Opinion
KINGSLEY, J.
Petitioners have been indicted for pandering and for conspiracy to commit pandering. They duly moved, under section 1538.5 of the Penal Code, for an order suppressing certain physical evidence arid for its return,
and for the suppression of the testimony of two witnesses, which testimony they alleged was the fruit of the unlawful searches and seizures involved in the first branch of their motion. The trial court, after
an extended hearing, denied the motion to suppress the physical evidence and did not rule on the motion to suppress the oral testimony.
We issued our alternative writ of mandate. The matter has been briefed and argued. For the reasons set forth below, we conclude: (1) that some of the physical evidence was properly sought and seized; (2) that other physical evidence wus illegally seized; and (3) that petitioners are entitled to a further hearing on the specific items to be suppressed and on their motion to suppress oral testimony.
I
We dispose, first, of a collateral contention by petitioners. The evidence involved was seized during an investigation of the alleged publication and distribution of obscene pictures and magazines and the seizure was made on the theory that the items seized were obscene and constituted evidence of violations of section 311.2 of the Penal Code. As indicated above, petitioners are not now, and never have been, charged with violation of the obscenity statutes, but solely with pandering and conspiring to pander; so far as we are aware, nobody else has been charged with such a violation on the basis of the evidence herein involved.
The searches and seizures herein complained of were made in April and May of 1972; the indictments of petitioners were returned on July 20 and 21, 1972; the case has not yet been brought to trial.
Petitioners contend that the long delay in prosecuting them, and in not prosecuting them for the offenses contemplated at the time of seizure, entitles them to the relief sought. As a ground for granting a motion under section 1538.-5 the contention is without merit. A search and seizure is valid or invalid depending on the situation existing at the time they are made. Just as an invalid search cannot be justified by later events, so a valid search does not become invalid by subsequent events. We know of no authority that requires a prosecuting officer to file criminal charges on the same theory as that held by the police in acquiring evidence.
Nor
is the delay in proceeding with the case, even if improper, a ground for a 1538.5 motion. If petitioners’ right to a speedy trial has been infringed, their remedy is to seek dismissal of the indictments, not to suppress evidence.
II
In 1972, the police arrested a burglar as he was leaving certain premises on Fulton Avenue in North Hollywood. His takings included a magazine called “Sexscope, Vol. 2, No. 3” and a mock-up of another magazine entitled “Sex Today, Vol. 1, No. 1.” Sergeant Petroski, of the Los Angeles Police Department, presented that material, together with his affidavit reciting other information concerning the premises of Fulton Avenue, and obtained a search warrant (warrant No. 3580) authorizing a search of the Fulton Avenue premises and the seizure of 18 copies, each, of the magazine and the magazine represented by the mock-up,
together with: “. . . business records which include Pacific News Sales Reports, Oxford Bindery Schedules, London Press Invoices, London Press Job Orders, memos, job tickets, publication orders, magazine office sample cover lists, production schedule, jobs delivered, digest, London Press letters to Academy Press and Academy Press letters to London Press, regarding Sexscope Magazine, volume two, number three.”
Execution of that warrant produced material indicating that the actual publication of the two magazines was being conducted from the premises of an organization known as “American Art Enterprises, Inc.,” located on Lassen Street in Chatsworth, and that copies of the two magazines were stored at the Chatsworth address. Sergeant Petroski then secured a second warrant (No. 3589), authorizing a search of the Chatsworth premises and the seizure of: “A magazine titled ‘Sex Today’ Vol. 1 No. 1; a magazine titled ‘Sexscope’ Vol. 2 No. 3; all layouts, photos, negatives, plates, brown-line proofs, photostat copies, galey [sic] forms, flats, memoranda, purchase orders, price schedules, job orders, invoices, job tickets, transparencies, original art, distribution lists, shipping schedules and orders, notes or instructions specifically relating to the ordering, preparation and distribution of ‘Sex Today’ Vol. 1 No. 1 and ‘Sexscope’ Vol. 2 No. 3.”
The Chatsworth premises proved to be a large warehouse, approximately
300 x 500 feet in size, containing a large number of cartons. Although the cartons had some kind of code number marked on them, there was nothing to indicate to the officers which cartons contained the particular magazines named in warrant No. 3589. The officers began searching through the cartons and found (in all) numerous copies of 1.73 different magazines, each of which they regarded as being obscene. At the officers’ request, two judges of the Los Angeles Municipal Court (neither being the judge who had issued the original two warrants). came to the warehouse, inspected the magazines found there, orally stated that they were obscene, and orally directed the seizure of 18 copies of each magazine,
together with about 30 cartons of business records relating to the 173 magazines.
Subsequently, on Sergeant Petroski’s affidavit, warrants (Nos. 3589-B, 3676, 3677, 3714) were secured, purportedly validating the seizures made on the oral authority of the two judges.
(1) We conclude that the search in execution of warrant No. 3580, and the seizure of the items then seized, and the search in execution of warrant No. 3589, and the seizure of the items described in that warrant, were valid insofar as they were directed to the two named magazines. The incriminating magazine, magazine mock-up and pictures, discovered on the arrested burglar, were shown to the magistrate; it is not here contended that his determination that they were obscene was in error. The affidavits involved are sufficient to meet the other tests for a valid warrant.
Since both warrants limited the business records to be seized to records relating to the two magazines specifically named in the warrant, we conclude that the trial court did not err in holding that the scope of the warrant was not overly broad.
(2) The warrants obtained after the search and seizure of the 171 magazines not named in either warrant 3580 or 3589, and of business records relating to those 171 magazines, add nothing to the case at bench. As we
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Opinion
KINGSLEY, J.
Petitioners have been indicted for pandering and for conspiracy to commit pandering. They duly moved, under section 1538.5 of the Penal Code, for an order suppressing certain physical evidence arid for its return,
and for the suppression of the testimony of two witnesses, which testimony they alleged was the fruit of the unlawful searches and seizures involved in the first branch of their motion. The trial court, after
an extended hearing, denied the motion to suppress the physical evidence and did not rule on the motion to suppress the oral testimony.
We issued our alternative writ of mandate. The matter has been briefed and argued. For the reasons set forth below, we conclude: (1) that some of the physical evidence was properly sought and seized; (2) that other physical evidence wus illegally seized; and (3) that petitioners are entitled to a further hearing on the specific items to be suppressed and on their motion to suppress oral testimony.
I
We dispose, first, of a collateral contention by petitioners. The evidence involved was seized during an investigation of the alleged publication and distribution of obscene pictures and magazines and the seizure was made on the theory that the items seized were obscene and constituted evidence of violations of section 311.2 of the Penal Code. As indicated above, petitioners are not now, and never have been, charged with violation of the obscenity statutes, but solely with pandering and conspiring to pander; so far as we are aware, nobody else has been charged with such a violation on the basis of the evidence herein involved.
The searches and seizures herein complained of were made in April and May of 1972; the indictments of petitioners were returned on July 20 and 21, 1972; the case has not yet been brought to trial.
Petitioners contend that the long delay in prosecuting them, and in not prosecuting them for the offenses contemplated at the time of seizure, entitles them to the relief sought. As a ground for granting a motion under section 1538.-5 the contention is without merit. A search and seizure is valid or invalid depending on the situation existing at the time they are made. Just as an invalid search cannot be justified by later events, so a valid search does not become invalid by subsequent events. We know of no authority that requires a prosecuting officer to file criminal charges on the same theory as that held by the police in acquiring evidence.
Nor
is the delay in proceeding with the case, even if improper, a ground for a 1538.5 motion. If petitioners’ right to a speedy trial has been infringed, their remedy is to seek dismissal of the indictments, not to suppress evidence.
II
In 1972, the police arrested a burglar as he was leaving certain premises on Fulton Avenue in North Hollywood. His takings included a magazine called “Sexscope, Vol. 2, No. 3” and a mock-up of another magazine entitled “Sex Today, Vol. 1, No. 1.” Sergeant Petroski, of the Los Angeles Police Department, presented that material, together with his affidavit reciting other information concerning the premises of Fulton Avenue, and obtained a search warrant (warrant No. 3580) authorizing a search of the Fulton Avenue premises and the seizure of 18 copies, each, of the magazine and the magazine represented by the mock-up,
together with: “. . . business records which include Pacific News Sales Reports, Oxford Bindery Schedules, London Press Invoices, London Press Job Orders, memos, job tickets, publication orders, magazine office sample cover lists, production schedule, jobs delivered, digest, London Press letters to Academy Press and Academy Press letters to London Press, regarding Sexscope Magazine, volume two, number three.”
Execution of that warrant produced material indicating that the actual publication of the two magazines was being conducted from the premises of an organization known as “American Art Enterprises, Inc.,” located on Lassen Street in Chatsworth, and that copies of the two magazines were stored at the Chatsworth address. Sergeant Petroski then secured a second warrant (No. 3589), authorizing a search of the Chatsworth premises and the seizure of: “A magazine titled ‘Sex Today’ Vol. 1 No. 1; a magazine titled ‘Sexscope’ Vol. 2 No. 3; all layouts, photos, negatives, plates, brown-line proofs, photostat copies, galey [sic] forms, flats, memoranda, purchase orders, price schedules, job orders, invoices, job tickets, transparencies, original art, distribution lists, shipping schedules and orders, notes or instructions specifically relating to the ordering, preparation and distribution of ‘Sex Today’ Vol. 1 No. 1 and ‘Sexscope’ Vol. 2 No. 3.”
The Chatsworth premises proved to be a large warehouse, approximately
300 x 500 feet in size, containing a large number of cartons. Although the cartons had some kind of code number marked on them, there was nothing to indicate to the officers which cartons contained the particular magazines named in warrant No. 3589. The officers began searching through the cartons and found (in all) numerous copies of 1.73 different magazines, each of which they regarded as being obscene. At the officers’ request, two judges of the Los Angeles Municipal Court (neither being the judge who had issued the original two warrants). came to the warehouse, inspected the magazines found there, orally stated that they were obscene, and orally directed the seizure of 18 copies of each magazine,
together with about 30 cartons of business records relating to the 173 magazines.
Subsequently, on Sergeant Petroski’s affidavit, warrants (Nos. 3589-B, 3676, 3677, 3714) were secured, purportedly validating the seizures made on the oral authority of the two judges.
(1) We conclude that the search in execution of warrant No. 3580, and the seizure of the items then seized, and the search in execution of warrant No. 3589, and the seizure of the items described in that warrant, were valid insofar as they were directed to the two named magazines. The incriminating magazine, magazine mock-up and pictures, discovered on the arrested burglar, were shown to the magistrate; it is not here contended that his determination that they were obscene was in error. The affidavits involved are sufficient to meet the other tests for a valid warrant.
Since both warrants limited the business records to be seized to records relating to the two magazines specifically named in the warrant, we conclude that the trial court did not err in holding that the scope of the warrant was not overly broad.
(2) The warrants obtained after the search and seizure of the 171 magazines not named in either warrant 3580 or 3589, and of business records relating to those 171 magazines, add nothing to the case at bench. As we
have said above, the search and the seizures either were valid when made or they were not. There is no authority for the issuance and execution of a retroactive warrant.
(3) Insofar as the officers merely opened what were, to them, unmarked cartons in search of the two named magazines, we see nothing improper. There is, however, a serious issue as to the right of the officers, searching for two specific magazines and for business records relating only to those magazines, to leaf through other, unnamed, magazines. It would seem that a mere glance at the covers of the 171 unnamed magazines would have told the officers that they were not within the scope of their authority to search; the suggestion that business records relating to the named magazines might have been secreted in other magazines seems to us farfetched. However, the trial court, having concluded that the search and seizure was justified on other grounds, did not reach that issue. We do not decide it, since we conclude, for reasons stated below, that the seizures beyond the terms of the first two warrants were invalid even if the officers and judges lawfully inspected every page of every one of the 171 unnamed magazines.
(4) The trial court held that the total seizure was lawful in reliance on cases (such as
Skelton
v.
Superior Court
(1969) 1 Cal.3d 144 [81 Cal.Rptr. 613, 460 P.2d 485]) which allow the seizure of “contraband” legitimately seen by officers while conducting a lawful search for other items. But we know of no authority that extends that rule to the seizure of matter which lies within the special protection of rules developed under the First Amendment. In fact, the cases which we have found hold that, where an item is sought which may turn out to be protected by the First Amendment, no seizure may be made without the express authority of a magistrate.
If magisterial intervention is necessary, that determination must be made by a warrant, and a warrant must be supported by an affidavit and the warrant must be in writing. Not only do the statutes use such terms,
but the
entire statutory scheme for traversing warrants and for attacking seizures purportedly legitimated by warrants requires that there be written records available for examination and testing at hearings, whether under section 1538.5 or under section 1539. To say that a magistrate may simply be shown a suspect item and orally authorize its seizure would make a mockery of all the constitutional guarantees limiting the powers of the police to seize personal property.
In
Bowyer
v.
Superior Court, supra,
37 Cal.App.3d 151 (hg. den.), the magistrate had taken a “telephonic affidavit” which had thereafter been duly recorded, transcribed and filed in conformity with subdivision (b) of section 1526, but had given only an oral direction to the officer to proceed with the requested search and seizure. The appellate court held that the oral direction did not support the seizure, since only a written warrant is contemplated by the statutes. Clearly, as in
Theodor,
the actions taken in the case at bench fall short of the actions held insufficient in
Bowyer.
Ill
As we said above, the trial court did not reach the portion of the motion attacking certain potential oral testimony. Whether, in fact, that testi
mony is the “fruit” of the seizures of items we order suppressed or of other and lawfully acquired information, is a matter not susceptible of determination in this court. As to that matter, a further trial court hearing is required.
In addition, the state of the record is such that we are unable to specify, in our judgment, the exact documents to be suppressed. We leave it to the trial court, aided by the parties, to specify such details of suppression as may be required by the general terms of our judgment.
Let a writ of mandate issue, directing the superior court: (1) to vacate so much of its order denying petitioners’ motions to suppress as involved items other than those specifically included within the express terms of warrants 3580 and 3589; (2) to grant the motions to suppress as to said other items; and (3) to hold a hearing on the specific items to be suppressed and to determine, so much of said motions as related to the potential testimony of Irving Sofsky and Robert Kanters.
Files, P. J., and Dunn, J., concurred.
A petition for a rehearing was denied April 25, 1974, and the petition of the real party in interest for a hearing by the Supreme Court was denied June 5, 1974.