People v. Berger

• Decision Date: 27 April 1955
• Citation: 282 P.2d 509,44 Cal.2d 459
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred BERGER, Defendant and Appellant. Crim. 5664.

Page 509

282 P.2d 509

44 Cal.2d 459

The PEOPLE of the State of California, Plaintiff and Respondent, v.Alfred BERGER, Defendant and Appellant.

Crim. 5664.

Supreme Court of California, In Bank.

April 27, 1955.

Rehearing Denied May 25, 1955.

Morris M. Grupp, San Francisco, for appellant.Charles R. Garry, Norman Leonard, George Olshausen and Leo R. Friedmand, San Francisco, as Amici Curiae on behalf of appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., San Francisco, (City and County of San Francisco), William B. Acton and Irving F. Reichert, Jr., Asst. Dist. Attys., San Francisco, for respondent.

TRAYNOR, Justice.

Defendant was indicted for conspiracy to commit grand an petty theft and conspiracy to solicit for charitable purposes without a permit.Pen.Code, § 182;San Francisco Police Code, § 590.He appeals from the judgment of conviction entered on a jury verdict finding him guilty on both counts and from the order denying his motions for new trial and in arrest of judgment.

Defendant employed several solicitors to obtain money for a publicity campaign for blood donations for wounded members of the armed services.Introducing themselves as representatives of patriotic and veterans organizations, the solicitors telephoned thirty to fifty persons a day and asked for money to print newspaper advertisements, open a blood collection center, sponsor radio and television shows, buy blood, and provide cab fare for blood donors.In response to these calls, contributions totalling over $65,000 were made to defendant.He kept for his own use most of the money received.

On March 12, 1952, members of the San Francisco Police Department and the District Attorney's Office entered defendant's place of business, identified themselves, and showed the office manager a search warrant.She asked them to wait for defendant, but the investigator from the District Attorney's Office replied, 'Well, while we are waiting here there is no use wasting the time, we will just start looking into things and getting them ready to take what we want.'For five hours the investigator, the police and an assistant district attorney ransacked defendant's files, desks, and wastebaskets.The investigator testified: 'We were looking around for evidence of the commission of the alleged crime * * * anything that showed the commission of the crime charged.'They read letters, cards, and records, and, according to the investigator, seized 'thousands; tens of thousands' of cards, letters, files, and other documents 'that seemed relevant to the commission of the crime.'Over defendant's protests, they loaded the seized papers on a van and took them to the District Attorney's Office.

Upon the return of the warrant to the Municipal Court that issued it (seePen.Code, § 1537), the court entered an order that the District Attorney could retain the seized property as evidence.Defendant contended that the warrant was void and made a motion to quash it.The motion was denied, and defendant then petitioned the Superior Court for a writ of mandamus directing the Municipal Court to return the seized property.In hearings on the motion the District Attorney and defendant's counsel thoroughly argued the question of the validity of the warrant and the legality of the search and seizure pursuant to it.The warrant placed no restrictions on the area to be searched or the things to be seized and was strikingly similar to the general warrant authorizing unlimited searches and seizures that was condemned when the right of privacy first received legal protection.SeeHuckle v. Money, 2 Wills K.B. 206, 207, 95 Eng.Rep. 768, 769(1763);Entick v. Carrington, 19 Howell's State Trials 1029(1765);Lasson, The History and Development of the Fourth Amendment to the United States Constitution, pp. 43-50.The court held that the warrant was void and that the search and seizure pursuant to it were illegal and entered a judgment quashing the warrant and ordering defendant's property returned to him.No appeal was taken and the judgment became final.The District Attorney returned the seized papers to defendant, but during the proceedings, and unknown to either the court or defendant, he had been making photostats of them.As soon as defendant learned of the photostats, he petitioned the Superior Court for a writ of mandamus directing their delivery to him.Although the record does not disclose the result of this proceeding, counsel agreed at oral argument that the court announced from the bench that it would deny the writ and asked that findings of fact and a formal judgment be prepared.Neither defendant nor the prosecution, however, prepared findings or a judgment, and no judgment was entered.At defendant's trial, the District Attorney offered the photostats in evidence to show the nature and extent of defendant's operations.Defendant's objections to their admission on the ground that they had been obtained by a flagrant abuse of the judicial process and in violation of his right to be secure against unreasonable searches and seizures were overruled.

Although findings of fact may not be necessary to support a denial of a petition for a writ of mandamus, seeCarpenter v. Pacific Mutual Life Ins. Co., 10 Cal.2d 307, 328, 74 P.2d 761;Brownell v. Superior Court, 157 Cal. 703, 709, 109 P. 91;Matter of Danford, 157 Cal. 425, 430, 108 P. 322;In re Adoption of Pitcher, 103 Cal.App.2d 859, 864, 230 P.2d 449, the entry of a judgment is necessary to make it a final decision effectual for any purpose.Berri v. Superior Court, 43 Cal.2d 856, 279 P.2d 8;Phillips v. Phillips, 41 Cal.2d 869, 874, 264 P.2d 926;Southern Pac. R. Co. v. Willett, 216 Cal. 387, 390, 14 P.2d 526;Brownell v. Superior Court, 157 Cal. 703, 708, 109 P. 91;Crim v. Kessing, 89 Cal. 478, 489, 26 P. 1074;seeState Board of Equalization of State of California v. Superior Court, 20 Cal.2d 467, 475, 127 P.2d 4.Thus, the second mandamus proceeding, not having been terminated by entry of a judgment, has no effect on the judgment in the first mandamus proceeding, and that judgment therefore stands as a binding determination that the warrant was void, that the search was illegal, and that defendant's papers were unlawfully seized.SeeDillard v. McKnight, 34 Cal.2d 209, 214, 209 P.2d 387, 11 A.L.R.2d 835;Krier v. Krier, 28 Cal.2d 841, 843, 172 P.2d 681;Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892;Steele v. United States, No. 2, 267 U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761;State ex rel. Campo v. Osborn, 126 Conn. 214, 218, 10 A.2d 687;State ex rel. Warren v. City of Miami, 153 Fla. 644, 649, 15 So.2d 449;People ex rel. Barclay v. West Chicago Park Com'rs, 308 Ill.App. 622, 629, 32 N.E.2d 323.

Since the photostats are as much a product of the illegal search and seizure and are as tainted by it as the original papers themselves, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319, the deception practiced by the prosecution in this case cannot circumvent the rule adopted in People v. Cahan, Cal., 282 P.2d 905.

The Attorney General contends, however, that the objection made by defendant at the time the photostats were offered in evidence came too late.He argues that if illegally seized evidence is to be excluded, the defendant should be required to present his objections in advance of trial by a motion to suppress.A preliminary motion of this kind was required by the United States Supreme Court when it announced the rule excluding illegally obtained evidence, Weeks v. United States, 232 U.S. 383, 396, 34 S.Ct. 341, 58 L.Ed. 652;seeSegurola v. United States, 275 U.S. 106, 111-112, 48 S.Ct. 77, 72 L.Ed. 186, ¹ and it has been justified on the ground that it avoids the necessity of interrupting the trial to determine the collateral issue of the admissibility of the evidence.If the motion was denied, however, the trial court was required to consider de novo an objection to introduction of the evidence at the trial, Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct. 261, 65 L.Ed. 647;Amos v. United States, 255 U.S. 313, 316, 41 S.Ct. 266, 65 L.Ed. 654, and since the defendant was thus afforded two opportunities to litigate the issue of whether the evidence was admissible, the objective of avoiding an unnecessary interruption of the trial was largely defeated.Moreover, appellate review of the decision on the motion might be sought by either the prosecution or the defendant, seeEssgee Co. of China v. United States, 262 U.S. 151, 152, 43 S.Ct. 514, 67 L.Ed. 917;United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416, even though defendant could raise the question again on appeal from the final judgment against him.In recent years therefore, the federal courts have modified the requirement by allowing the trial court to entertain the motion for the first time at the trial.Fed.Rules Crim.Proc. Rule 41(e),18 U.S.C.A.;Panzich v. United States, 9 Cir., 285 F. 871, 872;United States v. Leiser, D.C., 16 F.R.D. 199, 200;United States v. Johnson, D.C., 76 F.Supp. 538, 542;SeeUnited States v. Asendio, 3 Cir., 171 F.2d 122, 125, and by affording appellate review in most cases² only on appeal from a final judgment of conviction.Cogen v. United States, 278 U.S. 221, 224, 49 S.Ct. 118,...