In Re Quackenbush

Under former Health and Safety Code section 1924 (now section 121710) it is a misdemeanor to fail to produce on demand of a local health officer an animal that has bitten or otherwise exposed a person to rabies. 1 We hold the section does not dispense with the Fourth Amendment requirement for obtaining a search warrant in all cases. We affirm the judgment granting defendant’s writ of habeas corpus.

Facts

The facts are undisputed. On August 17, 1994, Animal Control Officer Frank Wagner learned that a dog bite had occurred earlier that day at the residence of Daniel A. and Beverly Quackenbush. There he discovered that the dog did not belong to the Quackenbushes, but they were watching it until the owners returned. Because Wagner could not determine whether the dog had been vaccinated for rabies, he ordered it to be quarantined.

Beverly Quackenbush signed an agreement to keep the dog quarantined at her home for 10 days and to notify the authorities immediately if the dog *1304 escaped, becames ill, or died. Later, Wagner was told by a supervisor that the dog could not be quarantined at the Quackenbushes’ home because they were not the dog’s owners.

On August 18 Wagner…

I respectfully dissent. The majority affirm the superior court’s grant of a petition for habeas corpus. In my opinion, the superior court should not have even reached the merits of the petition. Instead, it should have summarily denied it on the ground that Daniel A. Quackenbush had an adequate remedy at law.

Quackenbush was charged in the municipal court with two misdemeanors. He brought a motion to suppress evidence on Fourth Amendment grounds. When it was denied, his pretrial remedy was to “appeal” to the appellate department of the superior court. The penultimate sentence of Penal Code section 1538.5, subdivision (j) expressly authorizes such an appeal. The People’s concession that a petition for writ of habeas corpus is appropriate is erroneous and not binding on this court. Their earlier objection in the superior court was correct and should have been sustained.

Generally speaking, Fourth Amendment violations are not cognizable on habeas corpus. In In re Sterling (1965) 63 Cal.2d 486 [ 47 Cal.Rptr. 205 , 407 P.2d 5 ], Chief Justice Traynor eloquently explained why a criminal defendant is required to exhaust his direct remedies: the use of illegally obtained evidence has no…

Under former Health and Safety Code section 1924 (now section 121710) it is a misdemeanor to fail to produce on demand of a local health officer an animal that has bitten or otherwise exposed a person to rabies. [1] We hold the section does not dispense with the Fourth Amendment requirement for obtaining a search warrant in all cases. We affirm the judgment granting defendant's writ of habeas corpus.

The facts are undisputed. On August 17, 1994, Animal Control Officer Frank Wagner learned that a dog bite had occurred earlier that day at the residence of Daniel A. and Beverly Quackenbush. There he discovered that the dog did not belong to the Quackenbushes, but they were watching it until the owners returned. Because Wagner could not determine whether the dog had been vaccinated for rabies, he ordered it to be quarantined.

Beverly Quackenbush signed an agreement to keep the dog quarantined at her home for 10 days and to notify the authorities immediately if the dog escaped, becames ill, or died. Later, Wagner was told by a supervisor that the dog could not be quarantined at the Quackenbushes' home because they were not the dog's owners.

On August 18 Wagner…