Opinion
A153206
03-20-2018
JOHN ROBERT FINKELSTEIN, Plaintiff and Respondent, v. CITY OF SAN MATEO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16-SF-003091A)
John Robert Finkelstein has moved to dismiss the City of San Mateo's appeal of an order invalidating a warrant which authorized the search of his home. We agree that an order quashing a search warrant under Penal Code section 1539 is not an appealable order and therefore, we shall dismiss the appeal.
In the trial court, both the City of San Mateo (the city) and the district attorney's office representing the People of the State of California appeared in opposition to Finkelstein's motion to quash. While the People participated in writ proceedings involving this order, discussed post, the People are not parties to the present appeal.
All statutory references are to the Penal Code unless otherwise noted.
The parties' unopposed requests for judicial notice are granted.
Background
On January 14, 2016, a warrant was issued authorizing the search of Finkelstein's residence. When the warrant was executed four days later several digital devices were seized.
On March 14, 2016, Finkelstein moved to quash the search warrant and for the return of his seized property. The city agreed to return the seized property and on May 9, 2016, the city reported that all seized property had been returned to Finkelstein.
After the return of his property, Finkelstein resisted the city's attempts to have his motion taken off calendar. He argued that he was entitled to clear his name by quashing the warrant. On October 12, 2017, following an evidentiary hearing, the court issued an order making factual findings and declaring the warrant invalid. The court found that the police detective involved in securing the warrant made "a reckless, material misstatement of fact" in the affidavit submitted in support of the warrant and that absent the misstatement, the remaining statements in the affidavit are insufficient to establish probable cause.
In November 2017, the city and the People filed a joint petition for writ of mandate in this court seeking an order directing the superior court to vacate its order invalidating the search warrant. They argued, among other things, that the trial court acted in excess of its jurisdiction under section 1539, that the court abused its discretion in ruling on a moot motion and that there was no substantial evidence to support the court's factual findings. On December 1, this court summarily denied the petition as moot.
On December 21, the city filed its notice of appeal. Shortly thereafter, Finkelstein filed a lawsuit in the United States District Court for the Northern District of California naming the city and several others defendants alleging that the city's police detectives "used judicial deception to procure a search warrant" in violation of his Fourth Amendment rights.
Finkelstein has moved to dismiss the present appeal on numerous grounds including that an order issued pursuant to section 1539 is not an appealable order. The city opposes the motion to dismiss on numerous grounds and argues, among other things, that we should reconsider our prior conclusion that the matter is moot in light of the newly filed federal action. Given the city's concerns regarding the potential collateral consequences of the trial court's order with regard to pending federal litigation, we asked for supplemental briefing stating whether it is the party's "position that, if the present appeal is dismissed, the factual findings in the order invalidating the search warrant will be binding under the doctrine of collateral estoppel or otherwise on the [city] in any subsequent proceedings including the pending federal action." The city takes the position that the order would "most likely, not be binding in any subsequent proceedings," but notes some uncertainty in that position. Finkelstein, however, has assured the court that the order is "not a final decision on the merits which would be binding on the city."
Discussion
Under sections 1539 and 1540, a "a person who is not a defendant in a criminal action" may make a "motion to return property" that was seized by warrant on the ground that "there is no probable cause for believing the existence of the grounds on which the warrant was issued." Well-established authority holds that a motion for return of property under section 1540 is not an appealable order. (See People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125-126 [A statutory motion for return of property is a separate criminal proceeding which is not made appealable by the Penal Code.]; People v. Hopkins (2009) 171 Cal.App.4th 305, 308 ["If the 'separate proceeding' of a motion for return is regarded as a criminal proceeding," an order denying the motion is nonappealable because such an order is not listed among any of the matters for which an appeal is authorized by the Penal Code.]; see also People v. $25,000 United States Currency (2005) 131 Cal.App.4th 127, 132 [Rule of nonappealability applicable to orders denying the release of property under Penal Code provisions is equally applicable to claim for the return of property seized under civil forfeiture statutes.].) These cases hold that the proper avenue of redress is by petition for a writ of mandate, not an appeal. (Gershenhorn, supra, at p. 126; People v. $25,000 U.S. Currency, supra, 131 Cal.App.4th at p. 132; Hopkins, supra, at p. 309; see also Williams v. Justice Court (1964) 230 Cal.App.2d 87, 98 ["The purpose of . . . sections 1539 and 1540 is to provide the owner of seized property with a readily accessible court to pass on lawfulness of the seizure. By offering the claimant an opportunity for challenge under sections 1539-1540 and review of an unfavorable decision by prerogative writ, the state satisfies the demands of due process."].) Finally, these courts recognize that "[i]n the alternative, a property owner . . . may institute a civil action for recovery of his property (or a civil action in conversion), with a right to review as of course, by appeal from any adverse judgment in such civil action." (Gershenhorn, supra, at p. 126; Hopkins, supra, at p. 308.)
Section 1540 reads in full: "If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken." Section 1539 reads in relevant part: "(a) If . . . the grounds on which the warrant was issued are controverted and a motion to return property is made . . . by a person who is not a defendant in a criminal action at the time the hearing is held, the judge or magistrate shall proceed to take testimony in relation thereto, and the testimony of each witness shall be reduced to writing and authenticated by a shorthand reporter in the manner prescribed in Section 869."
The city argues that the cases above improperly characterize proceedings under section 1540 as a criminal proceeding rather than a special proceeding. The city relies on People v. Fields (1965) 62 Cal.2d 538 in which the court held that a defendant found insane and unable to stand trial under section 1368 has a right to appeal the commitment order. The court explained, "In a proceeding under section 1368 a defendant is not charged with a criminal act and is not subject to criminal proceedings or punishment if he is found insane. It is a special proceeding rather than a criminal action. [Citations.] Accordingly the right to appeal is governed by subdivision 1 of section 963 of the Code of Civil Procedure, which provides that an appeal may be taken from a final judgment entered in a special proceeding." (Id. at p. 540.) While the city's point is well taken that a proceeding is not necessarily criminal because the statutory procedure is found in the Penal Code, we remain convinced that the above authorities properly determined that a motion to return property under section 1540 is a criminal proceeding. Whereas a proceeding under section 1368 does not require any determination regarding defendant's criminal liability, a proceeding under section 1540 directly addresses the validity of the search warrant and requires a finding that the warrant was not based on probable cause. "The concept of probable cause for a search warrant is approximately the same as that which justifies an arrest without a warrant or the filing of a felony accusation: ' ". . . such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." ' " (Williams v. Justice Court, supra, 230 Cal.App.2d at p. 94.) Accordingly, we conclude that the order granting relief under section 1540 is a nonappealable order in a criminal proceeding.
"The holding in Fields was based on Code of Civil Procedure former section 963, subdivision 1, which authorized an appeal '[f]rom a final judgment entered in a special proceeding.' (Fields, supra, [62 Cal.2d] at p. 540.) The currently applicable successor to this statute does not refer to special proceedings and merely authorizes an appeal '[f]rom a judgment.' (Code Civ. Proc., § 904.1, subd. (a)(1).) However, the Supreme Court has held that '[t]he meaning is the same.' " (People v. Christiana (2010) 190 Cal.App.4th 1040, 1045-1046.)
We will not, as the city requests, exercise our discretion to treat this appeal at a second writ petition and resolve the issue on the merits. As noted above, this court denied the city's petition for writ of mandate as moot. The petition for writ of mandate was denied as moot because the seized property had been returned to Finkelstein and because this court's review of the trial court's decision regarding the validity of the warrant would further no legitimate purpose. Assuming the city prevailed, directing the trial court to reinstate the warrant would be pointless. The "changed circumstances" cited by the city has not altered that conclusion. Given Finkelstein's assurances that the trial court's factual findings are not binding on the city in the federal litigation, there is no reason to reconsider our prior conclusion that this matter is moot.
Disposition
The appeal is dismissed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------