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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward M. BUTLER and Peggy Butler, Defendant and Appellant.

Cr. 9410.

Decided: November 15, 1965

Alto I. Leib, Los Angeles, for defendants and appellants. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William L. Zessar, Deputy Atty. Gen., for plaintiff and respondent.

Defendants appeal from the judgment entered following a nonjury trial which resulted in their conviction of the crime of possessing marijuana in violation of section 11530 of the Health and Safety Code.

No contention is raised regarding the sufficiency of the evidence to sustain the judgment. Appellants' primary assignment of error is directed to the refusal of the trial judge, and of the magistrate before whom their preliminary hearing was conducted, to allow appellants to inquire into the verity of the facts stated in the affidavit which had served as the basis for the issuance of the search warrant utilized herein.

On January 25, 1963, Charles Vaughn, a Los Angeles County deputy sheriff assigned to the narcotics detail, obtained a warrant authorizing the search of appellants' residence and automobile. This search warrant was founded upon an affidavit filed by Officer Vaughn in which he averred that a certain confidential informant had supplied him with information regarding incidents indicative of narcotic traffic upon the premises. Officer Vaughn and several fellow officers executed the warrant at 11:30 p. m. on the date it was issued and discovered the various items of contraband which led to appellants' arrest and subsequent conviction.

Appellants argue that since the affidavit in support of the search warrant was sufficient upon its face, and since, under the rule enunciated in People v. Keener, 55 Cal.2d 714, 12 Cal.Rptr. 859, 361 P.2d 587, it was not possible for them to learn the identity of the informant, it appeared pointless to them prior to the preliminary hearing to challenge the grounds upon which the warrant had issued in the manner provided by sections 1539–1540 of the Penal Code.

However, in the course of his direct examination during the preliminary hearing, Officer Lesnick, another deputy sheriff assigned to the narcotics detail who had participated in the execution of the search warrant, testified that appellants' residence had been under surveillance for two weeks prior to the date the search warrant had been sought and obtained. He further testified that before effecting entry into the living quarters of the residence at 11:30 p. m. on January 25, 1963, he had ‘climbed under the house’ itself. He stated that from this vantage point he was able to see1 and hear certain of the activities of the persons within the house and that at 11:25 p. m. he had detected the odor of burning marijuana. Thereupon, he and his fellow officers promptly moved to enforce the search warrant by smashing in the door of the premises and placing the occupants under arrest.

Because of the unusually effective method adopted by the officers in timing so accurately their forced entry into the living quarters of the residence, appellants' counsel was led to ask Officer Lesnick whether he had been under the house previously during the two-week period in which they had conducted the surveillance of the premises. The officer replied that he had been under the building on four occasions prior to the date the warrant was obtained and that he had heard and reported the conversations of the occupants thereof. He further testified that Officer Vaughn, who had prepared the affidavit in support of the search, had accompanied him on certain of these occasions.

Later, after Officer Vaughn had testified concerning his part in effecting appellants' arrest on the night of January 25, 1963, he was cross-examined as follows: ‘Q. How many times had you been under this building during the two weeks prior to January 25th? A. I would say three or five times. Q. And you had heard conversations between persons who were occupying that building, is that correct? A. Yes, sir. Q. During these times that you were there, this was without a search warrant, is that correct, prior to January 25th? A. That is correct. * * * Q. Had you obtained the consent of any of the people whom you believed to be occupants or owners of the building to enter under the building prior to January 25th? A. No, sir. * * * Q. Now, sir, you are the one who made the application to Judge Farley for the search warrant, is that correct? A. Yes, sir. Q. And you made that application on the basis of the information you had obtained while underneath the premises at 1788 Orange Grove on those three or four occasions prior to January 25th, si that correct? Mr. Courtney [Deputy District Attorney]: Just a minute, Officer. I will object to the question. Apparently Counsel is trying to go behind the search warrant and this is not the proper procedure for it. I will object to the question on those grounds, Your Honor.’

Before ruling on the objection, the committing magistrate solicited assistance from counsel, stating that he had not conducted preliminary hearings in some time. The responsive statements made by the deputy district attorney as to the applicable law were erroneous in several very material particulars. Following further unreported discussion in chambers, the objection was sustained. Such ruling was clearly erroneous.

‘It is, of course, settled that if the conduct of the officers in entering or searching was unlawful, the search warrant subsequently obtained based on their observation in the apartment was invalid. [Citations.]’ (People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721.) In People v. Carswell, 51 Cal.2d 602, 606–607, 335 P.2d 99, 102, the Supreme Court stated as follows:

‘Defendant contends that the trial court should have excluded the testimony relating to the seizure of nine of the stolen guns found in his room. At both trials it appeared that police officers, acting without a search warrant, entered defendant's room after the burglary and saw the guns. On the basis of their observations, they obtained a search warrant pursuant to which the guns were later seized. Because the warrant was obtained as a direct result of the officers' previous observations in defendant's room, it was valid only if their first entry was lawful. The burden of establishing its legality was on the prosecution. [Citations.]’ (Emphasis added.) (Also see, People v. Carswell, 149 Cal.App.2d 395, 397, 308 P.2d 852.)

Of course, in both People v. Carswell, supra, 51 Cal.2d 602, 606–607, 335 P.2d 99, and People v. Roberts, supra, 47 Cal.2d 374, 377, 303 P.2d 721, it was not the verity of the facts stated in the affidavit in support of the warrant that was in issue, per se. That is to say, in these cases the affidavits apparently indicated on their face that the information therein had been acquired by the officers personally as the result of their prior observations and did not purport to have been received from an unnamed and confidential informant. Nevertheless, it appears clear that appellants in both cases might have, and perhaps should have, challenged the propriety of the search warrants in 1539–1540 proceedings rather than at the time of trial. However, in neither case does it appear that such attack, in fact, had been made or that our Supreme Court deemed the making of such attack an indispensable prerequisite to raising the issue at the time of trial in the factual situations there presented.

The holdings in Carswell and Roberts might possibly be explained as mere extensions of the rule that an affidavit filed in support of a search warrant may be challenged as to its sufficiency on its face even though no 1539–1540 hearing has been conducted. However, any such attempted rationalization of these decisions would create a distinction more apparent than real. That is to say, in both of these cases it was apparent that the sufficiency of the affidavit could be determined only by conducting a hearing on the factual events leading to the officers' acquisition of the information set forth in the affidavit. Obviously, such determinative facts were not to be found on the face of the affidavits themselves.

Where a hearing must be allowed to permit a defendant to test the sufficiency and legality of the foundational basis for the issuance of a search warrant, such hearing should be sought with reasonable timeliness, and, if possible, it should be sought from the magistrate who issued the warrant rather than from the committing magistrate at the time of the preliminary hearing, or from the trial judge at the time of trial. This is the hearing expressly authorized by section 1539 of the Penal Code and its utilization at an early stage in the proceedings should avoid the potentially needless redundancy and expense inherent in delayed hearings on the subject. (People v. Peterson, 233 A.C.A. 605, 620, 43 Cal.Rptr. 457.) Section 1539 provides:

‘If the grounds on which the warrant was issued be controverted, he [the issuing magistrate] must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated in the manner prescribed in Section 869.’ (Emphasis added.)

That hearings equivalent to 1539–1540 hearings were held in the course of the trials in both the Roberts and Carswell cases is unmistakable from the fact that the validity of the search warrant in each case was not determined merely by an examination of the contents of the supporting affidavits. The determinations therein made were predicated upon a consideration of the testimony of the officers introduced at the trials in the superior court.

In fact, the warrant and its supporting affidavit had been held to be insufficient to justify the search and seizure conducted in the Carswell case following the first hearing thereon (People v. Carswell, supra, 149 Cal.App.2d 395, 397–402, 308 P.2d 852), but were upheld following the introduction of further testimony at the second trial. (People v. Carswell, supra, 51 Cal.2d 602, 606–608, 335 P.2d 99.)

We conclude, therefore, that the results obtaining in Roberts and Carswell are not unique and peculiar exceptions to the general rules relating to the propriety of early 1539–1540 hearings but rather are indicative of the basic legal principle that substance rather than mere procedural form should govern the protection of fundamental rights.

In People v. Peterson, supra, 233 A.C.A. at pages 612, 618, 43 Cal.Rptr. 457, it was a mistake on the part of defense counsel which resulted in the attack on the warrant being attempted for the first time at the preliminary hearing. In the instant case, no such error was involved. Appellants' counsel was properly satisfied with the validity of the warrant and its supporting affidavit prior to the preliminary hearing, for he could not reasonably have been expected to anticipate the disclosure that the officers may have been clandestinely trespassing under defendants' home on the several occasions prior to the issuance of the warrant. When such fact became known during the preliminary hearing, the defense had every right to examine fully into the matter in order to determine whether or not the facts stated in the affidavit actually had been received from an informant whose identity could not safely be revealed or whether any or all of these facts were the fruits of the prior illegal trespasses which may have been committed by the officers.

In this particular, the language of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, quoted in People v. Douglas, 61 Cal.2d 430, 434, 38 Cal.Rptr. 884, 887, 392 P.2d 964, 967, is apposite: “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”

When the potential violation of appellants' constitutional rights became known, the committing magistrate should have adopted one of the three possible procedures referred to in People v. Peterson, supra, 233 A.C.A. at p. 620, 43 Cal.Rptr. 457, i. e., he should have allowed appellants ‘to elect whether to proceeds, expressly waiving the right to [a 1539–1540] hearing, or to agree that the committing magistrate might himself conduct the 1539–1540 hearing rather than the issuing magistrate, or to agree to a suitable continuance of the preliminary hearing for the purpose of allowing the issuing magistrate to conduct such a hearing.’

Appellants subsequently protected their right to complain of this error on the part of the committing magistrate at their trial and on their appeal from the judgment by making a timely motion to set aside the information by reason of such error under section 995 of the Penal Code. (People v. Elliot, 54 Cal.2d 498, 502–503, 6 Cal.Rptr. 753, 354 P.2d 225; People v. Gershenhorn, 225 Cal.App.2d 122, 124, 37 Cal.Rptr. 176; People v. Dewson, 150 Cal.App.2d 119, 125, 310 P.2d 162.)

However, do not hold that the mere failure of the magistrate presiding at the preliminary hearing to adopt one of the alternative methods of procedure suggested in Peterson would necessarily require reversal of the subsequent judgment, because, as we indicated therein, the appellants were entitled to seek their 1539–1540 hearing before the issuing magistrate after the preliminary hearing. Similarly, the ruling of the magistrate in denying appellants' motion under section 995 would not ordinarily require a reversal, for appellants' right to a 1539–1540 hearing would still be available if sought within a reasonable time prior to trial.

In the instant case, appellants did not seek a 1539–1540 hearing at any time. However, we are cognizant of the fact that prior to the decision in Peterson, the attorney general's interpretation of People v. Keener, supra, 55 Cal.2d 714, 719, 12 Cal.Rptr. 859, 361 P.2d 587, which we rejected therein, appears to have been accepted and followed by many defense counsel, magistrates and prosecutors. That is, it seems to have been quite generally assumed that if a 1539–1540 hearing was not sought and obtained prior to the holding of the preliminary hearing, the right thereto was irrevocably lost. It is certainly clear in the instant case that appellants' counsel and the trial judge believed such a rule existed.

At the commencement of the trial, after waiving a jury trial and before the receipt of any evidence, appellants' counsel moved the court to conduct a hearing to inquire into the validity of the search and seizure made herein. In requesting such a hearing, he expressly indicated that he had accepted the then prevalent, but mistakenly restrictive, view regarding the exclusiveness of the 1539–1540 hearing and the time within which such a hearing might be sought. The trial judge with equal clarity also expressed his acceptance of this view and stated that regardless of his own inclinations in the matter, he deemed himself powerless to act. Therefore, he refused to permit appellants to inquire as to the validity of the search and seizure and declined to personally and privately conduct an examination of the officers on the subject.

These rulings, based upon the mistaken assumption that the right to any hearing had been irrevocably lost when the 1539–1540 hearing had not been sought prior to the preliminary hearing, were erroneous. As stated in Peterson, 233 A.C.A. pp. 620–621, 43 Cal.Rptr. 457, the trial court could have, and should have, conducted such a hearing itself.

It is clear that appellants' failure to seek a 1539–1540 hearing after the preliminary hearing but prior to trial was not the result of any intention either to engage in dilatory tactics or to waive their right to make such a challenge. This failure was due solely to their acceptance of the generally prevailing, albeit erroneous, view that such a hearing was no longer available to them.

We do not regard the decision in Peterson as one which actually changed or overruled any authoritatively established rule of law. As we indicated therein at page 619, 43 Cal.Rptr. at page 465, we merely rejected ‘the strict enforcement of an ‘order of procedure’ whose origin is nowhere to be found in statute or case law.'

However, we recognize that pragmatically viewed, the rejection of a generally accepted but unsound rule of procedure may be the practical equivalent, in certain instances, of the overruling of an established rule. Therefore, in cases such as the instant one, which were tried prior to the decision in Peterson but which are not final, a mistaken reliance upon the prevailing rule should not foreclose a defendant from seeking relief by direct appeal. (Cf. People v. Hillery, 62 A.C. 726, 745, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Kitchens, 46 Cal.2d 260, 262–263, 294 P.2d 17; People v. Nigri, 232 A.C.A. 419, 420–422, 42 Cal.Rptr. 679.)

In cases tried after the decision in Peterson, a defendant's failure to seek a 1539–1540 hearing after a preliminary hearing but before the scheduled trial date might authorize a trial judge in appropriate cases to regard such a motion made after the commencement of trial as untimely. But in the instant case we cannot regard the failure of appellants' counsel to perform what he reasonably believed would be an idle act as constituting an intentional waiver of appellants' rights to a hearing on the validity of the warrant utilized herein. The trial court should have conducted an examination into the legality of the search and seizure here in question.

Respondent offers the suggestion that the search and seizure in the instant case might be deemed permissible even in the absence of the search warrant. Such contention, however, is entirely devoid of merit. California, we believe correctly, has adhered to a liberal view regarding the permissible observations which police officers may make with propriety upon premises surrounding a citizen's home. (Cf. People v. Shields, 232 A.C.A. 857, 860–862, 43 Cal.Rptr. 188, and cases cited.) California law does not, however, authorize clandestine observations of the personal affairs of its citizens to be conducted beneath their very feet following illegal trespasses underneath their private homes.

Following the forced entry of the officers into the living quarters of the residence in execution of the warrant on January 25, 1963, the officers inquired of the various persons found therein as to their identities and their connection with the premises. Certain of these inquiries produced answers which directly or indirectly tended to establish appellants' knowing possession of the contraband found on the premises. It is urged that these answers should not have been received into evidence under the rule enunciated in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

From the record before us it would appear that all of the questions and answers reportedly made on the premises were properly received in evidence. (People v. Stewart, 62 Cal.2d 571, 578–579, 43 Cal.Rptr. 201, 400 P.2d 97; United States v. Konigsberg, 3 Cir., 336 F.2d 844, 853.) However, since the cases must be retried and the initial trial was held prior to the Dorado decision, the record quite naturally is rather vague and indefinite as it relates to these issues. We, therefore, refrain from expressing any opinion as to the rulings that may be indicated by prevailing law at the time of any new trial.

The judgment is reversed.


1.  The visual observations were made through the cracks between the slats that formed the floor of appellants' porch.

HERNDON, Justice.

ROTH, P. J., and FLEMING, J., concur.