Alvidres v. Superior Court
| Decision Date | 30 October 1970 |
| Citation | 90 Cal.Rptr. 682,12 Cal.App.3d 575 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gabriel ALVIDRES, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF VENTURA, Respondent, The PEOPLE of the State of California, By Their Attorney, Woodruff J. Deem, District Attorney of Ventura County, Real-Party in Interest. Civ. 37252. |
Richard E. Erwin, Public Defender, Donald G. Griffin, Deputy Public Defender, for petitioner.
No appearance for respondent court.
Woodruff J. Deem, Dist. Atty., Thomas J. Hutchins, Deputy Dist. Atty., for real party in interest.
Petitioner Gabriel Alvidres is presently charged in a two count information filed by the District Attorney of Ventura County with violating Health and Safety Code section 11530 (possession of marijuana) and section 11531 (importing marijuana). Trial is set for November 24, 1970.
After having unsuccessfully attempted to suppress the evidence of the marijuana, he petitioned this court for a writ of mandate pursuant to Penal Code section 1538.5(c).
Because the issue raised by petitioner appears to be one of first impression in California we issued the alternative writ.
The question presented is whether a search warrant may be validly issued at a time prior to the actual arrival of the matter to be seized at the premises to which the warrant is directed. In other words, if the magistrate is presented with an affidavit which satisfies him that all the requisites for a valid search will ripen at a specified future time or upon the occurrence of a specified event must he wait until that time or event before authorizing the search and seizure or may he issue his warrant to be executed at the future specified time or upon the occurrence of the future event.
Petitioner does not question the sufficiency of the evidence of probable cause or other aspects of the search warrant. He argues that because the affidavit in support of the warrant on its face showed that at the time it was presented and the warrant issued, the contraband had not yet arrived at the premises, it was fatally defective.
On December 13, 1969, sometime after 9 o'clock in the morning, Officer Vernon A. Tubbs of the Santa Paula Police Department presented an affidavit and an application for a search warrant to the Honorable Philip J. West, Judge of the Ventura Municipal Court, Santa Paula Department.
In his affidavit, Officer Tubbs stated as follows:
That on December 8, 1969, he had received information from a special agent of the Federal Bureau of Customs, Los Angeles office, to the effect that a parcel addressed to Gabriel Alvidres, 515 East Main Street, Santa Paula, California, from Robert J. James, 264th Trans Co., APO San Francisco, had been opened at the Federal Bureau of Customs Mail Division located at the San Francisco international airport. This opening had occurred on December 3, 1969. The customs agent advised that the parcel contained an attache case which in turn contained a pillow case and pillow. Another employee of the Customs Bureau had opened the pillow case and found it to contain matter which appeared to be marijuana. The pillow and pillow case had been returned to the attache case and retained in possession of the Federal Bureau of Customs.
On December 11, Officer Tubbs spoke by telephone to one Laurence DiRicco, who identified himself as the agent of the Federal Bureau of Customs who had opened the aforementioned parcel. DiRicco substantiated the information previously imparted to Tubbs and further indicated that on December 5 he had shipped the parcel in a locked mail pouch by registered mail to a postal inspector in Los Angeles.
On December 11, 1969, Tubbs spoke with one V. C. Spanier who identified himself as a postal inspector in Los Angeles and who verified that he had received the parcel on December 8, 1969. Spanier advised that he had opened the package on December 9 and that the pillow appeared to him to contain marijuana.
Spanier further avised that he had removed a sample of the material from the pillow and placed it in a sealed envelope and then had restored the pillow and pillow case and the attache case in the original parcel and resealed it. Both the sealed parcel and the sealed envelope containing the sample were forwarded by registered mail to the assistant post master at Santa Paula, California.
On December 12, 1969, Officer Tubbs verified Spanier's position with the United States Post Office Department and ascertained that Spanier had substantial experience in examining marijuana.
On December 11, 1969, Officer Tubbs received the sealed envelope from the assistant post master and had it analyzed by a criminalist in the crime laboratory of the Ventura Sheriff's Department. The criminalist reported to Officer Tubbs that the sample was in fact marijuana.
On December 11, 1969, Officer Tubbs was advised by the assistant post master at Santa Paula that the original parcel would be delivered to 515 East Main Street, Santa Paula on December 13, 1969, between the hours of 9 and 10 a.m.
Officer Tubbs was informed that the delivery would be made by one Don McClure, a post office employee. On December 11, Officer Tubbs was told by Sgt. Sanders of the Santa Paula Police Department that he (Sanders) on that date had talked to Frank Alvidres at 515 East Main Street, Santa Paula, and was told by him that his son Gabriel Alvidres had returned home the day before after serving in the armed forces in Viet Nam.
On December 11, Officer Tubbs was told by a representative of the army CID in San Pedro, California, that the name Robert J. James, 264th Trans Co., APO San Francisco, was a fictitious name.
Officer Tubbs concluded his affidavit with an averment that he had personal knowledge that Alvidres resided at 515 East Main Street, Santa Paula, California.
On the basis of this affidavit Judge West issued a warrant authorizing a search of the premises consisting of two buildings and surrounding yard at 515 East Main Street, Santa Paula, and authorizing the seizure of the marijuana in question.
Officer Tubbs in a return to the search warrant indicated that he served the warrant on December 13, 1969, at the indicated address and seized one foam rubber pillow, one pillow cover and one grey Samsonite attache case and one cardboard box containing a greenish brown vegetable substance appearing to be marijuana.
Officer Tubbs testified at the hearing on the motion under section 1538.5 of the Penal Code that he believed that the warrant was actually signed by the judge at 9 a.m. and the warrant was served at approximately 9:30 a.m. The affidavit in support of the warrant reveals an entry on the last page as follows: 'Subscribed and sworn to before me on this 13th day of December, 1969, at 9:30 a.m., signed by Philip J. West, Judge of the Municipal Court.'
It appears that at the preliminary hearing in this matter that Officer Tubbs had testified that the warrant was served at approximately 10:30 a.m.
Petitioner contends that the affidavit clearly shows that at the time it was presented to the judge there was no basis on which the court could conclude that the contraband was at that moment presently on the premises to be searched.
In view of the fact that the affidavit alleges that the assistant post master had indicated to Officer Tubbs that the parcel would be delivered between 9 and 10 a.m. and in view of the variance in the evidence concerning the actual time of obtaining the warrant and the actual time of service, our denial of this petition could be sustained on the grounds that there was probable cause to believe the contraband had arrived prior to issuance. However the affidavit does not contain any statement to the effect...
To continue reading
Request your trial
-
People v. Sanchez
...may never be issued in anticipation of the arrival of contraband was cogently and definitively rejected in Alvidres v. Superior Court, 12 Cal.App.3d 575, 581--582, 90 Cal.Rptr. 682. We adopt the reasoning and authorities relied on by the court in Defendant also asserts that the information ......
-
People v. Superior Court
...was prospective did not defeat the efficacy of the affidavit or the search warrant itself. (See Alvidres v. Superior Court (1970) 12 Cal.App.3d 575, 580--583, 90 Cal.Rptr. 682; and note Draper v. United States (1959) 358 U.S. 307, 312--313, 79 S.Ct. 329, 3 L.Ed.2d The warrant further author......
-
State v. Wright
...Johnson in possession of the drugs by executing the warrant before the package was delivered to him. See Alvidres v. Superior Court, 12 Cal.App.3d 575, 579, 90 Cal.Rptr. 682, 686 (1970). We think it most appropriate in anticipatory warrant situations, that the magistrate insert a direction ......
-
State v. Womack
...v. State, 617 P.2d 1117, 1124 (Alaska 1980); State v. Cox, 110 Ariz. 603, 522 P.2d 29, 31 (Ariz.1974); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682, 686 (Ct.App.1970); Bernie v. State, 524 So.2d 988, 991 (Fla.1988); Danford v. State, 133 Ga.App. 890, 212 S.E.2d 501, 501-0......