Bielicki v. Superior Court

57 Cal.2d 602 (1962) ROBERT JOHN BIELICKI et al., Petitioners,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

L. A. No. 26693. Supreme Court of California. In Bank.

May 10, 1962. Frank C. Wood, Jr., for Petitioners.

Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, William B. McKesson, District Attorney (Los Angeles), Harry Wood and Harry B. Sondheim, Deputy District Attorneys, for Respondent and Real Party in Interest. [604]

SCHAUER, J.

Petitioners seek prohibition to restrain respondent superior court from proceeding to trial on an information charging them with violation of section 286 of the Penal Code (the infamous crime against nature).

Timely motion was made at the preliminary examination to exclude all of the evidence offered by the State on the ground that it had been obtained by an illegal search and seizure in violation of the constitutional guarantees (U.S. Const., 4th and 14th Amends.; Cal. Const., art. I, 19). The motion was denied and petitioners were held to answer.petitioners then moved in the superior court to set aside the information for lack of reasonable or probable cause (Pen. Code, 995) in that their commitment was based entirely upon inadmissible evidence. The motion was denied. We have concluded that on the particular facts of this case the challenged evidence was inadmissible and hence that the peremptory writ should issue.

The sole witness at the preliminary examination was Officer Hetzel of the Long Beach Police Department's vice squad. Officer Hetzel testified in substance to the following facts: The Pike Corporation, owner of an amusement park in the City of Long Beach, had authorized the police to go on the roof of a building in the park housing a group of pay toilets in order to "do something in regard to the homosexual activity going on inside of the toilets." A pipe about 13 inches long and 1 1/2 to 1 3/4 inches in diameter, capped when not in use, had been installed through the roof of the building over two of the toilet booths (referred to hereinafter as numbers 4 and 5). Officer Hetzel did not know who had installed the pipe. He testified, however, that the purpose of the pipe was "To look through," and that a person so doing would observe an area of the two toilet booths below approximately 3 feet in total diameter (i.e., 18 inches on either side of a thin partition between the booths). If the toilets were in use the observer would therefore see part of the body of each person using them, depending upon the position of the occupant. The officer further testified that "a lot of times" each week he went on the roof of the restroom, uncapped the pipe, and watched the occupants of the toilets below. On each occasion he remained on the roof "Until we make an arrest, or until we see that we can't make an arrest."