People v. Marion

• Decision Date: 13 December 1961
• Docket Number: Cr. 3927
• Citation: 197 Cal.App.2d 835,18 Cal.Rptr. 219
• Parties: PEOPLE, Plaintiff and Respondent, v. Martin Luther MARION, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 219

18 Cal.Rptr. 219

197 Cal.App.2d 835

PEOPLE, Plaintiff and Respondent, v. Martin Luther MARION, Defendant and Appellant.

Cr. 3927.

District Court of Appeal, First District, Division 2, California.

Dec. 13, 1961.

Rehearing Denied Jan. 12, 1962.

Hearing Denied Feb. 7, 1962.

Philip R. Anderlini, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny and Albert W. Harris, Jr., Deputy Attys. Gen., for respondent.

SHOEMAKER, Justice.

Defendant, charged with violating section 10851 (formerly § 503) of the Vehicle Code and three prior convictions of felony, admitted the priors and was found guilty as charged after trial by the court. defendant appeals from the judgment and the order denying him a new trial.

The evidence reveals that in November of 1959, the John W. Reed Company owned a Baker fork lift truck with two distinguishing features--a special tow bar and dual front wheels. The vehicle, which was customarily kept parked at the Southern Pacific Beale Street track in San Francisco, was taken from this site sometime between November 20 and November 23, 1959. On the morning of July 13, 1960, police officer Barr and two witnesses who were familiar with the truck's special characteristics stood outside of defendant's warehouse and peeked under the door. The witnesses identified the truck as the one belonging to the Reed company. Officer Barr then obtained a search warrant, entered defendant's warehouse on the evening of July 13, and recovered the missing fork truck. Defendant was arrested in Portland, Oregon, on July 14, 1960, and subsequently confessed to taking the fork truck.

Appellant's first contention is that the affidavit executed by Officer Barr in support of the search warrant was based upon information gathered at a prior illegal search of the premises and that the evidence obtained pursuant to the warrant was thus inadmissible since illegally obtained. The affidavit described two items of property which were allegedly in appellant's warehouse as 'one fork-lift truck, Baker make, Model FGF' and 'one White truck transmission, serial number 18051.' It also stated 'That the above described property has been identified to me by the owners thereof, and I have personally seen the property on the premises, which are locked and no persons are in or about the aforesaid premises.' At the time of the search had under the warrant, the above described fork truck was found on the premises, but there was no White truck transmission with a serial number of 18051.

Appellant alleges that a White truck transmission with this serial number was in his warehouse from July 3 to July 11, 1960, and that his warehouse was broken into during this period of time. It is appellant's contention that the police officers could only have obtained the serial number 18051 by breaking into his warehouse between July 3 and July 11, and that the evidence thus conclusively establishes that the search warrant was illegally obtained.

Officer Barr testified that on the morning of July 13, 1960, prior to obtaining the search warrant, he looked under the door of appellant's warehouse and saw what appeared to be a truck transmission. He further testified that a week prior to July 13, he had received an offense report stating that a truck transmission with the serial number 18051 had been stolen. When he looked under the door, he thought he saw a truck transmission, although he was unable to read the serial number. In signing the affidavit in support of the search warrant, he therefore described the truck transmission he thought he had seen in appellant's warehouse and supplied the serial number from the report he had previously received. When he subsequently entered the warehouse, pursuant to the warrant, he discovered that the object he had identified as a truck transmission was actually a truck dolly. Officer Barr testified that the end of a truck dolly looks very similar to a truck transmission. He denied that he had ever been inside appellant's warehouse prior to July 13, 1960.

On cross-examination Officer Barr admitted that serial number 18051 did not appear anywhere in the theft report, but stated that he must have gotten it from the White Motor Company people. He testified that although he did not personally take the number down himself, he had gone with Mr. Cole to see the people at the White Motor Company. Mr. Cole had taken down the number and given it to Officer Barr.

Mr. Cole, when cross-examined, stated that he had not supplied Officer Barr with any serial numbers. Mr. Cole was also unable to find serial number 18051 in his reports.

The evidence offered by appellant, when coupled with the fact that the police officers were unable to explain just where they obtained the serial number, certainly gives rise to an inference that the police could have obtained serial number 18051 through a prior illegal search of appellant's premises. However, Officer Barr specifically testified that he had never entered appellant's warehouse prior to July 13, 1960. Since there was a conflict in the evidence, the trial court was entitled to weigh and believe any or all of the testimony of Officer Barr and conclude that the search warrant had been obtained without the benefit of any illegally obtained information.

Appellant contends, however, that even if it be deemed that there was no prior illegal entry, there was no probable cause to authorize the issuance of the warrant and the evidence procured thereby was inadmissible. Appellant refers to the statement in the affidavit in support of the search warrant that the owners of the fork truck and the White transmission identified these items to Officer Barr and that he personally saw them on the premises. Appellant argues that these averments were false and, therefore, the warrant was not issued on probable cause.

The rule is well established that the issuance of a search warrant is a judicial act and that the only review of such an act is that sanctioned by sections 1539 and 1540 of the Penal Code. (See People v. Lepur (1959) 175 Cal.App.2d 798, 802, 346 P.2d 914; People v. Thornton (1958) 161 Cal.App.2d 718, 721, 327 P.2d 161; Arata v. Superior Court (1957) 153 Cal.App.2d 767, 769-770, 315 P.2d 473.) In the Arata case, the court stated, at pages 769-770, 315 P.2d at page 475: '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' * * *.

'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. * * *

'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...