People v. Superior Court

Opinion

TAYLOR, J. Petitioner asks for a writ of prohibition to restrain the superior court from enforcing its order returning moneys, seized under search warrants, from Nebiolini, Frugoli and Gunter, and, pursuant to an arrest, from Becker (real parties in interest). The court’s order of return was pursuant to a motion made by real parties, in interest under section 1538.5 of the Penal Code.1

The facts disclose that much of the property ordered returned was seized under valid search warrants, which recited, on proof by affidavit, as follows: [874]“That there were used by the said {real parties in interest] and others, and it is intended that there be used as the means of committing said offenses, the following described articles and property:

“Daily bulletins, owe sheets (records of money owed on bets); scratch sheets, markers (records of bets made); racing forms, basketball cards . . . blackboards, tape recorders, United States currency or other memoranda thereof used for bookmaking pay-offs and received from bookmaking activities ...” (Italics added.)

Under these warrants the sum of $47.65 was taken from the person and premises of Nebiolirti at Ernie’s Barber Shop in South San Francisco, $159 from the person of Frugoli at the New Southern Restaurant in South San Francisco, and a total of $676.65 from the person, premises and automobile of Gunter at Welte’s Bar in South San Francisco. An unknown sum of money was seized from Becker, pursuant to her arrest. No money was taken from Pasco. Returns showing the seizure of the money and numerous other items constituting evidence of bookmaking activities were filed.

On September 15, 1969, the grand jury returned an indictment against real parties in interest accusing them of the following felonies: violations of Penal Code section 337a (bookmaking) and Penal Code section 182 (conspiracy). On October 7, 1969, real parties in interest filed a written notice of motion for order for release of the above described moneys held by the district attorney’s office.

In support of the motion for return of the property, counsel for real parties in interest, Thomas L. Bocci, submitted the following declaration: “That your ■ declarant hás reviewed the affidavits supported by search warrants issued at the request of the District Attorney in regard to the above proceedings and has not uncovered any allegations, representations or averments therein that would warrant the retention of said money by the said District Attorney’s office; that said monies do not constitute evidence, was not marked money, and was not used for bookmaking purposes; that said money is the property of each of those defendants in those amounts for which the receipt of the District Attorney’s office has issued.” The court ordered the return of the funds unless the district attorney could show that it “. . . is special money of some kind, marked as coming from some specific source.”