Powelson v. Superior Court

Decision Date01 July 1970
CourtCalifornia Court of Appeals Court of Appeals
PartiesBruce Dennis POWELSON, David Phillips Winters, Kenneth Brian Gee, Mario Adrian Ajello, Anne Marian Nygard, Dorothy Frances Gee and Beverly Elaine Bastian, Petitioners, v. The SUPERIOR COURT OF the COUNTY OF YOLO, State of California, Respondent; and The PEOPLE of the State of California, Real Party in Interest. Civ. 12558.

Thomas A. Purtell, Woodland, and David G. Dunford, Modesto, for petitioners.

Thomas C. Lynch, Atty. Gen., by Edward A. Hinz, Jr., and Willard F. Jones, Deputy Attys. Gen., Sacramento, for real parties in interest.

BRAY, Associate Justice (Assigned).

Petitioners seek a writ of mandate to compel the Yolo County Superior Court to change its ruling in regard to search warrants used in obtaining evidence against petitioners in proceedings under indictment 3791 of that court.

QUESTIONS PRESENTED

1. Three of the search warrants are invalid for lack of supporting affidavits in writing.

2. All four search warrants were served at night without authorization therefor.

RECORD

On September 15, 1969, Lieutenant Richard MacKenzie of the Yolo County Sheriff's Office and Officer Thomas Elliott of the Davis Police Department appeared in the Justice Court of the Davis Judicial District before Judge Charles McGahan and requested three search warrants for the search of premises located at 1509 Drexel Drive, 1217 Olive Drive and 1032 Olive Drive, Davis, California. To establish probable cause, the magistrate between 3:35 and 4:09 p.m. took extensive sworn testimony from said officers in the presence of a court reporter. No affidavits were made or presented. Search warrants were issued.

Between 8:30 and 10:00 p.m., the same evening, Officer Elliott appeared before Judge McGahan and requested a fourth search warrant for a fourth address. 1 Due to the absence of a court reporter, a written affidavit incorporating the afternoon's sworn testimony, as well as other matters, was filed. A search warrant was issued. All four search warrants were served at night on the premises described, certain contraband was seized, and petitioners were arrested. Indictment 3791 followed, charging defendants with various violations of the drug laws.

On October 24, petitioners moved under section 1538.5 of the Penal Code to suppress the evidence taken in the searches. The motion was denied. Thereupon petitioners brought this proceeding to determine the validity of the search warrants and the searches.

1. Failure to file affidavits in writing.

Section 1525, Penal Code, provides: 'A search warrant cannot be issued but upon probable cause, Supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.' (Emphasis added.)

Section 1526: 'The magistrate May, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and Must take his Affidavit or their affidavits in writing, and cause same to be subscribed by the party or parties making same.' 2 (Emphasis added.)

It would seem that no language could be clearer than that in these two sections as to what is required to get a search warrant--an affidavit in writing subscribed by the person seeking the warrant. While the magistrate May also examine the person on oath, as was done in the instance of the three warrants, he Must take the person's affidavit in writing, subscribed by that person.

Respondent points to no California authority holding that a search warrant may be issued without an affidavit in writing being taken by the magistrate.

Moreover, Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, holds, pages 873--874, 34 Cal.Rptr. 251, page 262, that, although under section 1526 the magistrate may examine on oath the person seeking the search warrant 'for the purpose of soliciting additional facts' he Must take the affidavit of such person in writing and cause it to be subscribed by the person.

The Attorney General contends that, since in some jurisdictions 'affidavit' and 'deposition' have been interpreted synonymously an 'oral sworn statement' by some verbal legerdemain may also be interpreted to be synonymous with 'affidavit,' in spite of the fact that an oral sworn statement differs from both a deposition and an affidavit in that the former is not in writing, and an affidavit is a sine qua non for the issuance of a search warrant. Assuming, although it is a violent assumption, that a deposition, a sworn statement and an affidavit are synonymous, the deposition and statement would still have to be subscribed before they could comply with section 1526.

The history of section 1526, when viewed with the clear language of that section, demonstrates that the People's interpretation of that section is erroneous. Before 1957, the magistrate was required to take the deposition of the person before issuing the warrant (§ 1526, enacted 1872). The 1957 amendment replaced the word deposition with the word affidavit to make clear that a sworn statement of facts contained in an affidavit (not a question and answer type of proceeding) was required. This amendment indicates that the Legislature placed importance on the requirement that a written signed document containing facts tending to establish probable cause be available before the magistrate could issue the warrant. The 1957 amendment also placed within the discretion of the magistrate the question of whether also to examine, under oath, the person seeking the warrant. Prior to this amendment, the magistrate was Required to examine the person under oath. The problem here presented is not one of 'technicalities without substance' but one of clear legislative command.

The sworn statement was not an affidavit and the three warrants based thereon are void.

The People make the rather interesting but illogical contention, which does not justify discussion, that the affidavit filed in regard to the fourth warrant could be considered as basis ex post factor for the already issued three warrants as to which no affidavits had been filed. 3

2. Night service of warrants.

Petitioners contend that all four warrants are fatally defective for night service because of their respective language. We agree.

Section 1533 provides what a search warrant must direct as to the time of its service. 'On a showing of good cause therefor, the magistrate may, in his discretion, insert a direction in the warrant that it may be served at any time of the day or night; in the absence of such a direction, the warrant may be served only in the daytime.'

The pertinent portions of all four search warrants provided '* * * you are, therefore, commanded to make immediate search in the daytime (At any time of the day or night, good cause being shown therefor).' 4 (Emphasis added.)

People v. Mills (1967) 251 Cal.App.2d 420, 422, 59 Cal.Rptr. 489, 490, points out 'The requirements of search warrant statutes are mandatory in every material respect. (Citations.)' In that case, the direction for time of service of the search warrant was practically in the exact alternative language as is the direction in the warrants in the instant case. The reviewing court there held that the form set forth in Penal Code, section 1529 obviously anticipates that when the judge has decided to authorize a night search, he will strike out superfluous words so as to cause the warrant to reflect his decision. The court held further '(t)he mandatory requirement that the magistrate exercise his discretion by inserting a direction has not been met. Because the warrant was not made to conform to either of the options open to the magistrate, this court cannot determine whether or not he exercised the discretion vested in him by the statute.' The court held that the warrant on its face was incompetent to authorize a night search. Call v. Superior Court (1968) 266 Cal.App.2d 163, 164, 71 Cal.Rptr. 546, dealt with 'a form warrant containing alternative language authorizing either a day or unlimited search' in which the magistrate 'did not mark out one of the options.' (p. 164, 71 Cal.Rptr. p. 546.) In issuing a writ of mandate suppressing the evidence obtained at night under authority of the warrant, the court held that the warrant...

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13 cases
  • People v. Goldberg
    • United States
    • California Court of Appeals
    • 25 Octubre 1984
    ...that the examination cannot be deemed the equivalent of an affidavit, because per Theodor, supra, and Powelson v. Superior Court (1970) 9 Cal.App.3d 357, 360-61, 88 Cal.Rptr. 8, an oral affidavit must be made in narrative form, rather than the question and answer format used here. We disagr......
  • Theodor v. Superior Court, Orange County
    • United States
    • California Court of Appeals
    • 23 Noviembre 1971
    ...of a warrant. We disagree. Although a search warrant must be supported by affidavit (Penal Code, § 1525; Powelson v. Superior Court, 9 Cal.App.3d 357, 360-361, 88 Cal.Rptr. 8), or, in the alternative by an oral statement which is recorded and transcribed (Penal Code, § 1526, subd. (b)), the......
  • Theodor v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 28 Septiembre 1972
    ......251 is not helpful. There the court held that the affidavit in question was insufficient and that the oral examination of the witness was also insufficient to support the issuance of the warrant. .         Likewise, Powelson v. Superior Court (1970) 9 Cal.App.3d 357, 360--362, 88 Cal.Rptr. 8, 9, also relied upon by defendant, is inapposite. There, in order to establish probable cause, the magistrate 'took extensive sworn testimony from said officers in the presence of a court reporter,' but no affidavits were ......
  • People v. Cook
    • United States
    • United States State Supreme Court (California)
    • 8 Septiembre 1978
    ...authorization to do so (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, 362-364, 88 Cal.Rptr. 8; Call v. Superior Court (1968) 266 Cal.App.2d 163, 71 Cal.Rptr. 546; People v. Mills (1967) 251 Cal.App.2d 420, 59......
  • Request a trial to view additional results

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