Chapman

The Appellate Department of the Superior Court of Alameda County has certified to this court on its own motion and we have accepted the instant case which involves a prosecution under Penal Code section 311.2 (sale or distribution of obscene matter). The case reached the appellate department on appeal from the denial by the municipal court of a motion to suppress evidence seized under a search warrant, the motion being made pursuant to Penal Code section 1538.5 et seq. The appellate department affirmed the order of the municipal court as to books and magazines purchased by the officer from defendant and alleged to be obscene. The order was reversed as to the allegedly obscene books and magazines which were seized under a search warrant issued ex parte.

The facts are undisputed. On September 23, 1969, a search warrant authorizing the search of the Readmore Books Store in Fremont was issued by the Municipal Court for the Fremont-Newark-Union City Judicial District of the County of Alameda. The search warrant described by name 30 magazines and paperback books alleged to be in the possession of Paul Chapman and on the premises of the Readmore Books Store at 129 Anza Street…