Eiseman

This is a petition for writ of prohibition to restrain the Santa Clara County Superior Court from proceeding to trial with respect to counts 4 and 5 of an information.

Questions Presented

1. The superior court was bound by the determination at the preliminary examination that petitioner did not consent to the search.

2. The contraband was not seized in a valid search incident to the arrest.

Record

A complaint was filed in the Municipal Court of the Palo Alto-Mountain View Judicial District, charging petitioner and David Marshall Hydie and Gary Phillip Smith with five violations: count 1, violation of Health and Safety Code section 11531 (sale of marijuana); count 2, violation of section 11530 (possession of marijuana); count 3, violation of section 11530.5 (possession of marijuana for sale); count 4, violation of section 11500 (possession of cocaine); and count 5, violation of section 11910 (possession of amphetamines).

At the preliminary hearing in that court petitioner was held to answer on all five counts, but his motion to suppress was granted as to marijuana found in drawers in petitioner’s room but denied as to all other exhibits.

After the filing of an…