People v. Gershenhorn
| Decision Date | 24 February 1964 |
| Docket Number | Cr. 9605 |
| Citation | 225 Cal.App.2d 122,37 Cal.Rptr. 176 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Sol GERSHENHORN, Defendant and Appellant. |
David H. Caplow and Maurice Rose, Los Angeles, for defendant and appellant.
Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.
Since the People do not here contest either the factual or conclusional allegations of appellant, we accept the facts as stated in appellant's declaration filed in the court below.
Appellant was arrested and his business premises searched by officers of the Los Angeles Police Department, without a warrant and without reasonable grounds to believe him guilty of any criminal offense. As a result of the arrest and search, the officers seized certain business records and personal property of appellant, none of which was 'contraband' as that term is used in connection with proceedings such as are herein involved. Appellant was admitted to bail and thereafter released from custody for lack of the filing of a criminal complaint. We infer from the documents before us that he was thereafter indicted by the Grand Jury for some offense 1 and that proceedings under that indictment are still pending.
Appellant moved in the superior court for an order suppressing the evidence secured as a result of the above search and seizure and for return of the property so seized. The motion was denied and defendant appealed from that portion of the order which denied the return of the seized property to defendant. The Attorney General has moved to dismiss the appeal as being from a non-appealable order.
A person whose property has been seized unlawfully by a law enforcement agency is afforded a variety of remedies, one or more of which he may pursue, depending on the specific result he desires and his counsel's decision as to tactics and strategy:
(1) He may move, before trial, to suppress the evidence as was done here. If that motion be denied, or even if no such motion had been made, he may object to the introduction of the evidence either at the preliminary examination or at the trial. If objection is made and overruled at the preliminary examination, he may review that action by a motion made under section 995 of the Penal Code. If unsuccessful there, he may seek relief in this court by way of a Writ of Prohibition. (Pen.Code, § 999a.) If still unsuccessful, he may renew his objection at the trial and, if then overruled, may raise the point on appeal from a judgment of conviction, if that should result. Under these circumstances, a denial of a pretrial motion to suppress is clearly interlocutory. Not only is the original ruling still open to re-examination in the ways just outlined but, since the sole purpose of a motion to suppress is to avoid a conviction of crime, the matter may well become moot. The evidence, even if not suppressed, may never be offered at a criminal trial or, even if offered and received, no conviction may take place. In no sense, then, is the original order denying suppression final nor independently appealable. No doubt it was with these considerations in mind that defendant limited his present appeal to that portion of the order which refused to return the seized property to him.
(2) However, 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, 2 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. But such a motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction. (People...
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People v. Sanchez
...and subsequent amendment of Penal Code, section 1538.5 have not sufficiently dealt with the problems exposed in People v. Gershenhorn, 225 Cal.App.2d 122, 124, 37 Cal.Rptr. 176. In fact, to some extent the problems have been aggravated by the disparate function of the superior court in hear......
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People v. Superior Court
...26 Cal.App.3d 884, 897, 103 Cal.Rptr. 354; Williams v. Justice Court, 230 Cal.App.2d 87, 94, 40 Cal.Rptr. 724; People v. Gershenhorn, 225 Cal.App.2d 122, 126, 37 Cal.Rptr. 176; Aday v. Municipal Court, 210 Cal.App.2d 229, 249, 26 Cal.Rptr. 576 (mandate); see People v. Gershenhorn, Supra; Mo......
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Flack v. Municipal Court for Anaheim-Fullerton JudicialDist. of Orange County
...and speedy remedy for the recovery of their film. Neither logic nor precedent impels us to this conclusion. In People v. Gershenhorn (1964) 225 Cal.App.2d 122, 37 Cal.Rptr. 176 (hearing denied,) the defendant was arrested for bookmaking at his place of business and evidence was seized incid......
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People v. Laiwa
...of evidence obtained by a warrantless search and seizure: i.e., a nonstatutory motion to suppress (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 124, 37 Cal.Rptr. 176) and a statutory motion to set aside the accusatory pleading (§ 995) on the ground that it rested entirely on evidence ob......