Nunes v. Superior Court

• Decision Date: 10 January 1980
• Citation: 161 Cal.Rptr. 351,100 Cal.App.3d 915
• Court: California Court of Appeals Court of Appeals
• Parties: Gilbert Walter NUNES, Petitioner, v. The SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 5071.

Page 351

161 Cal.Rptr. 351

100 Cal.App.3d 915

Gilbert Walter NUNES, Petitioner, v. The SUPERIOR COURT OF STANISLAUS COUNTY, Respondent The PEOPLE, Real Party in Interest.

Civ. 5071.

Court of Appeal, Fifth District, California.

Jan. 10, 1980.

Richard J. Palmer, Modesto, for petitioner

No appearance for respondent.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., William G. Prahl and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for real party in interest.

OPINION

FRETZ, ^* Associate Justice (assigned).

Petitioner seeks a writ of prohibition or mandate directed to the trial court to cause certain evidence to be suppressed. ¹ Petitioner was charged by an information filed in superior court with 11 violations of law. Most of the charges were supported by evidence seized during searches conducted under authority of three warrants. Petitioner's motion to suppress was denied.

STATEMENT OF THE FACTS

First Warrant.

At about 5 p. m. on May 10, 1979, Modesto Police Officer Gary Vance met fellow officer Smith at the police station for the purpose of drafting an affidavit for a search warrant for petitioner's residence at 2708 Garvey Avenue in Modesto to seize a stolen motorcycle. The affidavit and other necessary documents were completed at about 11 p. m. and were taken to a magistrate's residence at about 11:30 p. m. The affidavit requested authorization for nighttime service of the warrant, and Officer Vance informed the judge that officers were standing by to serve the warrant.

The judge signed the warrant and told Officer Vance, "Go get em." The search warrant was served on petitioner at the residence at about 12:30 a. m. on May 11. Officer Vance did not realize that the judge had failed to initial the blank space on the printed search warrant form authorizing nighttime service of the warrant until the next morning. When Officer Vance served the warrant, petitioner did not ask any questions about the document or object to the search of his residence.

During the search of May 11 (the first of three searches of petitioner's home), the officers seized certain motorcycle parts, bolt cutters and identification papers pursuant to the search warrant. In addition, a nine-millimeter pistol and plastic bags containing controlled substances not described in the warrant were seized from a garbage can containing the motorcycle parts; one marijuana plant growing in the backyard was also seized, though not described in the warrant.

Second Warrant.

On May 11, 1979, Modesto Police Officer Jim Waterman executed an affidavit in support of a request to obtain another search warrant to search petitioner's home. Officer Waterman set forth in his affidavit the descriptions of stolen property that had been seen in petitioner's garage earlier that day by the officers who had executed the first search warrant. He also incorporated by reference other stolen property described in a police report that he attached to his affidavit. Officer Waterman served this second search warrant on petitioner on May 12. He gave petitioner the search warrant, but not the referenced affidavit and its attached police report. ² Petitioner did not ask what property the officers were seeking to seize. Officer Waterman seized, among other things, an air compressor, compressor hose, staples, blue nails, a staple gun (all described in the affidavit (count IX)), and a checkbook for a "Robert George" (not described, but not challenged by this petitioner) during this second search (count V).

Officer Waterman also seized a toolbox during this second search on May 11 because it matched the description of a toolbox that was reported stolen in April 1979. Officer Waterman had been investigating this theft. Inside the toolbox were screwdrivers with the name "Robert Peireira" on them (count VIII).

In addition, Officer Waterman seized other items based on their similarity to materials reported stolen and described in police documents which were not attached to the second search warrant. Among these items were a green toolbox and hand tools (count VII). The officer also took a red toolbox and four utility belts into his custody based on oral descriptions of stolen property given by Mr. Ron Wellwood, the victim listed in count IX of the verified complaint and information.

Third Warrant.

On May 15, 1979, Officer Waterman obtained a third search warrant for the search of petitioner's residence. Officer Waterman attached copies of six police reports of thefts which described the property to be seized. The court authorized the officers to seize "stolen property as indicated in the Affidavit and attached police reports, . . . " The search warrant was served May 15 at the residence. The affidavit and police reports were not shown to the person on whom service was made. Officer Waterman found and seized claw hammers, electrical cord and open-end wrenches (count VI) and numerous other plumbing and electrical items.

Petitioner alleges numerous errors were committed in obtaining and executing the three warrants under consideration, thereby prompting the present writ.

DISCUSSION

I. Did the magistrate's failure to specifically authorize a nighttime search through an unequivocal written direction vitiate the On the first warrant, it is undisputed that Judge Stone did not initial the blank on the warrant to authorize nighttime service. Officer Vance, one of the police detectives appearing before the magistrate, testified that he arrived at Judge Stone's residence at 11:30 on the evening of May 10, 1979, indicating that "we (have) several officers standing by to serve this Search Warrant." After signing the warrant, Judge Stone stated to the officer, "Go get em." In addition, Officer Vance indicated that he did not notice the magistrate's failure to initial nighttime service and, further, that petitioner did not ask any questions about the search warrant when it was read to him.

search and seizure undertaken pursuant to the warrant dated May 10, 1979?

Judge Stone executed an affidavit on June 8, 1979, which was admitted into evidence at petitioner's preliminary hearing without objection, and which contains the following statement:

"The Affidavit in support of the Search Warrant set forth a request for nighttime service. I considered this request, and it was my intention when I signed the Search Warrant to authorize nighttime service. My failure to initial the last sentence of the Search Warrant authorizing nighttime service was a clerical oversight. It was my understanding at the time I signed the Search Warrant and Affidavit that the Warrant was going to be executed promptly that same evening during the nighttime."

Petitioner moved to suppress evidence obtained from the search warrant on the ground that there was no separate, written authorization by the magistrate supporting nighttime service. In denying petitioner's motion, the trial court found that the omission was merely a clerical error on the part of the judge; that he intended and knew that it was going to be served at night. At the special hearing subsequently held by the superior court, petitioner's motions to suppress evidence and dismiss the information were also denied. The court considered the reasoning of such cases as People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76, 141 Cal.Rptr. 917 and Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, 115 Cal.Rptr. 893. The court then found that (1) Judge Stone clearly intended nighttime service; (2) petitioner was informed of the nighttime search by the officer who read the warrant; and (3) the police officers demonstrated no bad faith in reasonably thinking the warrant endorsed nighttime service.

Petitioner argues that the evidence seized during the first search should have been suppressed because the magistrate failed to indicate his affirmative authorization of night service by initialing the night direction on the face of the warrant. Since the second and third warrants were based upon evidence discovered in the first search, it is petitioner's further contention that all evidence should be suppressed if the first warrant was defective.

Penal Code section 1533 provides that a magistrate has discretion, upon a showing of good cause, to insert a direction in a search warrant that it may be served at any time of the day or night. If no such direction is inserted, the statute declares that the warrant can only be served between the hours of 7 a. m. and 10 p. m. The court in Sternberg v. Superior Court, supra, 41 Cal.App.3d at pages 288-289, 115 Cal.Rptr. 893, 898, stated the concern of courts and identified the legislative purpose underlying Penal Code section 1533:

"In the nighttime search cases the courts have been concerned with the magistrate's failure to exercise his discretion to authorize a nighttime search when he uses a form, similar to that prescribed in the form of warrant prescribed in section 1529, reading ' . . . you are, therefore, commanded to make immediate search in the daytime (or at any time of the day or night, good cause being shown therefor) . . . ' without any deletions. (See Rogers v. Superior Court (1973) 35 Cal.App.3d 716, 719-720, 111 Cal.Rptr. 9; Powelson v. Superior Court (1970) 9 Cal.App.3d 357, 362-363, 88 Cal.Rptr. 8; Call v. Superior Court (1968) 266 After examining the case law which explores the limits of Penal Code section 1533, it appears that the lower court properly rejected petitioner's objection to the nighttime service authorized in the first warrant.

Cal.App.2d 163, 164, 71 Cal.Rptr. 546; and People v. Mills (1967) 251 Cal.App.2d 420, 421-423, 59 Cal.Rptr. 489. Cf. Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, [100 Cal.App.3d 923] 786-787, 95 Cal.Rptr. 213.) In Rogers v. Superior Court, supra, the court summarized as follows: ' . . . the legislative purpose behind section 1533 is two-fold: (1) to require the magistrate to...