People v. Gershenhorn

KINGSLEY, J.

Since the People do not here contest either the factual or conelusional allegations of appellant, we accept the facts as stated in appellant’s declaration filed in the court below.

Appellant was arrested and his business premises searched

[124]

by officers of the Los Angeles Police Department, without a warrant and without reasonable grounds to believe him guilty of any criminal offense. As a result of the arrest and search, the officers seized certain business records and personal property of appellant, none of which was “contraband” as that term is used in connection with proceedings such as are herein involved. Appellant was admitted to bail and thereafter released from custody for lack of the filing of a criminal complaint. We infer from the documents before us that he was thereafter indicted by the Grand Jury for some offense

1

and that proceedings under that indictment are still pending.

Appellant moved in the superior court for an order suppressing the evidence secured as a result of the above search and seizure and for return of the property so seized. The motion was denied and defendant appealed from that portion of the order which denied the return of the seized property to defendant. The Attorney General has moved to dismiss the appeal as being from a nonappealable-order.

A person whose property has been seized unlawfully by a law enforcement agency is afforded a variety of remedies, one or more of which he may pursue, depending on the specific result he desires and his counsel’s decision as to tactics and strategy:

(1) He may move, before trial, to suppress the evidence as was done here. If that motion be denied, or even if no such motion had been made, he may object to the introduction of the evidence either at the preliminary examination or at the trial. If objection is made and overruled at the preliminary examination, he may review that action by a motion made under section 995 of the Penal Code. If unsuccessful there, he may seek relief in this court by way of a writ of prohibition. (Pen. Code, § 999a.) If still unsuccessful, he may renew his objection at the trial and, if then overruled, may raise the point on appeal from a judgment of conviction, if that should result. Under these circumstances, a denial of a pretrial motion to suppress is clearly interlocutory. Not only is the original ruling still open to reexamination in the ways just outlined but, since the sole purpose of a motion to suppress is to avoid a conviction of crime, the