Gardiner v. Frederickson

WORKS, J.

This is an application for a writ of mandate, made to the superior court. A demurrer to the petition was sustained and judgment went accordingly. Petitioner appeals.

The petition alleges that on a certain day there was filed in the police court of the city of Los Angeles, of which respondent is one of the judges, a criminal complaint against petitioner, and that on the same day petitioner' pleaded not guilty thereto; that at all times mentioned in the petition, and now, a certain person was chief of police of the city of Los Angeles, two certain persons were police officers thereof, and a certain person was city prosecutor thereof; that two days before the* filing of the criminal complaint the two police officers entered petitioner’s place of residence without a search-warrant and took therefrom certain specified articles of personal property; that “the said property is now being unlawfully and improperly held by the said city prosecutor, chief of police and police officers in violation of the rights of 'this petitioner under the Constitution of the state of California. That the said city prosecutor, chief of police and police officers purpose, and each of them purposes, to use the said property, or some or all thereof upon the trial” of the criminal cause, “and that by reason thereof, and of the facts above set forth, the petitioner’s rights as aforesaid, under the Constitution of the state of California, have been and will be violated, unless the court order the return of said property as prayed”; and “that if the said chief of police, police officers and city prosecutor are permitted to retain possession of the above described property until the time of the trial of the aforesaid cause, the said officers or some or all of them, may, and your petitioner verily believes that they will, offer the said property so unlawfully seized as aforesaid, or some part thereof, as evidence upon the trial of the said cause, and the said judge may, and petitioner verily believes that he will, admit the same in evidence, and thereby the constitutional rights of your petitioner are now and will be hereafter violated, and your petitioner will be without remedy.” There are other allegations of the petition, but the foregoing are all that are

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material to the present inquiry. The pleading closes with a prayer that a writ of mandate issue “commanding” respondent police judge, the sole respondent in the proceeding, “to make and enter an order .directed to” the chief of police, the city prosecutor and the two police officers, “commanding them, and each of them, to release, surrender and deliver to the defendant all of the aforesaid personal property so unlawfully seized and held by them, or any of them ...”