Defendant was indicted for conspiracy to commit grand and petty theft and conspiracy to solicit for charitable purposes without a permit. (Pen. Code, § 182; San Francisco Police Code, § 590.) He appeals from the judgment of conviction entered on a jury verdict finding him guilty on both counts and from the order denying his motions for new trial and in arrest of judgment.
Defendant employed several solicitors to obtain money for a publicity campaign for blood donations for wounded members of the armed services. Introducing themselves as representatives of patriotic and veterans organizations the solicitors telephoned thirty to fifty persons a day and asked for money to print newspaper advertisements, open a blood collection center, sponsor radio and television shows, buy blood, and provide cab fare for blood donors. In response to these calls, contributions totalling over $65,000 were made to defendant. He kept for his own use most of the money received.
On March 12, 1952, members of the San Francisco police department and the district attorney's office entered defendant's place of business, identified themselves and showed the office manager a search warrant. She asked them to wait for defendant, but the investigator from the district attorney's office replied, "Well, while we are waiting here there is no use wasting the time, we will just start looking into things and getting them ready to take what we want." For five hours the investigator, the police and an assistant district attorney ransacked defendant's files, desks, and wastebaskets. The investigator testified: "We were looking around for evidence
Upon the return of the warrant to the municipal court that issued it (see Pen. Code, § 1537), the court entered an order that the district attorney could retain the seized property as evidence. Defendant contended that the warrant was void and made a motion to quash it. The motion was denied, and defendant then petitioned the superior court for a writ of mandamus directing the municipal court to return the seized property. In hearings on the motion the district attorney and defendant's counsel thoroughly argued the question of the validity of the warrant and the legality of the search and seizure pursuant to it. The warrant placed no restrictions on the area to be searched or the things to be seized and was strikingly similar to the general warrant authorizing unlimited searches and seizures that was condemned when the right of privacy first received legal protection. (See Huckle v. Money, 2 Wills K.B. 206, 207, 95 Eng.Rep. 768, 769 (1763); Entick v. Carrington, 19 Howell's State Trials 1029 (1765); Lasson, The History and Development of the Fourth Amendment to the United States Constitution, pp. 43-50.) The court held that the warrant was void and that the search and seizure pursuant to it were illegal and entered a judgment quashing the warrant and ordering defendant's property returned to him. No appeal was taken and the judgment became final. The district attorney returned the seized papers to defendant, but during the proceedings, and unknown to either the court or defendant, he had been making photostats of them. As soon as defendant learned of the photostats, he petitioned the superior court for a writ of mandamus directing their delivery to him. Although the record does not disclose the result of this proceeding, counsel agreed at oral argument that the court announced from the bench that it would deny the writ and asked that findings of fact and a formal judgment be prepared. Neither defendant nor the prosecution, however, prepared findings or a judgment, and no judgment was entered. At defendant's trial, the district attorney offered the photostats in evidence to show the nature and extent
Ordinarily preliminary questions of fact that govern the admissibility of evidence are determined by the trial court when objection is made to the introduction of the evidence at the trial, and the experience of the federal courts indicates that there are no compelling reasons why an exception to the general rule should be made in the case of illegally obtained evidence. (See Youman v. Commonwealth, 189 Ky. 152, 169-170 [224 S.W. 860]; Goodwin v. State, 148 Tenn. 682, 687 [257 S.W. 79]; see also 9 Wigmore on Evidence [3d ed.] § 2550; McCormick on Evidence §§ 52, 53.) The issues involved will ordinarily be no more time consuming or complicated than those presented to the trial court when it must rule, for example, on the admissibility of confessions, business records, or evidence claimed to be privileged, or on the qualifications of expert or other witnesses. On the other hand, a requirement that a preliminary motion be made to suppress the evidence would inevitably result in delaying the criminal trial while the motion was being noticed, calendared, heard, argued, and determined.
The judgment and order are reversed.
Gibson, C.J., Carter, J., and Schauer, J., concurred.
The majority opinion rests entirely upon the exclusionary rule this day adopted by the majority in People v. Cahan, ante, p. 434 [282 P.2d 905].
The only material difference between the Cahan case and the present one is that in Cahan the illegality resulted from the absence of any warrant while in the present case a warrant was issued which was subsequently found to be technically defective. Here again the record contains abundant evidence to show the guilt of the defendant (see People v. Berger, (Cal. App.) 274 P.2d 514), and the trial court properly admitted all of the challenged evidence in accordance with the settled rule in this state prior to the decision in the Cahan case.
Shenk, J., and Edmonds, J., concurred.
Respondent's petition for a rehearing was denied May 25, 1955. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.