People v. Peterson

• Decision Date: 07 April 1965
• Docket Number: Cr. 9772
• Citation: 233 Cal.App.2d 481,43 Cal.Rptr. 457
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charlene PETERSON and Dewey Wilson, Defendants and Appellants.

Page 457

43 Cal.Rptr. 457

233 Cal.App.2d 481

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charlene PETERSON and Dewey Wilson, Defendants and Appellants.

Cr. 9772.

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

April 7, 1965.

Rehearing Denied April 27, 1965.

Hearing Denied June 2, 1965.

George L. Vaughn, Jr., Los Angeles, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Justice.

Defendants appeal from the judgments of conviction entered against them following a jury trial in which they were charged with the crime of possessing heroin for purposes of sale in violation of section 11500.5 of the Health and Safety Code.

Both appellants assign as error, requiring reversal of the judgments, the failure and refusal of the courts below to permit them to controvert the facts relied upon by the prosecution to justify the issuance of the search warrant used to obtain the incriminating evidence which was used against them. ¹ We have concluded that this contention is meritorious.

The evidence bearing upon this issue may be summarized as follows: On May 31, 1963, officers of the Los Angeles Police Department obtained a search warrant from Municipal Court Judge James D. Tante authorizing them to search the person of the appellant Charlene Peterson as well as her residence and automobile, each of which was specifically identified therein.

Officer James Grennan of the Los Angeles Police Department testified that on June 8, 1963, in executing this warrant, appellant Peterson's residence was placed under surveillance. This officer further testified that when appellant Peterson was seen to leave the house and drive off in a different vehicle she was immediately pursued and overtaken. It would seem clear from this testimony that her actions at this point were evasive in nature and provided a valid basis for the inference which the prosecution relied upon in the court below as constituting a sufficient justification for immediately placing her under arrest and searching the automobile which she was driving, although it was not the one described in their warrant. A large quantity of narcotics was found therein.

We need not pass upon this question, however, for clearly it is irrelevant to the issue raised by appellants, namely, were they erroneously denied their right to challenge the propriety of the issuance of the warrant itself? It is unmistakably clear from the record that the officers' sole purpose in pursuing, overtaking and restraining appellant Peterson at this particular time and place was their entirely proper determination to execute the search warrant theretofore issued. Whatever occurrences developed during the fulfillment of this proper objective obviously had no bearing upon the question of the correctness of the issuance of the warrant itself.

This factual aspect of the case is made even more apparent by the testimony of Officer Grennan's partner, Officer John Hanks. He testified that when he reached the position where appellant Peterson stopped her car '* * * Sergeant Grennan's vehicle was alongside the defendant's vehicle, and they were both stopped. Sergeant Grennan was alighting from the car.' The following questions and answers were then recorded:

'Q. And what was the next thing that occurred? A. I had a very brief conversation with Sergeant Grennan, at which time myself and the two officer[s] in the vehicle with me proceeded to the address at 240 West 113th Street. Q. When you got to--excuse me--when you got to that address, at 240 West 113th Street, what was it that you did then? A. Entered the residence. Q. And was that pursuant to the search warrant you had? A. Yes, sir.'

Officer Hanks testified that upon entering the residence he met the appellant Wilson who was unknown to him at that time. The officer showed Wilson the search warrant and then proceeded to search the premises. Further large quantities of heroin were discovered.

It is therefore indisputable that the question whether any of the contraband should have been received in evidence against appellants could only be answered by an appropriate resolution of their challenge to the validity of the search warrant theretofore issued. Their attempt to obtain such a determination was effectively blocked in every proceeding below by means of a series of circuitous procedural objections.

The applicable rules governing the issuance of search warrants and subsequent challenges thereto were spelled out at length in People v. Keener, 55 Cal.2d 714, 719 et seq., 12 Cal.Rptr. 859, 861, 361 P.2d 587, 589, a case arising by way of an appeal by the People from the order of the superior court, setting aside an information upon motion made under section 995 of the Penal Code. It was therein stated:

'A search warrant may be issued by a magistrate only upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property to be seized and the place to be searched. Cal.Const. art. I, § 19; Pen.Code §§ 1523, 1525. If the magistrate is satisfied of the existence of the grounds for the application or that there is probable cause to believe their existence, he must issue the warrant to a peace officer commending him to search the person and place named for the property specified. Pen.Code, § 1528. After the search the officer executing the warrant must return it to the magistrate with a written inventory verified by affidavit. Pen.Code, § 1537. Sections 1539 and 1540 of the Penal Code provide that, where the grounds for issuance of the warrant are controverted, a hearing shall be held and that, if it is found that there is no probable cause for believing the grounds on which the warrant was issued, the magistrate must restore the property to the person from whom it was taken.

'The People take the position that the refusal of the magistrate to quash the search warrant was conclusive as to the validity of the warrant and, therefore, that the evidence obtained by the search was properly admitted at the preliminary hearing. It has been held that where a search warrant is valid on its face and the defendant seeks to attack the truth of statements in the supporting affidavit, he must proceed under sections 1539 and 1540 of the Penal Code 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. 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; People v. Nelson, 171 Cal.App.2d 356, 360, 340 P.2d 718; People v. Phillips, 163 Cal.App.2d 541, 545, 329 P.2d 621; People v. Thornton, 161 Cal.App.2d 718, 721-722, 327 P.2d 161; Arata v. Superior Court, 153 Cal.App.2d 767, 769-775, 315 P.2d 473. As we have seen, however, the defendants involved in this case did apply to the magistrate for relief; their motion to quash the warrant for lack of probable cause, while not specifically asking for return of the seized property, was broad enough to include the grounds for relief set forth in sections 1539 and 1540; and during the hearing upon that motion they requested the name of the informant.

'The ruling of the magistrate in denying the motion to quash should not be treated as final and conclusive with respect to defendants' right to attack the warrant for lack of probable cause. Section 1466 of the Penal Code, 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, nor does any other provision allow such an appeal, and, under the general rule, an order is not appealable unless declared to be so by the Constitution or by statute. People v. Valenti, 49 Cal.2d 199, 204 et seq., 316 P.2d 633; cf. Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137; Weiss v. Garofalo, 89 Cal.App.2d 811, 201 P.2d 845; see 3 Witkin, California Procedure (1954), p. 2150. A defendant's failure to seek an extraordinary writ such as mandamus or prohibition, where available, as a means of obtaining relief from an erroneous decision upon proceedings under sections 1539 and 1540 likewise should not be deemed a waiver of his right to attack the warrant for lack of probable cause when the prosecution at the preliminary hearing seeks to introduce evidence discovered upon the asserted illegal search. Defendants, prior to the preliminary hearing, did all that could reasonably be expected of them to preserve their rights, and, under these circumstances, the adverse ruling upon the motion to quash the warrant did not preclude them from subsequently raising at the preliminary hearing their claim that the warrant was defective.'

In the instant case, appellants' counsel first mistakenly sought to challenge the grounds upon which the search warrant had issued at the time of their preliminary hearing. This effort was met by the following objection: 'Mr. Yanz: [Deputy District Attorney] Objection, Your Honor, this is again beyond the scope of the direct, and the probable cause. Again, we were relying on the two named informants, rather than the two unnamed informants, and the time to attack the search warrant is before the Municipal Court Judge who issued the search warrant, not in this court. THE COURT: Objection sustained.' (Emphasis added.)

We may assume that in making this ruling, the magistrate had in mind the following rule: 'The only review of such a judicial act [the issuance of a search warrant] that is specifically provided by law is the review sanctioned by sections 1539 and 1540 of the Penal Code.' (Arata v. Superior Court, 153 Cal.App.2d 767, 770, 315 P.2d 473, 475.) That is, assuming that the...