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

Donald Glenn BROWN, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF SAN MATEO, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 52523.

Decided: December 28, 1981

Marvin W. Friedman, Jeffrey B. Neustadt, San Francisco, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Thomas A. Brady, Ann K. Jensen, Deputy Attys. Gen., San Francisco, for respondent.

Petitioner is charged by information with violation of Penal Code section 187 1 (murder) and firearm enhancements (§§ 12022.5, 1203.06(a)(1)(i)).   At the direction of the Supreme Court, this court issued an alternative writ of prohibition to review orders of respondent superior court which denied a motion to dismiss the information made pursuant to section 995, denied a motion to suppress evidence made pursuant to section 1538.5, and denied a nonstatutory motion to dismiss the information for claimed misuse of the grand jury process.

The Facts :

On May 4, 1980, the body of the victim, Patrick McKernan, was recovered from bushes in an area immediately off Highway 101 southbound at Sierra Point curve in Brisbane.   The victim had been dead four days.   Death was caused by multiple gunshot wounds, all in the front of the body.   One of the wounds penetrated the heart and could have caused instant death.   Officer Thomas McLaughlin, a public safety officer employed by the City of Brisbane, was present during the recovery of the body and immediately commenced an investigation.

On May 7, 1980, Officer McLaughlin executed an affidavit in support of a search warrant for petitioner's residence at 178 Sierra Point Road, Brisbane.   In the affidavit in support of the search warrant, Officer McLaughlin averred that he had gained information from talking to Linda McKernan, the estranged wife of the victim, and by talking to Officer Needham regarding his interview with Linda McKernan, that on April 30, 1980 Patrick McKernan was to pick up Linda at a local beauty parlor to take her home, and that when Patrick, a punctual individual, did not arrive, Linda became worried.   On May 1, 2, and 3, Linda checked Patrick's place of work and other places which he frequented, all with negative results.   She then enlisted the aid of her brother Bruce Carantzalis to look for Patrick's missing van.   On May 3, 1980 Linda and Bruce found Patrick's van abandoned at the Levitz' parking lot in South San Francisco.   They drove the van to Millbrae and searched the van for clues to Patrick's disappearance.   Linda's father, Alex Carantzalis, assisted in the search.   In the van were numerous letters indicating Patrick was attempting to extort the sum of $50,000.   Attached to the affidavit was an envelope found in the van addressed to Donald Brown with an address of 180 Tunnel, San Francisco, an address approximately two blocks north of the Brisbane-San Francisco line.   Also found in the van was a handwritten note in Patrick's handwriting giving directions to leave the money at the base of a sign on Highway 101 in Brisbane.   The note attached to the affidavit read:  “Go on US Hwy 101 at 3rd St.   Go south toward SSF.   You will come to a sign Oyster Pt Boulevard next right.   The next sign will be SSF right lane at the base of this sign there will be a bucket put money in․”

Officer McLaughlin also averred that he had personally talked to Bruce and Alex Carantzalis and they had confirmed the facts as stated.   Additionally, they told Officer McLaughlin that on May 4, 1980, continuing their search for the victim, they went to the area described in the note and found the body of Patrick near a “South San Francisco, Right Lane” sign off Highway 101 in Brisbane.   They then caused the Brisbane Police Department to be called, including Officer McLaughlin, who observed the body.   Subsequent investigation revealed that McKernan had been shot four times.

Officer McLaughlin further averred:  “Based on the above evidence, it is my opinion that PATRICK McKERNAN was in the process of blackmailing DONALD BROWN.   Since they found a note in McKERNAN'S van indicating that the drop-point for the money was to be the same area where we eventually found the body, I feel that DONALD BROWN received the correspondence and is responsible for McKERNAN'S death.   Therefore, I am requesting a search warrant to find, among other things, any correspondence that BROWN may have received and can still be in possession of from PATRICK McKERNAN.   Additionally, we will be looking for an automatic pistol that was the murder weapon․”

Officer McLaughlin also requested a search warrant for 180 Tunnel, the address listed on the envelope found in the van, known to be the address of the Browne Construction Company, petitioner's construction company.

The search warrant issued by the magistrate on May 7, 1980, authorized the seizure of “evidence of a blackmail or extortion attempt to include but not limited to extortion correspondence, letters and memos, any letters with San Francisco Police Department letterhead, other correspondence from Patrick McKernan, automatic pistol, ammunition, instruction booklets for automatic pistol, clothes that contain plant vegetation, plus ownership of the premises to include but not limited to deeds, rental agreements, mail and utility bills.”

On May 8, 1980, the search warrant for defendant's residence at 178 Sierra Point Road was executed.   In the course of executing the search warrant, Officer McLaughlin learned for the first time of the existence of a telephone answering device on the premises.   Officer McLaughlin seized two tape cassettes which were in the answering device and six tape cassettes next to the device, a total of eight tape cassettes.   None of the cassettes were labelled.   Officer McLaughlin testified that before the seizure of the tapes he knew of the use of the telephone in connection with the alleged extortion attempt; 2  he seized the cassette tapes because “I felt there was evidence of telephone communications which would relate to a blackmail consent.”   He believed that the seizure of the tape cassettes was reasonable in light of the telephone communication related to him by Linda McKernan.

On May 9, 1980, the following day, Officer McLaughlin began to listen to the tapes and recognized on one of them the voice of petitioner engaged in a telephone conversation with a person by the name of Steve.   Statements made by petitioner in the course of the taped telephone conversation implicated petitioner in the shooting of the victim.

Upon learning of these incriminating events, the police requested that a telephone company expert analyze the touch-tone frequencies on the tape cassette to determine the numbers dialed by petitioner.   After the tapes were analyzed and the numbers supplied by the telephone company expert, the police asked Pacific Telephone Company to provide the listing information for the numbers and thereby learned the identity of Steven Rauch.

On May 16, 1980, petitioner and Rauch were jointly charged with the murder of Patrick McKernan and warrants of arrest were issued.

On December 2, 1980, the preliminary hearing commenced.   Dr. Lack, a duly qualified forensic pathologist, testified to the cause of death, multiple gunshot wounds.

Officer McLaughlin, testified to being present at the recovery of the body on May 4, 1980 and to his conversations with Bruce and Alex Carantzalis at the scene, his conversation the next day with Linda McKernan who told him Patrick was possibly involved in a blackmail plot, his examination of the material found in the van, his preparation of the affidavit in support of the search warrant, his participation in the search and his seizure of the tapes.3

Steven Rauch was called as a prosecution witness.4  Rauch testified that the petitioner had called him on the telephone to ask for his help, that he thereafter met with petitioner, that petitioner asked him to help find out who was trying to blackmail him and showed him extortion notes, that he agreed to transport petitioner in his truck to a predetermined drop-off point on the freeway, that he let petitioner out of his vehicle a “couple of hundred yards” before a turnoff sign indicating South City, that he thereafter continued on and dropped off a paper bag which he assumed contained money at the base of the sign, that he then drove to the top of the hill to wait for the petitioner.   Rauch testified further that petitioner had a gun in his waistband when he exited the vehicle, that petitioner shortly thereafter came up the hill and returned to the vehicle, and that petitioner indicated “that he felt he had shot someone.”   Rauch testified:  “He just told me he had seen a flash of light and had interpreted that as being a gunshot and shot the man because he was worried for his life, or whatever.”

Rauch also testified that after he picked up petitioner, they drove to the home of a friend of petitioner, then returned to petitioner's house.   At petitioner's directions, Rauch and petitioner's stepson Mark returned to the point where the money had been left, retrieved the bag, which contained only paper, and threw it out the window on the way back.   Rauch then advised petitioner to get rid of the weapon.

Rauch further testified that petitioner had told him that two other people were involved, supposedly somewhere around the area, and that they were armed.

At the conclusion of Rauch's testimony, petitioner's counsel moved to strike all the testimony of Rauch as the product of an unlawful search and seizure.

Donald McKernan, brother of the victim, testified that two weeks before the disappearance of Patrick, petitioner had shown him a blackmail letter, that on a Wednesday evening late in April he received a telephone call from petitioner, that petitioner told him that the blackmailer had called him, that petitioner had met him on the freeway and “he—he was deceased or gone, or whatever.”

Donald McKernan further testified that he saw the petitioner the day after that phone call, that petitioner told him the person told him to meet him by the southbound sign on 101, that “when he snuck through the bushes he seen a person crouching down there.   He said, ‘Hey there, what do you want of me?’ ” after which he “seen a flash of light” and returned fire.

Donald McKernan testified that after that conversation he accompanied petitioner down Highway 101, stopped by a southbound sign on the freeway, that petitioner got out of the truck, that McKernan went into the bushes with him until he saw some hair whereupon he got scared and ran back to the truck.   Petitioner returned to the truck and placed a wallet and a gun on the seat between them.   McKernan saw his own family pictures in the wallet and recognized the pistol, a .357, as belonging to his brother Patrick.   Petitioner apologized to him, explaining “It was either me or him.”   McKernan testified that he was a good friend of petitioner, that he told petitioner that “[n]othing is going to bring my brother back” and that he advised petitioner to get rid of the gun and the body.   McKernan also testified that petitioner opened up the cylinder of the gun and pushed out all the shells—one was fired;  five were not.

Linda McKernan testified to her concern for Patrick McKernan during the period he was missing, of finding the extortion materials in the van, of giving them to her father, Alex, who insisted she give them to the police, and of accompanying her father to the Millbrae Police Department, where her father handed the material to the police.   She also testified that Patrick had shown her a similar letter on Monday night and told her that he was going to try to blackmail somebody.

Alex Carantzalis testified that he was looking for guns when he found the notes in a box of papers under the front seat of Patrick's van, that he and Linda took them to the Millbrae police.

Officer Needham testified that he was present when the body was found, that he was present when the search warrant was executed, and that he talked to petitioner in his residence at 178 Sierra Point Road in Brisbane after informing him of his rights.   In the conversation, which began in the utility room and continued in the police car, petitioner admitted that he had received an extortion letter, but petitioner denied any involvement in the crime, stating that he stayed home all night, Wednesday, April 30, and that he was watching television.

Officer Needham also testified that the name “Steve” first came up when petitioner told him that a Steve and other members of his immediate family and friends had a key to the business.   Officer Needham admitted that the seizure of the tape cassettes, the listening to the tapes and subsequent investigation led to the subsequent search and arrest warrants against Steven Rauch and petitioner.   On December 15, 1980 the magistrate denied the motion to suppress and held petitioner to answer.

Motions to Dismiss and Suppress

In his motion to dismiss, petitioner contended that but for the unlawful searches and seizures and the violation of his right to privacy, the police would not have learned the identity of Steven Rauch, and in the absence of the testimony of Rauch, no reasonable or probable cause for the information could have been shown.

In his motion to suppress petitioner contended that the tapes and all evidence obtained by reason of the seizure of the tape cassettes, including the testimony of Steven Rauch, should be suppressed as “fruit of the poisonous tree” under the doctrine of Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

The motions were submitted upon the stipulation of the parties that the preliminary transcript be introduced into evidence, upon certain other stipulations, and upon testimony of petitioner and Officer Needham relating to statements made by petitioner during the execution of the search warrant.   The parties stipulated:  1) that search warrants, sworn by Officer McLaughlin, were issued on May 7, 1980 for the search of petitioner's business premises at 180 Tunnel Road, San Francisco and for his residence at 178 Sierra Road, in Brisbane, and served on May 8, 1980;  2) the only information provided to investigators by Pacific Telephone as a result of its analysis of the touch-tone frequencies of the tape cassettes was a) the number that the touch-tone represented;  b) the name of the subscriber who had that number;  c) the subscriber's address;  further, that the foregoing information was provided by Pacific Telephone without a warrant, subpoena, court order, or any other kind of legal process;  3) the police engaged in no telephone bugging, electronic listening or any kind of eavesdropping on any telephonic communication which was then in transit or then occurring.

In his petition for hearing, petitioner appears to abandon the issue of the inadequacy of the affidavit in support of the search warrant.   We shall therefore not discuss this issue in detail, except to conclude, upon our examination of the affidavit in support of the search warrant, that the affidavit “states facts that make it substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought (People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6, 148 Cal.Rptr. 605, 583 P.2d 130;  see People v. Superior Court (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183), and we turn to petitioner's contention that the seizure of the telephone tape cassettes was neither within the scope of the warrant nor permissible under the nexus rule.

 The general rule that police may seize only those articles enumerated in the warrant is subject to the “plain sight” exception.  People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73, 157 Cal.Rptr. 716, 598 P.2d 877.   Thus, when officers in the course of a bona fide effort to execute a valid search warrant, discover articles, which although not included in the warrant, will aid in a particular apprehension or conviction, they may seize them whether they are initially in plain sight or come into plain sight subsequently as a result of the officers' efforts.  (People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.)

 To prohibit police officers, in the course of a lawful search, from indiscriminately seizing any items whatsoever, the Supreme Court fashioned a rule which accommodates the Fourth Amendment's requirement of specificity and the government's legitimate interest in solving crime:  “There must be a nexus—automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior.   Thus, in the case of ‘mere evidence,’ probable cause must be examined in terms of a cause to believe that the evidence sought will aid in a particular apprehension or conviction.”  (Warden v. Hayden (1966) 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782.)

In Hill, supra, the California Supreme Court held that the “nexus rule” of Warden, applied to a lawful warrantless search, applied with equal force and effect in the context of a search conducted pursuant to a warrant.  “In both situations the same fundamental proposition controls—the scope of a search must be circumscribed by the reasons which justified its inception.   It is by this rational limitation that the Fourth Amendment protects the individual against unfettered discretion.  [Citations].  In short, the ‘nexus rule’ is necessary to achieve ․ a ‘realistic balancing of the requirements of effective law enforcement and the necessity to protect the privacy of the citizen from unwarranted governmental intrusion.’  [Citation].”  (People v. Hill, supra, 12 Cal.3d p. 762, 117 Cal.Rptr. 393, 528 P.2d 1, emphasis added.)

 Under the nexus rule, “police officers who seize an article must be presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred ․ pure speculation ․ will not suffice to establish the requisite nexus.”  (Id., at p. 763, 117 Cal.Rptr. 393, 528 P.2d 1.)

The search warrant for petitioner's residence authorized a search for “evidence of blackmail or extortion attempt to include but not limited to extortion correspondence, letters and memos, any letters with San Francisco Police Department letterhead, other correspondence from Patrick McKernan, automatic pistol, ammunition, instruction booklets for automatic pistol, clothes that contain plant vegetation, plus ownership of the premises to include but not limited to deeds, rental agreements, mail and utility bills.”

The People argue that although the seizure of the tapes was not specifically authorized in the search warrant, the search warrant authorized the seizure of correspondence:  a tape recording is a “writing” within the meaning of the Evidence Code (Evid.Code, § 250;  People v. Patton (1976) 63 Cal.App.3d 211, 133 Cal.Rptr. 533), and in the context of present day technology a tape recording of a telephone conversation is as much within the term “correspondence” as a letter.5

Petitioner relies on People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, for his contention that the seizure of the tapes was not within the scope of the warrant.   In People v. Hill, the search warrant authorized the seizure of the “personal telephone directory of Mrs. Hernandez, all correspondence between Mrs. Hernandez and Gerald Schnabel, Charles Hill and Stephen Smith, and all memoranda concerning possible narcotics dealings with Stephen Smith.”   Four tape recordings were seized on the ground that “they ‘might reveal something.’ ”   The court ordered the tape recordings suppressed, holding that “Mere speculation such as this is insufficient.”  (Id., pp. 762–763, 117 Cal.Rptr. 393, 528 P.2d 1.)

Clearly, the court in Hill did not consider the tape recordings seized in that instance to be included within the scope of the warrant authorizing the seizure of “correspondence.”   However, the nature of the tape recordings seized in Hill was not disclosed and the issue raised by the People in this case was not considered in Hill.   A case is not authority for propositions not there considered.  People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 177, 173 Cal.Rptr. 788.

Assuming, arguendo, that the seizure of the eight telephone tape cassettes was outside the express scope of the search warrant, we nevertheless conclude that the seizure was proper under the “nexus rule.”

Officer McLaughlin testified that during the execution of the search warrant he learned for the first time of the existence of the telephone answering machine, and that he seized the tape cassettes in and adjacent to the machine because “I felt that there was evidence of telephone communications which would relate to a blackmail consent.”   He believed that the seizure of the tape cassettes was within the scope of the warrant and reasonable in light of his investigation, the facts stated in his affidavit, and a telephone conversation previously related to him by Linda McKernan to the effect that she had received a threatening call from the blackmailer over the telephone.6

 The officer who seized the tape cassettes in this instance had been present when the body was recovered and had talked to the witnesses, including Linda McKernan, who had told him the victim may have been involved in an extortion plot and that she had received a threatening phone call from an individual who appeared to be involved in the plot.   The officer had examined the letters and envelopes found in the victim's van and had drafted the affidavit in support of the search warrant.   Thus, the officer had reason to believe that the extortion scheme involved telephone calls as well as letters.   We conclude that in this instance, where the motive for a serious crime such as murder is extortion, and the officer who executed the warrant had conducted an extensive investigation of the case and received information that the parties to the extortion had communicated by telephone, the officer has articulated “specific and articulable facts from which a rational link between the items seized and criminal behavior may be inferred” (People v. Hill, supra, 12 Cal.3d p. 763, 117 Cal.Rptr. 393, 528 P.2d 1) and the seizure of the tape cassettes in and adjacent to the telephone answering device was within the nexus rule.7

Petitioner argues further that even if the telephone cassettes were lawfully seized by the police on May 8, 1980, the police had no authority to listen to the tapes without securing another search warrant.8  In support of his position, petitioner cites Walter v. United States (1980) 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410.

In Walter, 12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities, shipped by private carrier, were mistakenly delivered to the wrong company.   Employees of the wrong company opened each of the packages, finding individual boxes of film, some of which contained explicit descriptions of the contents.   The employees called an FBI agent who picked up the packages.   Thereafter, without making any effort to obtain a warrant or to communicate with the consignee or the consignor of the shipment, FBI agents viewed the films with a projector.

The court held that the fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents.  “Even though the case before us involves no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibit of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy.   It was a search;  there was no warrant;  the owner had not consented;  and there were no exigent circumstances.”  (Id., at p. 654, 100 S.Ct., at 2400.)

The Walter case, in which the “nexus rule” was not invoked, is not applicable under the facts and circumstances of this case.   The court in Walter noted that the projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.  (Id., at p. 657, 100 S.Ct., at 2401.)   Here, unlike Walter, the initial and primary invasion of petitioner's privacy was authorized by a lawful search warrant for the search of petitioner's home.   The discovery of the telephone cassettes, in plain sight, in the course of the execution of the search warrant, was inadvertent, and Officer McLaughlin seized the tape cassettes, which were highly mobile, under the nexus rule, in the reasonable belief that these objects might be evidence of the commission of the crime.  (See United States v. Crouch (4th Cir. 1981) 648 F.2d 932, U.S. cert. den. Oct. 19, 1981, 454 U.S. 952, 102 S.Ct. 491, 70 L.Ed.2d 259.)

People v. Riegler (1980) 111 Cal.App.3d 580, 168 Cal.Rptr. 816, petn. for hg. den., upon which also petitioner also relies, is no longer authority.   On July 2, 1981, the United States Supreme Court granted the petition for certiorari sought by the State of California, vacated the judgment, and remanded the matter to the Court of Appeal, Fifth Appellate District, for further consideration in light of New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768;  (California v. Riegler (1981), 919 U.S. 453, 101 S.Ct. 3153–3154, 69 L.Ed.2d 1001.)

 Since the seizure of the tape cassettes as evidence was constitutionally reasonable, a search of their contents was “reasonably related in scope to the circumstances which justified the interference in the first place.”   Only by listening to the tapes could Officer McLaughlin “confirm or discount his initial, constitutionally reasonable conclusion that [they] had evidentiary value.”  (Guidi v. Superior Court (1973) 10 Cal.3d 1, 18, 109 Cal.Rptr. 684, 513 P.2d 908.)

 An object, having been properly seized in the reasonable belief that such object is itself evidence of the commission of the crime, can also be subjected to scientific examination.  (People v. Rogers (1978) 21 Cal.3d 542, 549, 146 Cal.Rptr. 732, 579 P.2d 1048;  Guidi v. Superior Court, supra, 10 Cal.3d p. 18, fn. 19, 109 Cal.Rptr. 684, 513 P.2d 908;  North v. Superior Court (1972) 8 Cal.3d 301, 306, 104 Cal.Rptr. 833, 502 P.2d 1305;  People v. Teale (1969) 70 Cal.2d 497, 511, 75 Cal.Rptr. 172, 450 P.2d 564.) 9  In the course of the scientific examination of the tapes by the telephone company expert, the numbers dialed were discovered.   The disclosure of the name and address of a subscriber whose number is found in the records of the telephone company to law enforcement as part of its normal and legitimate investigative procedures requires no warrant.  People v. Elder (1976) 63 Cal.App.3d 731, 738, 134 Cal.Rptr. 212.  People v. Blair (1970) 25 Cal.3d 640, 653–654, 159 Cal.Rptr. 818, 602 P.2d 738 and People v. McKunes (1975) 51 Cal.App.3d 487, 124 Cal.Rptr. 126, in which no legal process was employed, are thus inapposite.

In light of our conclusion, we do not reach the argument by the People that the testimony of Steven Rauch was nonetheless admissible under the “inevitable discovery” rule.  (See Lockridge v. Superior Court (1970) 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683;  People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 671–682, 145 Cal.Rptr. 795.)

Petitioner also sought to suppress any statements made by him during the execution of the search warrant on May 8, 1980, as the product of an unlawful detention under the rule of Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824.10

In Dunaway officers who vaguely suspected that Dunaway, a teenager, was involved in a robbery, decided, despite the absence of probable cause, to arrest him.   They located him at a neighbor's residence and asked him to accompany them to the station without informing him that he was free to refuse.   Although he consented to their request, the officers candidly admitted that he would have been physically restrained if he had not cooperated.

An argument similar to that made by petitioner was rejected in People v. Davis (1981) 29 Cal.3d 814, 821–822, 176 Cal.Rptr. 521, 633 P.2d 186.   Defendant in Davis agreed to meet with police who were investigating a rape/murder incident.   They met in a crowded park, which did not suit the police officers who wished to speak to the defendant privately.   They asked defendant if he would be willing to go to the police station for an interview.   Defendant agreed to go and at the station voluntarily spoke with the officers about the incident.   The court distinguished Dunaway on two factual grounds:  1) Dunaway was not free to go, whereas Davis was free to leave if he so desired;  2) Davis offered no proof that he was restrained or threatened with physical restraint, and was not as likely as the suspect in Dunaway to be reasonably convinced that he was deprived of his freedom of action.

In this case, according to petitioner's testimony, petitioner was told by Chief Martini, whom he knew socially, to sit in the living room while the search was conducted.   As the officers fanned out through the house, the Chief told petitioner he had a search warrant for petitioner's business address at 180 Tunnel Avenue and that petitioner could stay there or go to the other address;  petitioner told him he would rather stay at the house, and the Chief left.   Petitioner testified that he stayed in the living room until Officer Needham asked him to come downstairs, that he consented, that he had a conversation with Officer Needham in the utility room, that the conversation continued in a police car outside the house;  thereafter he accompanied Officer Needham to the police station.   Petitioner testified that during the occurrence of the foregoing events, he did not feel free to leave, but he admitted that Officer Needham had assured him that he was not under arrest.

Officer Needham testified that he served a copy of the search warrant upon petitioner at his residence and explained to him that the officers were looking for evidence involving murder and blackmail;  that he told petitioner that because of the officer's concern for their safety and the destruction of evidence, petitioner could not wander about the house without an escort, but that petitioner was free to go to the Tunnel Road address where the other search warrant was being served simultaneously, if he chose.   Part way into the search, Officer Needham asked petitioner if there was a place inside the house where they could talk away from his family;  petitioner said downstairs would be a good place.   Officer Needham testified that he gave petitioner the Miranda warning before he initiated the conversation with petitioner in the family room, where the bulk of the conversation took place;  that as the search party reached that room, he asked petitioner if he minded going out to the police car where they could have privacy;  petitioner said “Sure.”

At the close of the conversation in the police car, Officer Needham asked petitioner if there was anything he wanted to say.   Petitioner said he wanted to leave to go back East to see his mother.   Officer Needham said he could do so.   Petitioner also told Officer Needham about $33,000 in the garage;  he didn't want the policemen inside the garage to steal it.   Officer Needham asked him if he'd mind pointing it out;  petitioner walked to the garage, got a little stepladder, opened a little cover in the ceiling, reached inside and pulled out a packet of money, which Needham counted and placed with the other evidence in the trunk of his car.   Petitioner was vehement about the taking of the money, worried that he would not get it back, and questioned the authority of the officer to seize it.   Officer Needham advised him that he would have to take up the matter of the return of the money with the Chief.   Officer Needham testified that petitioner's purpose in going to the station, six to eight blocks distant, was to pursue the release of the $33,000 with the Chief.   Petitioner later made a second trip to the police station in his own vehicle to pick up the keys for his business at 180 Tunnel.

 In a proceeding under section 1538.5 to suppress evidence, the power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences is vested in the trial court.   On review all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.  People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.   Here, the only restrictions on petitioner's freedom to leave were, as respondent court correctly found, understandable and necessary to the safety of the searching officers and the preservation of evidence during the lawful search of petitioner's house.   Petitioner suggested the utility room as a place where he and Officer Needham could have privacy, and petitioner readily agreed to move to the police car when the search party moved into the downstairs area.   Petitioner moved freely from the police car to the garage where he pointed out the location of the money.   Nothing indicates anything involuntary about petitioner's trip to the police station.   The evidence shows that petitioner had a good reason to go to the police station—a desire to recover a sizeable sum of money confiscated by the police during the course of the search.   Petitioner returned to the police station in his own vehicle later the same night to pick up a set of keys.   Petitioner had no reason to believe that the officers intended to place him in custody, and petitioner was in fact permitted to leave the State of California:  his arrest occurred some time later when he was picked up in the State of Maine.

Motion to Dismiss for Misuse of Grand Jury Process

Petitioner claims that the prosecution abused the grand jury process by subpoenaing five prospective witnesses to appear before the grand jury for the purpose of preparing an already pending indictment for trial.   The People counter that the investigation by the police has continued and has never ceased since the victim was reported as a missing person, that substantial evidence is still missing, and that the facts of the underlying offense bespeak the involvement of persons other than petitioner;  under such circumstances, the grand jury investigation may not be limited.

By statute, the grand jury may inquire into all public offenses committed or triable within the county (§ 917),11 and the attendance of witnesses whose testimony, in the opinion of the district attorney, is material in an investigation before the grand jury, may be required by subpoena (§ 939.2).12

The record shows that an information was filed against petitioner on December 26, 1980.   The grand jury was convened on March 3, 1981, and again on April 30, 1981.   Five witnesses were required to appear pursuant to section 939.2, after immunity had been granted to them under the provisions of section 939.3.13

 Neither petitioner nor the People have presented any California authority on the subject, and both parties rely on federal cases in support of their respective positions.   Although this court is not bound by decisions of the lower federal courts, even on federal questions;  in the absence of controlling state precedent, they are persuasive and of great weight.   (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.)   We have concluded that In re Grand Jury Proceedings (9th Cir. 1978) 586 F.2d 724, is dispositive on this point.

In that case, the appellant made the charge that the grand jury was being abused by the government to help develop evidence for pending cases in which indictments had already been returned.   In its opinion rejecting the claim, the court ruled as follows:  “This charge, easily voiced, is difficult to prove or disprove.   In the case at bar the government denies the assertion and the appellants have supplied no evidence to support their supposition.   The trial court found no evidence of an improper purpose, and this court has rejected the need for imagining one after the government denies it.  In re Grand Jury Proceedings (Hergenroeder), 555 F.2d 686 (9th Cir. 1977).  [¶]  There is no legal basis for barring a grand jury investigation simply because there is an outstanding indictment involving persons not being called as witnesses.  In re Santiago, 533 F.2d 727 (1st Cir. 1976).   There is also no bar to investigation of other areas of criminal liability for which the defendants or co-defendants may be accountable.  In re July 1973 Grand Jury, 374 F.Supp. 1334 (N.D.Ill., 1973).   Indeed, the duties of the grand jury are not performed until every clue and all witnesses are examined in order to charge the proper person with the appropriate crime.  United States v. Collins, 272 F.2d 650 (2d Cir. 1959).  [¶]  While it may be improper to call a grand jury witness solely to prepare a previously-indicted case for trial, United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), the government has every right to interrogate witnesses on subjects relevant to a pending indictment.  United States v. Braasch, 505 F.2d 139, 147 (7th Cir. 1974);  United States v. Zarattini, 552 F.2d 753, 757 (7th Cir. 1977);  Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972).”  (Id., at pp. 725–726.)

With the foregoing principles in mind, we have examined the reporter's transcripts of the grand jury proceedings of March 3, 1981 and April 30, 1981, provided to us by petitioner, in light of the People's contention that the investigation continued into the participation of other persons in the killing of the victim and into the destruction of evidence, a separate criminal offense.14

Testimony at the preliminary hearing revealed, in the questioning of Steven Rauch, that petitioner had mentioned “there were two other people involved,” and that they were supposed to have been armed, one with an M–16, and in the testimony of Donald McKernan that petitioner had told him that “Butch, he says, was on the hill with a rifle.”

Immunity statutes such as section 1324 have been characterized as essential to the effective enforcement of criminal statutes.   Their primary use has been to investigate offenses “of such a character that the only persons capable of giving useful testimony are those implicated in the crime.”  (Kastigar v. United States (1972) 406 U.S. 441, 446, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212;  Nelson v. Municipal Court (1972) 28 Cal.App.3d 889, 893, fn. 5, 105 Cal.Rptr. 46;  People v. Williams (1970) 11 Cal.App.3d 1156, 1164, 90 Cal.Rptr. 409.)

The witnesses subpoenaed before the grand jury on March 3, 1981, were James Danberger, Daniel Gonzales, Donald Arnold, Joseph Limdico Verches and Mark Brown.   Danberger refused to testify at the first proceeding.   Daniel Gonzales testified that petitioner had stopped at his house after the incident.   When asked whether he had any knowledge of who was present at the scene of the killing of Patrick McKernan on April 30, 1980, Gonzales testified that petitioner had said he was “afraid that he had shot Butch,” that petitioner had “instructed the individual that was with him, Steve, to go back out there to see whether or not it was Butch ․ so, from that I take it Steve, Butch, and Don were—Don and then Mark, apparently.”

Donald Arnold was questioned as to whether he was present at petitioner's home on the night of April 30, 1980, whether he had been given some tapes at that time, whether he had possession of any guns, photographs, writing, or clothing in connection with the case.

Joseph Limdico (Butch) Verches testified that prior to the incident he had conversations with petitioner about petitioner allegedly being blackmailed, that he went with petitioner to buy some tapes and tape recording equipment for his telephone;  he admitted being on Highway 101 in the vicinity the night of the incident, he remembered seeing a red Chevy truck stop at the sign, he knew nothing of guns or missing evidence in the case.

Mark Brown, petitioner's stepson, refused to testify at the first proceeding.

James Danberger and Mark Brown subsequently chose to testify rather than face contempt proceedings, and the grand jury was convened again on April 30, 1981, for a continuation of the proceedings.

Danberger testified that he had information prior to the death of McKernan about the blackmailing, that he had a key to petitioner's shop and he would occasionally pick up the mail and put it on petitioner's desk, that petitioner suspected him of writing a blackmail letter, that he heard about the incident of April 30, 1980, the following day, from petitioner and Don McKernan, that he was told petitioner had been accompanied by Steve Rauch, that he knew of no one else who had been present at the scene, that he never saw any weapons.

Mark Brown testified that he was present when petitioner left the house with Steve, that at petitioner's request he returned to the scene with Steve and picked up the bag, that he never saw the body or any weapons, that he heard petitioner tell his mother, “I think I shot somebody,” that he was present during the search, that petitioner sent him to the police station to pick up the tapes, that he saw Don Arnold with some cassette tapes which Arnold gave to petitioner, that he did not know what happened to the guns.

 The burden was upon petitioner to demonstrate that the sole or dominant purpose of convening the grand jury to take the testimony of the foregoing witnesses was to prepare for the pending trial.   In the absence of such a showing, the grand jury proceedings are entitled to a presumption of lawfulness and regularity.  (In re Grand Jury Proceedings (3 Cir. 1980) 632 F.2d 1033, 1041.)   We conclude that petitioner has not discharged his burden.

Since we have found that respondent court's actions were proper in all respects, the alternative writ of prohibition is discharged and the petition is denied.


1.   All subsequent references will be to the Penal Code.

2.   “Q. What was it that you knew when you seized these tapes?  [¶]  A.   From the interview with Linda McKernan, she had mentioned a phone call that she received from a person calling himself a cop and it was related to threats and a blackmail.”

3.   It was established at the preliminary hearing that some of the information given to Officer McLaughlin by Linda and Bruce was false:  Bruce and Patti Pineda had found the van;  Bruce did not have a key to the van but had removed the ignition and had a key made by a locksmith.   The phone call from the blackmailer related by Linda was false.   However, it was reasonable for the officer to believe the information given to him to have been true, it having been related to him by persons who were close to and concerned about the victim and confirmed by his conversations with them.

4.   Steven Rauch was charged as a codefendant with defendant in this case.   He entered a plea of guilty to a violation of section 32 (accessory), and the section 187 (murder) charge was dismissed on motion of the District Attorney.

5.   Evidence Code section 250:  “Writing means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”  (Emphasis added.)   Correspondence is defined as “communication by letters.”   Webster's Seventh New Collegiate Dictionary (1972) p. 187.

6.   “Q. Would you tell us why you took those cassette tapes.  [¶]  A.   I took those tapes because I felt that there was evidence of telephone communications which would relate to a blackmail consent.  [¶]  By this, do you refer to the telephone communication that Linda McKernan told you about?”  [¶]  Yes.”

7.   At the preliminary hearing, Officer McLaughlin testified as follows:  “Q.   Okay.  Now, at the time you seized these tapes, did you know of any use of the telephone in connection with an alleged extortion attempt?  [¶]  A.   Yes.  [¶]  Q.   What was it that you knew when you seized these tapes?  [¶]  A.   From the interview with Linda McKernan, she had mentioned a phone call that she received from a person calling himself a cop and it was related to threats and a blackmail.  [¶]  Q.   Do you recall what the gist of that telephone conversation was?  [¶]  A.   It involved threats towards Linda and family, wanting, the suspect on the threats apparently wanted some money that he was cheated out of․  [¶]  Q.   From the information you received from Linda McKernan, did the contents of the telephone call indicate that the caller, the person that was calling was involved in the blackmail himself?  [¶]  Yes.”

8.   The issue was framed by respondent court as follows:  “[THE COURT:]  Once having the tapes, we have then the question of whether the officers would have to go to a magistrate and say, ‘All right, we executed this warrant.   We now have eight reels of—eight cassettes and we don't know whether there is anything on it or not, so, therefore, we want your permission to listen to them.’  [¶]  Let's get it right flat out in the open so that you have your issues framed, gentlemen.  [¶]  I am going to hold that the police department was not required to do that and, therefore, an additional or further search warrant was not required for the purposes of listening to those cassettes and, therefore, the motion to suppress the cassettes under 1538.5 will be denied.

9.   Petitioner's attempt to equate the tapes to a sealed package or a closed suitcase fails, for it was evident to the officer's senses, at the time he first observed the tapes, which were located in and adjacent to the telephone answering machine, that the tapes in themselves might be evidence of the commission of the crime.

10.   Section 1538.5 is a proper means for raising the issue that an admission or confession is the product of an unlawful arrest—a seizure of the person in violation of the Fourth Amendment.  (People v. Takencareof (1981) 119 Cal.App.3d 492, 496, 174 Cal.Rptr. 112;  People v. Richards (1977) 72 Cal.App.3d 510, 513, 140 Cal.Rptr. 158.)

11.   Section 917 provides that “The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.”

12.   Section 939.2 provides that “A subpoena requiring the attendance of a witness before the grand jury may be signed and issued by the district attorney, his investigator or, upon request of the grand jury, by any judge of the superior court, for witnesses in the state, in support of the prosecution, for those witnesses whose testimony, in his opinion is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct.”

13.   Section 939.3 provides:  “In any investigation or proceeding before a grand jury for any felony offense when a person refuses to answer a question or produce evidence of any kind on the ground that he may be incriminated thereby, proceedings may be had under Section 1324.”

14.   The transcripts of the grand jury proceedings were apparently ordered disclosed pursuant to the provisions of section 924.6.

MILLER, Associate Justice.

TAYLOR, P. J., and SMITH, J., concur.