Stoehr

Corwin and Albert Stoehr petition for a writ of prohibition and/or mandate following the denial of their motions under Penal Code sections 1538.5 and 995 and of their motion to disclose the identity of an informant. The motions were submitted on the transcript of the preliminary examination at which the Stoehrs were bound over to answer charges of possessing controlled substances, marijuana and narcotics paraphernalia in violation of Health and Safety Code sections 11350, 11357 and 11364, respectively. A writ of mandate should issue.

The police found and seized contraband upon which the charges against the Stoehrs are grounded in a search conducted under the authority of a search warrant. The only support for issuing the search warrant was an affidavit signed by a police officer which recited information learned from a confidential informant.

Absent the contraband seized in the search, there was insufficient evidence presented at the preliminary hearing upon which the defendants could be bound over for trial. Under these circumstances the validity of the lower court’s orders denying defendants’ motions to suppress and to vacate the information turns upon the sufficiency…