Steele v. Superior Court of California, 11573.

• Decision Date: 08 January 1948
• Docket Number: No. 11573.,11573.
• Citation: 164 F.2d 781
• Parties: STEELE v. SUPERIOR COURT OF CALIFORNIA, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F.2d 781 (1947)

STEELE v. SUPERIOR COURT OF CALIFORNIA, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.

No. 11573.

Circuit Court of Appeals, Ninth Circuit.

December 8, 1947.

As Amended on Denial of Rehearing January 8, 1948.

Leo R. Friedman, of San Francisco, Cal., for appellant.

Fred N. Howser, Atty. Gen., and Clarence A. Linn, Deputy Atty. Gen., for appellees.

Before DENMAN, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

By information filed in the Superior Court of the City and County of San Francisco, appellant was charged with a violation of § 337a of the Penal Code of the State of California, a statute defining as a crime acts commonly referred to as bookmaking and pool selling and providing punishment for the violation thereof. Upon arraignment in the state court appellant entered a plea of not guilty and thereafter filed with said state court a petition for removal of the cause to the United States District Court for the Northern District of the State of California, claiming to come within the provisions of § 31 of the Judicial Code, 28 U.S.C.A. § 74¹, and performed the acts required by said statute to effectuate a removal in the event that right existed.

The grounds for removal, as alleged in the petition, are to the effect that "a police officer of the City and County of San Francisco, without any warrant, writ or other process of any kind or character, and without the consent of appellant, forcibly broke into an apartment occupied by complainant appellant at his home and dwelling, in the City and County of San Francisco and, against the wish, will and consent of appellant, took certain particularly described papers, documents and writings, in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States, and in violation of the right of complainant to be secure in his house, papers and effects against unreasonable search and seizure."

The petition further alleged that complainant (appellant) filed in the state court a motion to set aside the information on the ground that the evidence used at the preliminary hearing had been unlawfully obtained by means of the unlawful search and seizure hereinbefore detailed. The motion was denied; thereafter appellant again moved the state court for an order directing the return of the unlawfully seized evidence. This motion was also denied.

The petition goes on to allege that the evidence procured in the alleged unlawful manner will be introduced against appellant at the trial in the state court; that no proceeding exists in California whereby evidence may be suppressed on motion and that under the practice sanctioned by the courts of California evidence secured by unlawful search and seizure may be used in the trial; that the sole method available in California for the return of unlawfully seized property is a civil action.

Appellant filed in the said United States District Court for the Northern District of California a bill of complaint in equity for an injunction restraining the appellees from proceeding with the case against defendant on the ground that jurisdiction was in the United States District Court pursuant to the removal proceedings hereinbefore referred to.

The United States District Court granted a motion made by appellees to dismiss the complaint.

The United States District Court was of the opinion that the allegations contained in appellant's petition for removal were insufficient to bring his case within the provisions of 28 U.S.C.A. § 74. We agree. We fail to find in said petition allegations sustaining appellant's contention that he has been denied "any right secured to him by any law providing for the equal civil rights of citizens of the United States".

The burden of appellant's argument deals with the question of rights guaranteed him by the Fourteenth Amendment to the Constitution of the United States which will be denied him by the use of evidence illegally obtained at the trial of his case. We think the question thus posed deals exclusively with the admissibility of evidence and state procedure. The courts of California...