People v. Cletcher

California Court of Appeal Jun 16, 1982 No. 40727Published

Before: Lillie

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Holding. The court held that a magistrate's authorization for nighttime service of a search warrant is proper if the affidavit, read as a whole, supports a reasonable inference that the interests of justice are served by such service.

Issues

Whether the affidavit in support of the search warrant established sufficient good cause for nighttime service under Penal Code section 1533.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If an affidavit, read in a common sense manner and as a whole, reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service, provision for such service in a warrant is proper.”

“Absent an abuse of discretion the magistrate's finding of reasonable necessity for nighttime service will not be disturbed on appeal.”

132 Cal.App.3d 878 (1982) 183 Cal. Rptr. 480 THE PEOPLE, Plaintiff and Respondent,

DALE EDWARD CLETCHER, Defendant and Appellant.

Docket No. 40727. Court of Appeals of California, Second District, Division One.

June 16, 1982. [879] COUNSEL

Laura Goldin, under appointment by the Court of Appeal, for Defendant and Appellant.

[880] George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Roy C. Preminger and Robert D. Breton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LILLIE, J.

Defendant appeals from a judgment entered on his plea of nolo contendere (receiving stolen property) subsequent to denial of his motion to suppress evidence. The sole appellate issue is whether the affidavit in support of the search warrant sets up sufficient facts to establish good cause for nighttime service.

The following facts were recited in the affidavit of Deputy O'Reilly. On January 28, 1979, and at subsequent times, approximately $10,450 worth of ancient art pieces was stolen from the residence of Anthony Brackney in Goleta. At all said times defendant also lived in Brackney's home. One of the stolen items was a "one-of-a-kind" pre-Columbian mummy mask. On November 5, 1979, after defendant moved from the Brackney residence, he (Deputy O'Reilly) contacted defendant at his new residence, an apartment in Santa Barbara, and interviewed him concerning the thefts; defendant denied any knowledge of or involvement in the crimes.

About 6:30 p.m. on February 5, 1981, Brackney went to defendant's apartment to talk to him about a tennis match that defendant had missed several weeks earlier; he parked his car on the street and walked down the driveway on the south side of the building to use the rear entrance as he knew defendant's apartment would be in the rear of the building; as he approached the top of the stairs outside of defendant's apartment, Brackney glanced through an open window and saw his stolen pre-Columbian mummy mask on a bookcase shelf against the east wall of defendant's apartment; he was on a stairway and hallway area of the building which allows access to all apartments on the ground floor. When Brackney observed his art piece he made no contact with defendant and instead left and contacted Deputy O'Reilly at 8 p.m. and informed him of what he had observed.[1] Based upon the foregoing facts

People v. Cletcher

AI Brief

OPINION

LILLIE, J.

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