Aday v. Superior Court of Alameda County

• Decision Date: 11 May 1961
• Citation: 13 Cal.Rptr. 415,55 Cal.2d 789
• Court: California Supreme Court
• Parties: , 362 P.2d 47, 8 A.F.T.R.2d 5367, 61-2 USTC P 9659 Sanford E. ADAY et al., Petitioners, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent. S. F. 20619.

Page 415

13 Cal.Rptr. 415

55 Cal.2d 789, 362 P.2d 47, 8 A.F.T.R.2d 5367, 61-2 USTC P 9659

Sanford E. ADAY et al., Petitioners, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent.

S. F. 20619.

Supreme Court of California, In Bank.

May 11, 1961.

Robert L. Brock and Stanley Fleishman, Hollywood, for petitioners.

J. F. Coakley, Dist. Atty., Richard J. Moore, William H. Ahern, John A. Lewis, John J. Fox and Thomas J. Buckley, Deputy Dist. Attys., Oakland, for respondent.

GIBSON, Chief Justice.

Petitioners, book publishers and distributors whose principal place of business is Fresno, applied to the District Court of Appeal for a writ of mandamus to compel the Superior Court of Alameda County to return to them property taken under an assertedly invalid search warrant. Relief was denied without opinion, and following a petition to this court for hearing we issue an alternative writ.

On September 16, 1960, Charles Ryken, a police officer from Alameda County, requested the Honorable Dan B. Eymann, Judge of the Municipal Court of the Fresno Judicial District, to issue a search warrant, and the officer executed an affidavit stating that petitioners committed a felony in Alameda, San Francisco, and Fresno counties in that they conspired to wilfully and lewdly 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). ¹ Copies of the two named books were attached to and made part of the affidavit, and it was stated that they had been purchased in Hayward by a police officer of that city. The affidavit also contained statements from which it appeared that one of the named books was published by petitioner Vega corporation and the other by petitioners Saber corporation and Mid-Tower corporation and that both books were assembled at one Fresno address and were distributed by petitioner West Coast News Company, which was the distributor of all Vega and Saber books. It was further averred that Mid-Tower was the 'publisher of Saber Books,' that one of the individual petitioners, Sanford E. Aday, was the sole owner of Mid-Tower and Vega, that Aday and another petitioner, Matthew Meehan, were officers of these two corporations and of West Coast, and that the third individual petitioner, Wallace Maxey, was an officer of Vega and West Coast.

In requesting that a warrant issue commanding the search of the persons of the individual petitioners and certain premises in Fresno, the affiant stated that he had probable cause to believe, and did believe, that there were in the possession of these individuals and on the premises described the following articles which were used as a means of committing a felony: 1. 'Checks, check stubs, cancelled checks, check books and bank statements.' 2. 'Sales records and purchase records.' 3. 'Customers' correspondence and customers' orders.' 4. 'Invoices.' 5. 'Bills.' 6. 'Vouchers.' 7. 'Statements.' 8. 'General ledgers, cash receivable ledgers, cash disbursement ledgers, subsidiary accounts receivable ledgers and subsidiary accounts payable ledgers.' 9. 'Mailing lists.' 10. 'Duplicate copies of federal and state income tax returns' of the individual and corporate petitioners 'for the year 1959.' 11. 'Articles of Incorporation.' 12. 'Minutes of the board of directors.' 13. 'Stockholder records.' 14. 'Corporate records' of the corporate petitioners. 15. 'Corporate records, papers, correspondence, sales receipts and bills of lading having to do with' the corporate petitioners. 16. 'Books and magazines, including 'Sex Life of a Cop' also known as '10:04 Sgt. Thorne', and 'Joy Killer', but not limited thereto.' 17. 'Model releases, writings, stories, cartoon and advertisements.' 18. 'Contracts.' 19. 'Any and all other records and paraphernalia connected with' the business of the corporate petitioners.

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, namely, the address of Mid-Tower and the address of the building where the two named books, as well as all books published by Vega, were assembled, and it commanded that the executing officers search these persons and premises for the property.

Police officers of Fresno and Alameda counties, acting under the general direction of Deputy District Attorney Ahern of Alameda County, went with the warrant to the addresses specified in it and conducted a search of those premises for approximately eight hours. The officers seized thousands of copies of the two books named in the affidavit and the warrant. Sample copies of over 50 other books were also taken, 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. The property was brought on the evening of September 16 to the home of Judge Eymann, and he ordered that it be taken to the Fresno jail.

On September 19 petitioners served and filed with the magistrate a traverse of the grounds for issuance of the warrant and a notice of a motion for restoration of the seized property pursuant to the provisions of sections 1539 and 1540 of the Penal Code. ² They claimed that the warrant was invalid and that in any event property was taken which was not the same as that described in the warrant. A hearing was commenced that morning before Judge Eymann and was continued until September 20 at the request of petitioners. Later on September 19 Ahern obtained an order from the Honorable Charles Wade Snook, Judge of the Alameda County Superior Court, directing that the seized property be brought to Alameda County, and this was done in the evening of the same day. Judge Eymann was not consulted but was informed that evening by Ahern of what has occurred. On September 20 the magistrate talked by telephone to Judge Snook, who stated that in his opinion the removal of the property to Alameda County was legal, that he intended to have the property presented to the Alameda County grand jury the next day, and that he was aware that no hearing on the validity of the search and seizure had been held in Fresno. Judge Eymann was of the view that the presence of the property in Fresno was essential in order to proceed with the hearing, and, over the objections of petitioners, the matter was continued until September 29.

Upon resumption of proceedings Ahern stated that it was impossible to present the property because it was still in the possession of the Alameda County grand jury, which would be in session until October 24. A hearing on the validity of the warrant was then held, and it was agreed that, if Judge Eymann should determine that the warrant was valid, another hearing would be held on November 18 to pass upon the issue whether property not described in the warrant was taken. The magistrate determined the warrant was valid, and petitioners instituted this mandamus proceeding for the return of their property.

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 petitioners. Articles of the type listed in general terms in the warrant are ordinarily innocuous and are not necessarily connected with a crime. The various categories, when taken together, were so sweeping as to include virtually all personal business property on the premises and placed no meaningful restriction on the things to be seized. Such a warrant is similar to the general warrant permitting unlimited search, which has long been condemned. See People v. Berger, 44 Cal.2d 459, 461, 282 P.2d 509. ³ The early case of Entick v. Carrington, 19 Howell's State Trials 1029 (1765), held that a warrant which authorized the seizure of defendant's 'books and papers' was too general and was invalid, and this court has held that a reference in a warrant to property as 'personal goods and property, to-wit, certain paraphernalia,' without any further specification, does not satisfy the requirement of reasonable particularity of description (People v. Mayen, 188 Cal. 237, 242, 205 P. 435, 24 A.L.R. 1383). The warrant in the present case did not comply with that requirement except with regard to the 1959 income tax returns and the two named books, and therefore it did not constitute legal authorization to search for and seize the articles that were insufficiently described.

The warrant was invalid with respect to...