Dunn v. Municipal Court, Eureka Judicial Dist.

• Decision Date: 07 October 1963
• Citation: 34 Cal.Rptr. 251,220 Cal.App.2d 858
• Parties: James DUNN, Plaintiff and Appellant, v. MUNICIPAL COURT, EUREKA JUDICIAL DISTRICT, Defendant and Respondent. Civ. 20534.
• Court: California Court of Appeals Court of Appeals

Page 251

34 Cal.Rptr. 251

220 Cal.App.2d 858

James DUNN, Plaintiff and Appellant, v. MUNICIPAL COURT, EUREKA JUDICIAL DISTRICT, Defendant and Respondent.

Civ. 20534.

District Court of Appeal, First District, Division 1, California.

Oct. 7, 1963.

Hearing Denied Dec. 4, 1963.

Hill & Dalton, Eureka, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Harry W. Low, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Petitioner, James Dunn, appeals from an order denying his application for a writ of mandamus directing the municipal court to quash a search warrant on the ground that it was invalidly issued. ¹

Question Presented

Was the affidavit upon which the search warrant was based sufficient? We have concluded that this question must be answered in the negative.

Statement of the Case

The petition for a writ of mandate alleges, substantially, as follows: That petitioner has been accused in the municipal court of a violation of section 3081 of the Fish and Game Code; that on or about the 18th day of December, 1961, one A. F. James made an affidavit for the issuance of a search warrant; that said affidavit states as follows: 'On the 18th day of December 1961, personally appeared before me WARDEN A. F. JAMES who being duly sworn, under oath makes complaint and deposes and says that he has and there is just, probable and reasonable cause to believe, and that he does believe and states on the following grounds, that there is now in the possession of illegal deer meat and/or elk meat [sic] at and in the premises situated at 3860 F Street, Eureka (Description of location of premises to be searched) which consist of house, garage and all out-buildings (Description of premises; i. e. house, outbuildings, barns, vehicles) in the City/Town/Township of Eureka, Judicial District of Eureka, County of Humboldt, State of California, the following personal property, to wit: deer or elk meat illegally possessed. That your affiant is a deputized law enforcement officer of the Wildlife Protection Branch of the California Department of Fish and Game; That your affiant believes, and so states, that the said person in possession thereof intends to use said property as a means of committing a public offense and holds and retains said property for the purpose of concealing it or preventing its being discovered; that possession of the said property is a violation of (Section--of Title 14 of the California Administrative Code and) Section 3081 of the California Fish and Game Code, a misdemeanor, to wit: possession of unstamped deer or elk or parts thereof. That your affiant bases his belief upon the following information/personal observation: I have the sellar [sic] of the deer and elk meat sold to James Dunn and part of this meat should be at the residence of James Dunn'; ² that upon reading said affidavit the Judge of the Eureka Judicial District issued a search warrant; ³ that, thereafter, petitioner made a motion in the said municipal court to quash the warrant, and for an order directing the return of any items seized under and by virtue of the warrant; ⁴ that the municipal court denied said motion; that no appeal lies from the order of said municipal court; that petitioner has no adequate remedy at law; and that petitioner will be forced to stand trial and risks being convicted upon evidence which has been obtained in violation of the Constitution of the State of California and the provisions of the Penal Code applicable to search warrants.

An order to show cause was issued by the court below to the municipal court ordering it to show cause why a wirt of mandamus should not issue directing it to issue its order quashing the search warrant. The matter thereafter came before the trial court for argument, no return to the petition having been filed by respondent, ⁵ and thereupon the court denied the peremptory writ. ⁶

It is clear from the trial court's order denying relief, and the briefs of the parties, that the petition was considered upon the basis of whether it stated facts sufficient to warrant the granting of the relief sought as a matter of law. This, as indicated by the trial court's conclusions recited in its said order, was addressed essentially to the sufficiency of James' affidavit. ⁷ Accordingly, the trial court concluded that that affidavit was sufficient, as a matter of law, to support the issuance of the search warrant. This determination is attacked on appeal by petitioner, who makes the following contentions: (1) That the affidavit is inadequate to authorize a search of the premises at 3860 F Street, Eureka; (2) the property to be seized is not particularly described; (3) the affidavit does not show probable cause; and (4) the facts shown do not legally justify the issuance of a warrant.

Before proceeding to the consideration of petitioner's contentions, it should be noted that it has been held that where a search seeks to attack the truth and the defendant seeks to attack the truth of the statements in the supporting affidavit, he must proceed under sections 1539 and 1540 of the Penal Code, ⁸ 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. ⁹ (People v. Keener, 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587; 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.) It should also be noted that section 1466, 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. (People v. Keener, supra, 55 Cal.2d p. 720, 12 Cal.Rptr. p. 862, 361 P.2d p. 590.) Where, the defendant does apply to the magistrate for relief under sections 1539 and 1540, however, he may seek an extraordinary writ, such as mandamus or prohibition, as a means of obtaining relief from an erroneous decision upon proceedings under sections 1539 and 1540. (People v. Keener, supra, 55 Cal.2d p. 720, 12 Cal.Rptr. p. 862, 361 P.2d p. 590.)

Although petitioner's motion in the municipal court was broad enough to encompass the grounds for relief set forth in sections 1539 and 1540, he did not elect to so proceed; that is, he did not control vert the facts stated in the affidavit upon which the search warrant was based. Moreovr, no testimony was taken as provided in section 1539. Accordingly, petitioner is now precluded from challenging the facts set forth in the supporting affidavit. (People v. Marion, 197 Cal.App.2d 835, 839, 18 Cal.Rptr. 219; People v. Prieto, 191 Cal.App.2d 62, 66, 12 Cal.Rptr. 577.) Petitioner is not, however, precluded from a review of the decision of the municipal court confined to a reading of the affidavit and determining therefrom its sufficiency as a matter of law. (Arata v. Superior Court, 153 Cal.App.2d 767, 770, 315 P.2d 473; People v. Perez, 189 Cal.App.2d 526, 531-532, 11 Cal.Rptr. 456.) This is precisely what petitioner asked the court below to do, and is what he is asking us to review. The problem here presented, then is the sufficiency of the affidavit on its face. The denial of the motion to quash by the municipal court was clearly upon a question of law going to the sufficiency of the affidavit. No appeal lying from such a denial, the extraordinary writ, as in the review of proceedings arising under sections 1539 and 1540, is appropriate. (People v. Keener, supra; see Aday v. Superior Court of Alameda County, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47; and see Arata v. Superior Court, supra (prohibition).)

Aside from the contention that the property to be searched was not particularly described in the affidavit or the warrant, the other contentions made by petitioner relate to whether there was probable cause for the issuance of the warrant. ¹⁰ Before discussing the question of probable cause we shall dispose of the contention made relative to the description of the property to be searched.

The Description of the Property to be Searched

The statutory reference is to the property sought to be made the object of the search. (People v. Mayen, 188 Cal. 237, 242, 205 P. 435, 24 A.L.R. 1383; Atlas Finance Corp. v. Kenny, 68 Cal.App.2d 504, 514, 157 P.2d 401.) The requirement of the code that the property be particularly described is met if the property is described with "reasonable particularity." (People v. Mayen, supra, 188 Cal. page 242, 205 P. page 437; and see Aday v. Superior Court, supra, 55 Cal.2d p. 796, 13 Cal.Rptr. p. 419, 362 P.2d p. 51.) In the instant case the property was described as 'illegal deer meat and/or elk meat'; 'deer or elk meat illegally possessed'; and 'unstamped deer or elk or parts thereof.' This description was adequate. We fail to see how it could be more particularly described. As aptly observed by the trial judge, deer or elk meat does not have 'serial numbers or brand names.' The words 'illegal,' 'illegally possessed,' and 'unstamped' neither add to nor detract from the particularity of the description although they may have some bearing on the question of probable cause. In Keener, the property was described as 'stolen typewriters, adding machines, and guns. * * *' (55 Cal.2d p. 717, 12 Cal.Rptr. p. 852, 361 P.2d p. 588.) We find no intimation in Keener that such description was not adequate. To the contrary, the Supreme Court therein noted that the property to be seized was particularly described in the warrant and its supporting affidavit.

Probable Cause

A warrant must be issued by a magistrate (§ 1523) if he is satisfied from the affidavit or affidavits 'of the existence of the grounds of the application, or that there is probable cause to believe their existence * * *.' (§ 1528.) The issuance of a warrant is a judicial act based on facts found by...