BOWYER v. SUPERIOR COURT OF SANTA CRUZ COUNTY

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Court of Appeal, First District, Division 4, California.

BOWYER et al., Petitioners, v. SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent.

No. 33498.

Decided: February 08, 1974

In conjunction with a petition for rehearing filed by the People, we are informed for the first time that, three weeks after the ‘Petition for Writ of Prohibition and/or Mandate’ was filed in this court and an alternative writ was issued, petitioner Robinson entered a plea of guilty to one of the charges and the charges against the other three petitioners were dismissed. For these reasons, and without our knowledge during consideration of the cause, it has been moot almost from its inception. The Attorney General has not been remiss in informing the court of developments; he was inexplicably uninformed thereof by the district attorney involved.

While a court will not ordinarily consider a cause which is moot, an exception to this rule may apply in certain cases: ‘Where an action concerns an issue of great public interest that is likely to recur, an appellate court may exercise an inherent discretion to resolve the issue even though an event occurring during its pendency might normally render the matter moot. (Citations.)’ (California Medical Assn. v. Brian (1973) 30 Cal.App.3d 637, 650, 106 Cal.Rptr. 555, 563.)

There are indications in the present record that the so-called ‘telephonic search warrant’ procedure has been regularly followed in the County of Santa Cruz, and the 1970 amendment of Penal Code section 1526, subdivision (b) has been interpreted by at least one important authority as having ‘the effect of creating the so-called ‘oral search warrant . . .‘‘ (The Attorney General, Search & Seizure (July, 1972) s 2.15, p. 34.) Our decision invalidates dates a ‘telephonic’ or ‘oral’ search warrant under the circumstances shown, and it will advise the Legislature of our interpretation of its actions, in 1970, wherein it amended section 1526, subdivision (b).

For these reasons, we deem our decision to be within the exception stated above. We therefore permit it to stand, and to be certified for publication (with this addendum) as originally contemplated.

BY THE COURT: