Cave v. Superior Court, San Mateo County

• Decision Date: 21 November 1968
• Citation: 267 Cal.App.2d 517,73 Cal.Rptr. 167
• Court: California Court of Appeals Court of Appeals
• Parties: Norma Marie CAVE, Petitioner, v. SUPERIOR COURT, COUNTY OF SAN MATEO, Respondent. PEOPLE of the State of California, Real Party in Interest. Higinio Montoya LUCERO, Petitioner, v. SUPERIOR COURT, COUNTY OF SAN MATEO, Respondent. PEOPLE of the State of California, Real Party in Interest. Civ. 25737, 25777.

Page 167

73 Cal.Rptr. 167

267 Cal.App.2d 517

Norma Marie CAVE, Petitioner, v. SUPERIOR COURT, COUNTY OF SAN MATEO, Respondent.

PEOPLE of the State of California, Real Party in Interest.

Higinio Montoya LUCERO, Petitioner, v. SUPERIOR COURT, COUNTY OF SAN MATEO, Respondent.

PEOPLE of the State of California, Real Party in Interest.

Civ. 25737, 25777.

Court of Appeal, First District, Division 4, California.

Nov. 21, 1968.

Hearing Denied Jan. 22, 1969.

Harrington, Knight & Smith, Clarence B. Knight, Redwood City, for petitioner Cave.

George P. Eshoo, Redwood City, for petitioner Lucero.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

DEVINE, Presiding Justice

Writ of prohibition is sought to prevent the prosecution of petitioners, who are charged with receiving stolen property. Motion to suppress evidence as having been obtained by an illegal search was made and was denied.

The search was made pursuant to a search warrant which was issued upon an affidavit of a police officer. The affidavit is good in form and unassailable in substance. It recites the details of five burglaries in South San Francisco, in which specifically described television sets, radios, a gun, and other items were stolen. It recites the statements by named persons that males had been carrying television sets, as many as twenty-five, as well as other objects such as hand tools, into the premises at 216 Third Lane, South San Francisco; also, that an offer to sell at low prices a sander and a television set had been made to a named person by a man whom he saw to come out of the described premises about two weeks later. Altogether, an excellent showing is made. The affidavit recites that because the goods had been seen to be delivered to the premises at nighttime, and were not observed to leave during the daytime, the affiant believes that the stolen property is being removed from 216 Third Lane at night; wherefore, nighttime search is requested.

The search warrant describes the premises and the things to be seized, and commands peace officers to make 'immediate search' of the premises in the daytime or nighttime. It was issued December 4, 1967.

The search was not conducted, however, until December 11, 1967. On motion in the superior court under section 1538.5 of the Penal Code to suppress the evidence, the officer who was in charge of the search testified that the premises to be searched were approximately three blocks from the police station in South San Francisco, and while he had been in the area of the said premises daily from the date of the issuance of the search warrant, he had not conducted the search pursuant to the said warrant because he was looking for further evidence and because he wanted to serve the warrant when there were people in the house. The second of the expressed reasons, concerning the presence of people in the house, however, appears to have been a limited one because the officer related this reason to the day of the issuance of the warrant saying: 'I didn't know if anybody occupied the dwelling at that particular time on that particular day.' He did not testify that persons were not present at other times during the seven-day period, but, indeed, testified that surveillance was going on periodically and that on December 8 he saw a man carry a transistor radio into the house. Thus, the primary, if not the sole reason for the delay was the expectation of finding additional property; and respondent, conceding this, seeks to justify the search as permissible at any time within ten days.

From the transcript of the municipal court hearing, it appears that all of the goods offered in evidence had been purloined in burglaries of two separate homes in Palo Alto on the day of the search, December 11, 1967, except three small rings which had been stolen from the home of a resident of South San Francisco on November 4, 1967, about a month before the issuing of the search warrant. The burglary of November 4 had been reported to the police, but was not one of those described in the affidavit for the search warrant.

The officer had seen petitioner Lucero carrying many of the items of evidence into the premises at 216 Third Lane a few minutes before he demanded the search pursuant to the warrant which he exhibited to the occupants, including petitioners.

The question is whether a peace officer may delay the execution of a search warrant in which immediate search is directed for a period of seven days, for the purpose of apprehending additional evidence, including evidence of crimes not yet committed when the warrant was issued, within the described premises. Petitioners contend that the search so conducted is illegal. Respondent argues that the search and return are valid if they are accomplished within the time described in Penal Code section 1534 which, so far as relevant, reads: 'A search warrant must be executed and returned to the magistrate who issued it within 10 days after its date; after the expiration of this time the warrant, unless executed, is void.'

There is no California case on the point. Although section 1534 does not specify any time except the ten-day limit, section 1529 of the Penal Code requires that the warrant be substantially in the form described in the section, and this form includes the following command by the magistrate to the peace officer: '* * * you are therefore commanded * * * to make Immediate search on the person * * * (or in the house situated * * for the following property: * * * and if you find the same or any part thereof, to bring it Forthwith before me.' (Emphasis supplied.) Thus, the search is to be immediate, the search is to be for that property described in the affidavit which has also been described in the warrant, and the return is to be made forthwith. The warrant herein complies with the section. It commands immediate search. Moreover, it commands that such immediate search be in the day or nighttime.

It is impossible for us to read this statute as permitting a search the time of which is at the officer's discretion within the maximum, a search which is timed by the officer to produce property which he believes was brought to the premises subsequent to the issuing of the warrant, and the return to which is, of course, also delayed. The statute speaks of immediacy. It does not admit of delay that is calculated on the making of a more fruitful search than that which was described to the magistrate.

The terms of section 1529 and those of the warrant which was issued seem compelling to us. The words 'immediate' and 'forthwith' lose their true meaning if they be thought to relate to any time at all within ten days. But because of the newness and the importance of the question, we shall elaborate our reasoning.

Respondent argues that if the ten days be not allowed, section 1534 becomes relatively if not wholly meaningless. But that section has to do with a maximum time, and declares that after this time an unexecuted warrant is void. It does have meaning in absolutely nullifying the unexecuted warrant. It is not in conflict with section 1529, which requires promptness. In some cases, physical difficulties may delay execution. Section 1534 was enacted in 1872. To execute a warrant and to make a return in mountainous counties in the 1870's might take a ten-day period. Even now it is possible that circumstances will justify use of the maximum time. It is to be observed, too, that the authorized search may be of a Person as well as of a place, under section 1529, and it may take days to discover the person.

Although a peace officer has important duties, these are ministerial, not judicial. (Vallindras v. Massachusetts Bonding & Ins. Co., 42 Cal.2d 149, 154, 265 P.2d 907.) When a warrant, conformably with the statute, commands an immediate search, the officer may not decide on a delayed one.

The purpose of description of the property to be taken would be thwarted if the officer might delay execution until the property were removed or new property brought into the described premises. The warrant, with its careful description of the property to be seized, would in effect be converted to a mandate to seize not only that property but whatever else might be found within the premises at any time within the ten-day period, at the officer's choice, which was suspected to be contraband. The warrant, despite its formal precision, would, by its being withheld until property not described in it were available, become a blanket authorization resembling the abhorred writs of assistance which were often used in colonial times. In fact, in this particular case, on the one...