Gershenhorn v. Superior Court, Los Angeles County

• Decision Date: 20 May 1964
• Citation: Gershenhorn v. Superior Court, Los Angeles County, 227 Cal.App.2d 361, 38 Cal.Rptr. 576 (Cal. App. 1964)
• Parties: Sol GERSHENHORN, Petitioner, v. SUPERIOR COURT, LOS ANGELES COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 28163.
• Court: California Court of Appeals

Page 576

38 Cal.Rptr. 576

227 Cal.App.2d 361

Sol GERSHENHORN, Petitioner, v. SUPERIOR COURT, LOS ANGELES COUNTY, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 28163.

District Court of Appeal, Second District, Division 4, California.

May 20, 1964.

Rehearing Denied June 5, 1964.

Hearing Denied July 15, 1964.

David Caplow and Maurice Rose, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Donald K. Byrne and John J. Collins, Deputy County Counsels, for respondent.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Harry B. Sondheim, and Bart Goldman, Deputy Dist. Attys., for real party in interest.

KINGSLEY, Justice.

Alleging that his property had been seized as an incident to an illegal search, seizure and arrest, Petitioner moved in Respondent Court for an order directing its return. The motion having been denied, he sought to appeal. We dismissed his appeal, on the ground that the order of denial was not an appealable order. (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 37 Cal.Rptr. 176.)* In dismissing the appeal, we said:

'Appellant is not, however, without remedy. Since the order is not otherwise reviewable, a discretionary review by Writ of Mandate from this court is available.' (People v. Gershenhorn (1964) supra, 225 Cal.App.2d 122, 126, 37 Cal.Rptr. 176, 178.)**

Subsequently, Petitioner brought the present petition. In his petition he again alleged the illegality of his arrest without a warrant and the illegality of the attendant search and seizure. He alleged, also, that his motion for the return of his property was denied by Respondent Court on the ground that it lacked jurisdiction to entertain such a motion and not on the merits of his contentions. On these allegations, we issued our Order to Show Cause why a Writ of Mandate to compel a hearing on the merits should not issue and stayed any criminal proceedings in Respondent Court pending our decision on the petition.

By return, Respondent Court, and the People as Real Party in Interest, for the first time, set forth their version of the matter. The return alleges facts which, it is claimed, show that Petitioner's arrest, and the attendant search and seizure, were made on probable cause to suspect Petitioner guilty of the offense of bookmaking, and that the property seized, while not contraband in the sense of being property possession of which is illegal per se, were records of his criminal activity and, thus, legitimate objects of seizure for use in his prosecution. The return also reports that Petitioner stands indicted by the Grand Jury of Los Angeles County and that some, at least, of the property which is the subject of his motion was introduced as evidence before the Grand Jury.

Respondent Court, and the Real Party in Interest, ask us to re-examine the question of the existence of a motion such as was made by Petitioner. Real Party in Interest also contends that Respondent Court, in ruling on the motion, had before it the facts above set forth and that its denial should be regarded as having been made on the merits as an alternative ground.

I

Our review of the proceedings before the trial court, discussed in detail below, convinces us that its action was based on what we hold to have been a mistaken view of its jurisdiction.

In ruling on the appealability of the order herein involved, we said:

'* * * one whose property is illegally seized may desire not only to prevent its use against him in a criminal case, but also to procure its return. In that case, he may, either as an alternative to, or in conjunction with, a motion to suppress, move for its return as was done here. If the property was seized under a void warrant, or if it was not the property described in a warrant, such a motion is expressly authorized by section 1540 of the Penal Code. If the property was illegally seized without a warrant, the courts have allowed a similar motion.' (People v. Gershenhorn (1964) supra, 225 Cal.App.2d 122, 125, 37 Cal.Rptr. 176, 177.)***

As we have above indicated, hearing in that matter was denied by the Supreme Court and the above decision has become the law of the case.

II

Even if the matter were not thus concluded in the instant cause, we would adhere to the statement just quoted. The existence of such a motion is plainly recognized in People v. Mayen (1922) 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383; and in People v. Wren (1922) 59 Cal.App. 116, 210 P. 60. There is nothing to the contrary in People v. Berger (1955) 44 Cal.2d 459, 282 P.2d 509, which, given its widest interpretation, held only that the illegality of a search and seizure may be raised for the first time at the trial and need not be the subject of a pretrial motion; the case did not deny the existence of the pretrial procedure, if desired.

The People argue that a motion to return will operate to delay criminal proceedings and that other remedies are available if the physical return of property is important.

The motion herein involved causes no more delay than does the statutory motion under section 1540, nor than does the motion under Penal Code, section 995, with its review under section 999a. To say that a citizen has a prompt and simple remedy for the return of his property when a warrant was involved, but no such remedy where a warrant is neither sought nor used, is to reverse the constitutional order of importance and would induce law enforcement officers to dispense with, rather than to use, the orderly procedure which the Constitution clearly prescribes.

The alternatives suggested hardly are equal either in expedition or in adequacy. The People point to sections 1417-1419 of the Penal Code. Not only can relief be had under those sections only after trial and affirmance on appeal, but they apply only to items received in evidence--and thus are inapplicable to illegally seized property which could not be so introduced.

The People suggest, also, that an action in claim and delivery or in conversion offers an adequate alternative. But an action for conversion gives only damages, not a return in specie. And the expense and complications of bonds and other procedures involved in claim and delivery seem an unnecessary apparatus to recover property which, as we shall show, is already in the hands of the court.

III

The People also argue that, in a proceeding under section 1540, the property, having been taken under color of the court's own warrant, is held by the levying officer on behalf of the court and is, thus, under the immediate control of the court. But, they argue, property seized without a warrant is not so held on behalf of the court and, thus, is not subject to an order made in a summary proceeding. We think the argument without merit. In the present case, it appears from the return that most (and possibly all) of the property involved was offered in evidence before the Grand Jury and is, therefore, presently in the possession of Respondent Court or its officers and agencies.

But even as to property not yet offered or received in evidence we think that judicial control still exists. We are not now concerned with a private seizure, by a private individual, for some purpose of his own. We deal with property seized by a public officer, acting under the color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it. He must respond, as does any custodian, to the orders of the court for...