Rogers v. Superior Court

• Decision Date: 30 November 1973
• Citation: 35 Cal.App.3d 716,111 Cal.Rptr. 9
• Court: California Court of Appeals Court of Appeals
• Parties: George Dalton ROGERS et al., Petitioners, v. SUPERIOR COURT of SAN LUIS OBISPO COUNTY, Respondent, The PEOPLE, Real Party in Interest. Civ. 42880.

Page 9

111 Cal.Rptr. 9

35 Cal.App.3d 716

George Dalton ROGERS et al., Petitioners, v. SUPERIOR COURT of SAN LUIS OBISPO COUNTY, Respondent, The PEOPLE, Real Party in Interest.

Civ. 42880.

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

Nov. 30, 1973.

Rehearing Denied Dec. 19, 1973.

Hearing Denied Jan. 24, 1974.

Hovis, Sherr & del Campo and Lane Stuart, San Luis Obispo, for petitioners.

Robert N. Tait, Dist. Atty., County of San Luis Obispo and Robert L. King, Deputy Dist. Atty., for real party in interest.

No appearance for respondent Court.

KINGSLEY, Associate Justice.

Petitioners are charged in respondent court with multiple counts of receiving stolen property, in violation of section 496 of the Penal Code; petitioner Reese is also charged in one count with possession of heroin, in violation of section 11351 of the Health and Safety Code. The evidence on which those charges are based was obtained by a search of petitioner Roger's residence, purportedly on the authority of a search warrant. The sufficiency of the warrant was duly attacked in the trial court by a motion made pursuant to section 1538.5 of the Penal Code. The motion was denied and petitioners sought review in this court under subdivision (i) of section 1538.5. We issued an alternative writ of prohibition. The matter has been briefed and argued. We direct the issuance of a peremptory writ of mandate.

The warrant was issued at about 11 p.m., on the evening of May 17, 1973; it was served at about 11:30 p.m., on that same evening. The magistrate who issued the warrant is blind and it was necessary for the persons applying for the warrant to read to him the affidavit in support of the application and the form of warrant. The warrant form is a mimeographed or Xeroxed form, containing, at the appropriate place, the words and symbols as follows: '. . . you are, therefore, commanded to make immediate search in the daytime (at any time of the day or night, good cause being shown therefor) . . .' No indication appears on the face of the warrant, as issued, to indicate that either alternative time of search had been selected.

Admittedly, the affidavit for the warrant contained statements of fact which would justify a magistrate, in his discretion, in ordering a nighttime search and the affidavit also contains a specific prayer for such authority. At the hearing on the motion under section 1538.5 the magistrate testified as to his intention with reference to the time of search. At one point he testified as follows:

'I don't remember specifically, but my recollection of the thing was that there was both nighttime and daytime on there, and after hearing the affidavit together with what conversation there was A few minutes later he testified:

with reference to it, I directed that it be served forthwith, which would have meant nighttime.'

'I think I directed that if it were going to be used at night, that the 'Daytime' should be stricken out, and then you made the correction to initial it, if I remember correctly.'

Why no action was taken by the scrivener to delete any of the language from the warrant form is not explained.

I

Section 1533 of the Penal Code provides as follows: 'Upon a showing of good cause, the magistrate may, in his discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 o'clock a.m. and 10 o'clock p.m.' The parties cite to us and rely on three cases, to wit: Powelson v. Superior Court (1970) 9 Cal.App.3d 357, 88 Cal.Rptr. 8; Call v. Superior Court (1968) 266 Cal.App.2d 163, 71 Cal.Rptr. 546; and People v. Mills (1967) 251 Cal.App.2d 420, 50 Cal.Rptr. 489. We have read and considered those cases. None are exactly in point. In Call and in Mills, where warrants in the same form as that here before us were issued, the record was silent as to any affirmative determination by the magistrate as to the alternatives, although in Call it did appear (as in this case) that the warrant was applied for and issued at night. In Powelson, the magistrate testified at the hearing on the 1538.5 motion that he had, in fact, determined to authorize a nighttime search and believed he had indicated that fact by not deleting one of the alternatives.

As we have pointed out above, the testimony of the magistrate in the case at bench was, to say the least, equivocal. If (as the latter part of his quoted testimony suggests) he intended to leave the language unchanged, Powelson is directly in point; if, as that testimony also would suggest, he intended to leave it to the discretion of the applicant to search at night or later, Call and Mills would seem to control, since the statute requires a magisterial and not a police determination. On the other hand, if the magistrate's intention was, as is suggested by the first part of the quoted testimony, the magistrate had exercised his discretion but that discretion was not reflected in the warrant. The record before us does not indicate...