Opinion
For Opinion on Hearing, see 48 Cal.Rptr. 169, 48 P.2d 945.
Cominos & Shostak, Lawrence Shostak, Salinas, for petitioners.
Thomas C. Lynch, Atty. Gen. of State of California, Albert W. Harris, Jr., robert R. Granucci, Deputy Attys. Gen., San Francisco, for real party in interest.
TAYLOR, Justice.
Defendants Solis (husband and wife) having unsuccessfully moved in the superior court for a dismissal for lack of probable cause under Penal Code, section 995, now petition this court for a writ of prohibition under Penal Code, section 999a to restrain their pending trial on an information charging them with violation of section 11500 of the Health and Safety Code (possession of narcotics). Defendants contend that the narcotics introduced into evidence at the preliminary examination were secured by an unlawful search and seizure and that their arrests were illegal.
The pertinent facts are as follows: At approximately 6:00 p. m. on the evening of December 16, 1964, State Narcotic Agent Armenta and other officers, pursuant to a search warrant obtained that day, entered and searched defendants' home. They discovered heroin therein, arrested defendants and subsequently filed a complaint against them for possession of narcotics.
Armenta's affidavit in support of the search warrant alleged, inter alia, that on or about October 21, 1964, one Rudy Lopez informed affiant and a confidential informant that heroin could be purchased at defendants' residence, 108 Hebbron Street, Salinas; that the three then drove to that address where affiant gave Lopez $10; that Lopez entered defendants' home, returned in about five minutes and delivered two papers of heroin to affiant; that prior to and since October 21, affiant had observed known narcotic users call at defendants' residence; that Salinas police officers and narcotic users have informed affiant that Simon Solis is a distributor of narcotics and that affiant has reasonable cause to believe that Simon Solis is a distributor of narcotics and that affiant has reasonable cause to believe that Based on this affidavit, the court ordered the immediate search of the person and premises of Simon Solis 'at any time day or night.'
The crucial question is whether the affidavit legally justifies the court's warrant allowing the nighttime search and arrest made in this case. If the affidavit is not sufficient, the evidence upon which defendants are charged was obtained by an illegal search and seizure and cannot be relied upon in support of a criminal complaint (People v. Reeves, 61 Cal.2d 268, 28 Cal.Rptr. 1, 391 P.2d 393).
Prior to 1961, Penal Code, section 1533 provided: 'The magistrate must insert a direction in the warrant that it be served in the day-time, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be searched at any time of the day or night.' (Emphasis supplied.)
In 1961, section 1533 was amended to read as follows: '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.' (Emphasis supplied.)
Thus, whereas previous to 1961 the affidavit had to be positive that the item was on the person or property to permit a nighttime search, such a search is now permitted if 'good cause' therefor is shown in the affidavit.
There are no California cases defining the use of the term 'good cause' in section 1533. It is clear, however, from a reading of that section, both before and after its 1961 amendment, that the Legislature was reluctant to approve night searches in the absence of some indication that a day search would not serve the required purpose. Although the 1961 amendment permits the issuing magistrate greater discretion in the matter, some reasonable showing must nevertheless be made to support a nighttime search.
Had the affidavit stated that known narcotic addicts frequented the premises at night or that defendants were more likely to be present during the night hours, the warrant might well have been justified. But the affidavit does not relate any acts occurring on the premises at night nor any necessity that the warrant be served at night. In fact, it does not request the issuance of a warrant serviceable at night. The bare allegation of a continuous pattern of serious criminal activity does not, as contended by the Attorney General, relate to the necessity of serving the warrant at night. It does not even present the issue to the magistrate.
No cause having been stated in the affidavit for the issuance of a warrant serviceable at night, we can only conclude that the affidavit was devoid of the 'good cause' required under section 1533. The evidence upon which the information in this case was predicated having thus been obtained by an illegal search and seizure, the defendants' trial must be restrained (Castaneda v. Superior Court, 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641; Badillo v. Superior Court, 46 Cal.2d 269, 271, 294 P.2d 23) and we need not consider the remaining issues raised in defendants' petition.
Let a writ of prohibition issue.
SHOEMAKER, P. J., and AGEE, J., concur.