Arata v. Superior Court In and For San Mateo County
| Decision Date | 13 September 1957 |
| Citation | 315 P.2d 473,153 Cal.App.2d 767 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Louis John ARATA and William E. Dower Petitioners, v. The SUPERIOR COURT of the State of California in and for the COUNTY OF SAN MATEO, Respondent. Civ. 17684. |
Joseph C. Haughey, San Francisco, for petitioner.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
Certain personal property was seized under authority of a search warrant. At the preliminary examination the defendants challenged the legality of the seizure because of asserted insufficiency of the affidavit upon which the warrant was based. They sought by their cross-examination of the affiant to show that significant facts stated in the affidavit were not within his personal knowledge and therefore did not furnish legal support for an inference of 'probable cause' (State Const., Art. I, § 19) upon the part of the judge who, upon reading the affidavit, issued the warrant.
The committing magistrate found against the defendants. Then, in the superior court, they made and the court denied a motion to dismiss the information for lack of reasonable or probable cause. They now petition us for a writ of prohibition.
This is an appropriate inquiry. 'Prohibition is the proper remedy to prevent threatened action in excess of jurisdiction * * *, and it is an appropriate means to test the right of the People to proceed with a prosecution when the validity of an indictment or information is challenged on the ground that the defendant has been indicted or committed without reasonable or probable cause.' Rogers v. Superior Court, 46 Cal.2d 3, 7, 291 P.2d 929, 931. When, as in this case, all of the evidence tending to show probable cause was seized pursuant to a search warrant, the validity of the warrant, if questioned, becomes an issue.
We must bear in mind, of course, that the issuance of a search warrant is a judicial act. A warrant may be issued only upon 'probable cause, supported by oath or affirmation' (Const., Art. I, § 19; Pen.Code, § 1525) by a 'magistrate' (Pen.Code, § 1523) who must examine on oath the plaintiff and any witnesses he may produce and take their depositions (§ 1526) and thereupon be 'satisfied of the existence of the grounds [see § 1524] of the application, or that there is probable cause to believe their existence' (§ 1528). See Mari v. State, 1928, 152 Miss. 225, 119 So. 177, 178, and Sykes v. State, 1930, 157 Miss. 600, 128 So. 753, 754; issuance of search warrant is an adjudication that probable cause exists for the search.
The only review of such a judicial act that is specifically provided by law is the review sanctioned by sections 1539 and 1540 of the Penal Code. 'If the grounds on which the warrant was issued by controverted, he [the magistrate who issued the search warrant] must proceed to take testimony * * *.' (§ 1539.) 'If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate [he who issued the warrant] must cause it to be restored to the person from whom it was taken.' (§ 1540.)
When, as in this case, the defendants fail to pursue this remedy, they should be and, under the circumstances of this case, are precluded from controverting the facts stated in the affidavit upon which the search warrant was based. See State v. Best, 1930, 150 A. 44, 48, 8 N.J. Misc. 271; United States v. McKay, D.C., 2 F.2d 257, 259-260. Additionally persuasive of this view is the majority rule that 'apart from governing statutory provisions * * * one against whom a search warrant is directed may not dispute the matters alleged in the verified complaint supporting the warrant.' 5 A.L.R.2d 396. See authorities collected at pages 396-405 of 5 A.L.R.2d, and in 1948-1957 A.L.R.2d Supp.Serv. at page 270.
This, of course, does not preclude a review of the decision of the magistrate by reading the warrant and determining therefrom its sufficiency as a matter of law. That was what the court did in People v. Berger, 44 Cal.2d 459, 282 P.2d 509, indicated by the statement that the warrant 'placed no restrictions on the area to be searched or the things to be seized' (44 Cal.2d at page 461, 282 P.2d at page 510), a violation of the requirement that the warrant 'particularly' describe 'the place to be searched and the persons and things to be seized' (Const., Art. I, § 19; supplemented by Penal Code, § 1525).
In the instant case, our examination is of the supporting affidavit, to ascertain if it furnished sufficient competent evidence to support the magistrate's finding of probable cause when he issued the warrant.
The affiant was A. L. Lamport, an investigator in the office of the district attorney of the county. He stated in the affidavit that 'he has, and there is just, probable and reasonable cause to believe, and that he does believe, that there is now in the possession' of the defendants, at 1683 and 1687 Old Mission Road 'certain bookmaking paraphernalia, to wit: papers, charts, records, ledgers, pencils, scratch sheets, racing form publications, markers, money, radios, telephones and other bookmaking property and paraphernalia'; that the defendants 'intend to use the same as a means of committing a public offense * * * the crime of felony, in violation of section 337a of the Penal Code,' and that said property will be needed as evidence in the prosecution for said offense.'
Having named the persons, described the property and place to be searched, specified the grounds for the search, and stated there is probable and reasonable cause to believe that the facts thus recited do exist, the affiant proceeded to detail the evidentiary facts upon which he based his belief.
Affiant stated that he is an investigator in the office of the district attorney and 'in such capacity has been advised by reliable persons that the telephones in the above premises are being used for bookmaking operations'; that the defendants have been seen entering the premises in the morning and leaving in the afternoon; that they do not reside there and have no visible legitimate cause to be there; and that 'affiant has reasonable and probable cause to believe' that there are two telephone communication lines serving the premises, numbers Plaza 6-4881 and Plaza 6-1481.
'Further, that an informant advised that a bookmaking operation was being conducted at telephone number JU. 6-2557; that upon investigation it was determined this was an unlisted telephone number in the name of [defendant] William E. Dower and that the telephone was located at 91 Oriente Street, Bayshore, City, San Mateo County'; that the premises at 91 Oriente Street were put under surveillance; various persons were observed coming and going on numerous occasions during the usual and normal hours of activity for a bookmaking operation, said person apparently having no lawful business on the premises; that while the premises were under survillance its occupancy terminated and all activity above mentioned terminated and the telephone above referred to was ordered disconnected; that 'subsequently the same informant has again advised that the same bookmaking operation has been transferred and stated that they are now using telephones listed as numbers Plaza 6-4881 and Plaza 6-1481, which telephones are, according to investigation, in the premises known as 1683-1687 Old Mission Road, respectively'; that surveillance was placed on the premises at Old Mission Road; that 'automobiles and persons connected in the Bayshore City suspected bookmaking activity have been observed coming and going on numerous occasions without apparent lawful business thereon during the usual hours of normal activity for bookmaking operations;
'That the premises known as 1681 and 1683 on Old Mission Road have been the subject in the recent past of an investigation by law enforcement agencies centering around a bookmaking operation in San Mateo County.' Nex, affiant asserted that defendant Arata had been arrested three times for violation of section 337a of the Penal Code and has in the past purchased a federal wagering stamp; and that defendant Dower has been the subject of an investigation centering about a bookmaking operation in San Mateo County.
The specific facts thus laid before the magistrate furnished ample support for his becoming 'satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence' (Pen.Code, § 1528; emphasis added), if he believed the affiant; 1 i. e., if the magistrate could properly consider facts stated upon the information and belief of the affiant.
This question was given a favorable answer in the early case of Collins v. Lean, 68 Cal. 284, 9 P. 173. The defendant, a duly appointed qualified and acting police officer, 'acting upon the information which he had received from one Handly' (68 Cal. at page 286, 9 P. at page 173) that the plaintiff had sold Handly a lottery ticket and was engaged in the business of selling lottery tickets applied to a justice of the peace and obtained a search warrant. In holding that the warrant ans not invalid, the court said, the 68 Cal. at page 287, 9 P. at page 174. It is not altogether clear from the reported decision whether the facts stated in the supported affidavit were expressed positively or in terms of the information and belief of the affiant but that does not seem significant in ...
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