Kirby

After a preliminary examination, petitioner was charged in respondent court with a violation of section 288 of the Penal Code. He moved, purportedly pursuant to section 1538.5 of the Penal Code, to suppress evidence which he contends was obtained in violation of his constitutional rights. The motion was denied. Pursuant to sub-, division (i) of section 1538.5, he petitioned this court for a writ of prohibition or mandate to secure the vacation of that order. We issued an alternative writ of mandate; the matter has been fully briefed and argued. For the reasons set forth below, we grant a peremptory writ of mandate and remand the case for a full evidentiary hearing on the motion.

Factual Background

The background facts, as set forth in the transcript of petitioner’s preliminary examination, are not in dispute.

On ,August 6, 1969, at 8:30 p.m., Officer Lawrence Domagalski of the Los Angeles Police Department, observed a 1964 step-down Chevrolet van legally parked in a manufacturing area in North Hollywood. He became suspicious because none of the business establishments were open at that hour. It was very unusual to see a vehicle parked there at that time. Also Officer…