Britt v. Superior Court

SCHAUER, J.

Petitioner seeks prohibition to restrain respondent superior court from proceeding to trial on an information charging him with violation of Penal Code section 288a.

Petitioner contends that he has been committed without reasonable or probable cause in that all of the evidence offered by the People at the preliminary examination was 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). We have concluded that, as in

Bielicki v. Superior Court

(1962) 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288], the challenged evidence was inadmissible and hence that the peremptory writ should issue.

The sole witness at the preliminary examination was Officer Nichols of the City of Santa Clara Police Department. He testified that on the day of the arrest he was stationed at The Emporium department store, in a space between the ceiling of the men’s restroom and the next floor above. Prom this

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vantage point he could, by means of two vents, look down into the four toilet stalls of the room. Bach stall was enclosed by three walls and a door that could be fastened; the partitions between the stalls began at about 8 to 12 inches above the floor. Officer Nichols had motion picture equipment and a radio transmitter with him, and maintained one-way radio contact with other police and store security officers located in a room a short distance down the hall from the restroom.

While looking through the above described vents Officer Nichols observed petitioner and another man enter adjacent toilet stalls and commit, by means of the space beneath the partition, an act in violation of Penal Code section 288a. Officer Nichols contacted his fellow officers by radio, and took motion pictures of the activity of petitioner and the other man. It was admitted that no warrant had been issued for search of the premises.

Petitioner moved to strike all of the above related evidence on the ground that it had been obtained by an illegal search and seizure. The motion was denied, as was petitioner’s subsequent motion to set aside the information on the same ground.