People v. Stevenson

[917]

Opinion

BEACH, J.

Earl Lee Stevenson was charged with violation of section 11351 of the Health and Safety Code, possession for purpose of sale of heroin. His motion to traverse the search warrant and suppress the evidence obtained thereby was granted, and the information was dismissed pursuant to section 1385 of the Penal Code. The People appeal from the order suppressing evidence and dismissing the case.

Facts

The search warrant in the instant case was obtained and executed on Wednesday, September 10, 1975. The return was signed by the magistrate on September 22, 1975. The warrant was attacked in the trial court on the grounds that there was no showing justifying nighttime service, that the warrant was defective because not signed by a representative of the district attorney’s office, that the warrant was not returned within 10 days pursuant to section 1534 of the Penal Code, and that there was not sufficient probable cause to justify issuance of the search warrant. The trial court apparently granted the motion solely on the basis that there was failure to comply with the 10-day period specified in Penal Code section 1534 for return of the search warrant.

Contentions on Appeal:

The People contend:

1. The provisions of Penal Code section 1534 were satisfied.

2. The provisions of Penal Code section 1534 as it relates to the preparation of the return to search warrants are ministerial acts only and do not affect the validity of such warrant.

Respondent contends that where a search warrant was executed on the same day as issued and the filing of the return was inexplicably and inexcusably delayed an additional 12 days, such delay exceeds the statutoiy limits and the trial court properly suppressed the evidence.

Discussion:

The trial court erred in suppressing the evidence and dismissing the case.

[918]