County Counsel, Donald K. Byrne, Deputy County Counsel, for respondent Municipal Court of Burbank.

Samuel Gorlick, City Atty., Burbank, James J. Clancy, Asst. City Atty., for respondents City of Burbank and City Atty. of Burbank.

William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord, Deputy Dist. Attys., for respondent Dist. Atty. of Los Angeles County, and for real party in interest.

ASHBURN, Justice.

Petitioners, Sanford E. Aday, et al., seek mandamus requiring the return to them of all books, magazines, papers, records, office supplies and other items of property which were taken from them after an unlawful search and seizure which occurred at their place of business, Number 2823 North Lima Street, Burbank, California, on March 15, 1961. That the search and seizure were unlawful cannot be gainsaid. They were wholly inconsistent with that concept of 'ordered liberty' ¹ which is inherent in our national foundations and necessary to their continued life.

Curiously, petitioners do not tell us what their business is or was ² but the affidavit of Sergeant Robert J. Steckbauer of the Burbank police force, upon which a search warrant was issued, avers that petitioners were engaged in publishing and distributing lewd and obscene pictures and books at said Burbank address and the search warrant contains substantially the same language.

The search warrant was issued by Honorable Archie L. Walters, Judge of the Municipal Court of the Burbank Judicial District, on March 15, 1961, and purported to authorize search for and seizure of '(1) Photographs depicting males and females in obscene poses and prints and negatives of the same; (2) Books and magazines, including 'Sex Life of a Cop,' also known as '10:04 Sgt. Thorne,' and 'Joy Killer,' but not limited thereto; (3) Contracts of employment between the aforesaid Sanford E. Aday, also known as Les Aday; Reba Chamberlain, Jack Shulem and Harold Shulem; (4) Agreements of purchase and sale between the aforenamed parties; (5) Documents evidencing the shipment of the aforesaid books and photographs, including bills of lading and other shipping records; (6) Cuts, molds and plates of the aforesaid obscene photographs and books; (7) Sales records and purchase records of said books and photographs',--'which articles, writing and property constitute evidence tending to show that a felony has been committed.'

On said March 15, at about 8:15 p. m., Burbank police officers (accompanied by a deputy district attorney of Alameda County) forcibly and violently effected an entrance into petitioners' said premises and 'engaged in a general rummaging, ransacking and exploratory search of the premises which consumed from about 8:15 P.M. on Wednesday, March 18, 1961 [March 15], to the early morning hours of Saturday, March 18, 1961, the business of the petitioners being in the meantime entirely shut down, a cordon of police being placed around the building, and access to the premises prevented by the said police. Commencing about 2:00 P.M. on Friday, March 17, 1961 until the early morning hours of March 18, 1961, the said police officers, in various trucks, removed from petitioners' premises about 400,000 books, writings, unopened mail, sealed packages, cartons, bank statements, checks, bills of lading, employees' work records, labels, rubber stamps and other similar papers, things and effects on the said premises. An inventory of the material taken was executed by the police officers, the said inventory being prefaced with the following statement: 'To Whom it May Concern: The following material was removed for purposes of evidence pursuant to the attached search warrant executed March 15, 1961.'' The officers 'while on the premises during the search as aforestated, divided the various titles of different books in the premises, some sixty-two in number, among themselves for reading purposes, each officer taking some 10 to 12 books, and from about 6:30 P.M. on March 16, 1961 to about 1:30 A.M. on Friday, March 17, 1961, a period of some seven hours, the said police officers read the different books, and 'ruled' whether each book was obscene or not.' They ruled 31 titles to be 'not pornographic' but took a copy of each from the premises. The books and other material which they ruled to be pornographic were also seized and removed as shown by the inventory which they furnished to petitioners,--approximately 2089 cases and 1772 loose books; also 'magazines, stamps, layouts, glue presses, negatives, letters, invoices, bills of lading, collection records, inventory notebooks, envelopes, name stamps, lists of customers, check books, checks, shipping stickers, bank books and similar papers, records and effects.'

Petitioners promptly entered a traverse controverting the grounds on which the warrant was issued (Pen.Code, § 1539), and moved for a return of all seized articles. After a hearing Judge Walters, on April 24, denied their motion for restoration except as to certain items which had been returned during the proceeding pursuant to stipulation. All this occurred shortly before the Supreme Court's decision in Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47.

That proceeding grew out of an Alameda search warrant and a search of September 16, 1960. The affidavit for the warrant, made by police officer Ryken, alleged conspiracy to publish, print and sell "obscene and indecent writings, papers and books, to wit, '10:04 Sgt. Thorne,' also known as 'Sex Life of a Cop,' and 'Joy Killer,' among others' (Pen.Code, §§ 182, 311, subd. 3).' Copies of those two books were attached and the officer-affiant averred he had purchased them in Hayward. The affidavit also stated on information and belief that petitioners had possession upon the described premises of articles which were used as a means of committing a felony, such as checks, check stubs, check books, bank statements, sales records, purchase records, customers' orders, customers' correspondence, invoices, bills, vouchers, general ledgers, cash receivable ledgers, cash disbursement ledgers, mailing lists. Also: 'Books and magazines, including 'Sex Life of a Cop' also known as '10:04 Sgt. Thorne,' and 'Joy Killer,' but not limited thereto.' 'Any and all other records and paraphernalia connected with the business of the corporate petitioners.' The affidavit was presented to Hon. Dan B. Eymann, Judge of Municipal Court for Fresno Judicial District.

'Judge Eymann, after reading portions of the two named books, issued a warrant reciting that proof had been made by Ryken's affidavit that petitioners had conspired as alleged and that the 19 categories of property described in the affidavit (which were set forth in the warrant) were used by petitioners as a means of committing the felony. The warrant stated that there was probable cause to believe that the described property was concealed upon the persons of the individual petitioners and the premises at two Fresno addresses * * * and it commanded that the executing officers search these persons and premises for the property.' (Aday, at pp. 793-794, 13 Cal.Rptr. at p. 418, 362 P.2d at p. 50.)

Pursuant to this warrant the officers conducted an eight-hour search of the premises and seized thousands of copies of the two books named in the affidavit plus sample copies of more than 50 other books as well as certain photographs and magazines. 'A great variety of papers and records were seized including orders, invoices, letters, checks and a checkbook, savings account books, articles of incorporation, ledgers, manuscripts, blank tax returns, and lists of dealers, news agencies and accounts.' (Aday, p. 794, 13 Cal.Rptr. p. 418, 362 P.2d p. 50.) The seized articles were lodged in the Fresno jail. Petitioners filed a traverse and motion for return of the property but during a recess in that hearing, Judge Snook of Alameda County Superior Court made an order directing that the seized property be brought to Alameda County for presentation to the grand jury. Later, upon conclusion of the hearing under Penal Code § 1539, the magistrate held the warrant to be valid and the owners sought and obtained mandamus from the Supreme Court.

In granting the peremptory writ that court said in part at page 795, at page 419 of 13 Cal.Rptr., at page 51 of 362 P.2d: 'Article I, section 19, of the California Constitution reads: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue, but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.' Section 1525 of the Penal Code provides: 'A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.' (See also Pen.Code, § 1529 [requiring 'reasonable particularity' of description].)

'Aside from the reference to copies of the 1959 federal and state income tax returns of petitioners and the naming of the two books attached to the affidavit, the description in the warrant before us consisted of a number of broad, general categories, the last of which embraced 'any and all other records and paraphernalia' connected with the business of the corporate pe...