People v. Superior Court

Opinion

SELBER, J.

*

The People seek relief by way of mandate pursuant to section 1538.5, subdivision (o) of the Penal Code from an order of the respondent court suppressing certain evidence in a criminal action against certain defendants, who are the real parties in interest herein.

[547]

The three exhibits which were ordered suppressed by respondent court and which constitute the gravamen of this petition are but a small part of the considerable evidence seized by the police during the execution of a search warrant on defendants’ premises. The warrant did not call for the seizure of the items involved in this proceeding. As a result of the events leading up to the execution of the warrant, there is now pending in respondent court a criminal prosecution in which the defendants are variously charged with conspiracy to commit murder, conspiracy to commit assault with a deadly weapon upon a police officer, assault with a deadly weapon likely to produce great bodily injury, possession of pipe bombs, and conspiracy to possess illegal firearms and destructive devices.

Defendants’ petitions for writs of prohibition and mandate have previously been denied by this court. The petition for writ of mandate particularly raised the issue of unlawful search and seizure by the police, the contention being made that the police had unlawfully entered the premises of the defendants. We ruled against the contention. The Supreme Court of this state has now denied hearing to the defendants on each of these petitions. It is therefore unnecessary to reopen that question upon the instant petition. We assume the police were legally on the premises.

Defendants’ motion to suppress evidence pursuant to section 1538.5 of the Penal Code was denied by respondent court, except as to Exhibits 100, 101 and 102. The People contend these exhibits were erroneously suppressed.

At the hearing upon the motion in respondent court, Sergeant Raymond Callahan testified that following his entry onto defendants’ premises he observed therein a tape recorder which had wires running to and attached to a telephone. A tape was on the tape recorder. When he observed this connection he formed the opinion that there was a violation of law in that the connection had been made without the authorization of the telephone company. Thereupon the tape recorder (Exh. 100), and the tape (Exh. 101), were taken to the police station where subsequently a transcript of the tape (Exh. 102) was prepared. A photograph of the tape recorder and the telephone (Exh. 99), made at the premises was introduced into evidence but was not suppressed.