Williams v. Justice Court, Oroville Judicial Dist., Butte County

Citation230 Cal.App.2d 87,40 Cal.Rptr. 724
CourtCalifornia Court of Appeals
Decision Date08 October 1964
PartiesRalph H. WILLIAMS et al., Petitioners and Appellants, v. The JUSTICE COURT, OROVILLE JUDICIAL DISTRICT, COUNTY OF BUTTE, State of California, Respondent. Civ. 10806.

Albert M. King, Oroville, Ralph Irby White, San Francisco, for appellants.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., by Doris H. Maier, Asst. Atty. Gen., by Edward A. Haiz, Jr., and Anthony S. DaVigo, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Appellants are nine individuals who either owned pinball machines, operated restaurants or taverns in which the machines were kept or were employed in these establishments. On March 25, 1963, law enforcement officers in Butte County filed affidavits with respondent justice court, seeking search warrants to permit entry into these establishments and seizure of the machines. The search warrants were signed and issued, then executed by the police, who took the machines into custody. Seven of the nine appellants filed applications in the justice court seeking to have the search warrants set aside and the machines returned to them. Copies of these applications were served on the Butte County district attorney and a hearing held on June 3, 1963, before the magistrate in the justice court. No evidence was offered or taken at this hearing. The magistrate denied the applications the same day.

Appellants then instituted the present mandate proceeding in the superior court. The superior court record reveals no evidence, oral or documentary, other than copies of the search warrants, of the affidavits on which they were issued and of papers indicating the institution of criminal proceedings against appellants. The latter now appeal from denial of the mandate petition.

Appellants' opening brief consists of a running argument which ignores the requirement that their appeal contentions be separately stated under appropriate headings. (Rule 15, California Rules of Court.) Our analysis reveals the following contentions:

(1) The affidavits on which the search warrants were issued failed to demonstrate probable cause for believing that the machines were being used in the commission of a crime; thus the warrants violated Penal Code section 1525, and the seizure violated constitutional bans on unreasonable searches and seizures, depriving appellants of privacy and property without due process of law. 1

(2) Due process was denied and Penal Code section 1539 violated by the magistrate's failure to take evidence and make factual determinations in the proceeding for restoration of the seized machines. 2

(3) The warrants were defective in permitting police retention of the pinball machines and violated statutory directions for bringing the seized property before the magistrate. 3

(4) The affidavits and warrants were void for failure to name or describe the person to be searched. 4

(5) Some of the machines were operated within the City of Oroville, others in unincorporated territory. As to the former, there is a contention that the City of Oroville had previously licensed the machines under a municipal ordinance and is now estopped to maintain a criminal prosecution.

Typical of the affidavits serving as basis for issuance of the search warrants is the following:

'Benjamin Jimenez, being first duly sworn, deposes and says:

'That on or about the 25th day of March, 1963, in the City of Oroville County of Butte, State of California, the crime of violation of Sections 330 and 330(b), California Penal Code, to wit: possession of multiple-coin operated pinball machines, and carrying-on of prohibited gambling transactions was committed by persons in control of premises hereinafter described in the manner following, to wit: possession of said illegal machines, and pay-off in money or its equivalent to persons using or playing said machines.

'That affiant has, and there is, just, probable and reasonable cause to believe, and he does believe, that there are now in the possession of (not applicable) and in and upon the premises known and designated as and commonly called Sandwich Wagon, 3114 Palermo Road, Oroville, Calif. in the said County of Butte, State of California, including all rooms and buildings used in connection with said premises and adjoining the same, certain articles, items and property in the possession of persons with intent to use it as a means of committing a public offense, to wit: violation of P.C. 330 and 330(b) as hereinabove indicated.

'That the said articles and property are described particularly as follows, to wit: multiple-coin operated pinball machines, and a small container or box containing paper slips which have recorded thereon numbers and writing relating to pay-offs made in gambling transactions involving said machines.

'That the following facts establish the existence of grounds for the issuance of a search warrant for the search of the person of said (not applicable), for the search of the said premises and building, and, further, establish probable cause for believing that said grounds exist: investigation by police officers and agents has disclosed the existence and location of said machines and their use in the transactions indicated above.

'Wherefore affiant prays that a search warrant issue commanding that an immediate search be made of the person of the said (the applicable) and the premises and building described herein for the articles and property above described and that the same be brought before a magistrate and disposed of according to law.' 5

The affidavits signed by Benjamin Jimenez identify him only by name, but the search warrants identify him as a sergeant in the sheriff's office of Butte County. Other affidavits were signed by Robert Phippen, identified on the search warrants as captain and acting chief of police of the Oroville Police Department. While the affidavits describe the pinball machines by the phrase 'multiple-coin operated,' the warrants use that phrase and the additional description 'multi-play.'

For our purpose it is necessary only to summarize the Penal Code provisions mentioned in the affidavits. Section 330 is the general gaming statute, prohibiting participation in certain games described by name or in 'any banking or percentage game played with cards, dice, or any device, * * *.' Penal Code section 330b, subdivision (1), prohibits possession or keeping of any 'slot machine or device, as hereinafter defined, * * *.' Subdivision (2) of that section defines the forbidden article as one 'adapted, * * * for use in such a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, such machine * * * is caused to operate or may be operated, and by reason of any element of hazard or change or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, * * * or right to use such slot machine or device, * * *.' Subdivision (4) of section 330b expressly excepts 'pin ball, and other amusement machines or devices which are predominantly games of skill, * * *.'

We reach the question whether the affidavits on their face demonstrate probable cause for a belief that the seized machines were being used as a means of committing a public offense denounced by the Penal Code.

Probable Cause

Section 1525 of the Penal Code (fn. 1, supra) is a statutory expression of constitutional requirements that warrants be issued only upon a sworn statement of probable cause. (U.S.Const. 4th Amend.; Cal.Const. art. I, sec. 19.) The concept of probable cause for a search warrant is approximately the same as that which justifies an arrest without a warrant or the filing of a felony accusation: "* * * such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (Perry v. Superior Court, 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 5, 368 P.2d 529, 533; People v. Aday, 226 A.C.A. 634, 645-647, 38 Cal.Rptr. 199; People v. Perez, 189 Cal.App.2d 526, 532, 11 Cal.Rptr. 456.) In measuring sufficiency of a search warrant affidavit, the magistrate--as well as a court reviewing his determination--does not decide whether the offense was in fact committed, but only whether the person making the affidavit had reasonable grounds to believe that the law was being violated on the premises to be searched. (Arata v. Superior Court, 153 Cal.App.2d 767, 773, 315 P.2d 473.) The magistrate's action in issuing a search warrant is an ex parte decision that probable cause has been shown. (Aday v. Superior Court, 55 Cal.2d 789, 799, 13 Cal.Rptr. 415, 362 P.2d 47.) Immediately following the seizure, the owner or claimant may challenge sufficiency of the affidavit on its face by controverting the warrant under Penal Code sections 1539 and 1540 (fn. 2, supra). In that proceeding he may also challenge the truth of the affidavit, for example, by evidence aimed to show that the seized article is not contraband. (People v. Keener, 55 Cal.2d 714, 719, 12 Cal.Rptr. 859, 361 P.2d 587; Aday v. Superior Court, supra, 55 Cal.2d at pp. 799-800, 13 Cal.Rptr. 415, 362 P.2d 47; Dunn v. Municipal Court, 220 Cal.App.2d 858, 866-867, 34 Cal.Rptr. 251.) He may seek an extraordinary writ such as mandamus to secure return of the property when the magistrate has erroneously denied the relief sought under sections 1539 and 1540. (Aday v. Superior Court, supra, 55 Cal.2d at pp. 799-800, 13 Cal.Rptr. 415, 362 P.2d 47; Dunn v. Municipal Court, supra, 220 Cal.App.2d at p. 867, 34 Cal.Rptr. 251.)

Appellants did avail themselves of the opportunity provided by sections 1539 and 1540 to attack sufficiency of the affidavits on their face. The magistrate then denied relief. Sufficiency of the averments of probable cause is appropriately at issue in this...

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