Solis v. Superior Court

63 Cal.2d 774 (1966) SIMON SIERRA SOLIS et al., Petitioners,

v.

THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

S. F. No. 22115. Supreme Court of California. In Bank.

Jan. 4, 1966. Cominos & Shostak, Lawrence Shostak and Eugene Epstein for Petitioners.

Herman W. Mintz, James Giller, David A. Himmelman and John D. Nunes, Public Defender (Alameda), and Richard M. Bryan, Assistant Public Defender, as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Thomas C. Lynch, Attorney General, Edward P. O'Brien, Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attorneys General, for Real Party in Interest.

McCOMB, J.

A writ of prohibition restraining the superior court from proceeding with the trial of defendants on charges of possession of narcotics (Health & Saf. Code, 11500) was issued by the District Court of Appeal after [775] defendants' objections to the introduction of certain narcotics into evidence at their preliminary hearing were overruled.

Facts: Narcotics introduced into evidence against defendants were obtained in a search of their home conducted by police personnel pursuant to a duly issued search warrant.

The search started about 6 p.m., and apparently concluded about 8 p.m., on December 16, 1964. The sun set before 6 p.m. on that date in the latitude here involved, and both parties are agreed that the search was technically in the nighttime.

The search warrant was issued by a magistrate the same day upon an affidavit filed by a narcotic agent, and authorized search "at any time of the day or night."

The affidavit states: "2. That on or about October 21, 1964, affiant and Mr. X, a confidential informant of the Bureau of Narcotics Enforcement whose identity is not disclosed because to do so would endanger his personal safety, discussed with one Rudy Lopez in the City of Salinas, the purchase of heroin; the said Rudy Lopez informed affiant that he knew where heroin could be purchased and directed affiant and Mr. X to drive him to 108 Hebbron Street, City of Salinas; upon arrival at 108 Hebbron Street, Rudy Lopez asked affiant how many papers of heroin he wished to buy at a price of Five Dollars ($5.00) per paper. Affiant gave Rudy Lopez Ten Dollars ($10.00) and told him he wanted two (2) papers of heroin; affiant observed Lopez after delivery of the money walk to a house located on the premises at 108 Hebbron Street known to affiant as the residence of Simon Solis, said house being one of three buildings located at 108 Hebbron and being the most southerly building on said premises; affiant observed Lopez leave the house about five minutes after he entered and return to where affiant was awaiting Mr. X a short distance away on the west side of Hebbron Street; Lopez then delivered to affiant two (2) papers of heroin."