People v. Couch

California Court of Appeal Sep 28, 1979 No. Crim. 34126Published

Before: Beach

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Holding. An untimely return of a search warrant does not require the suppression of evidence unless the defendant demonstrates that they were prejudiced by the delay. The procedural requirements for returning a warrant are ministerial, and noncompliance does not automatically trigger the exclusionary rule.

Issues

Does an untimely return of a search warrant invalidate the warrant and necessitate the suppression of evidence seized pursuant to it?

Disposition. affirmed

Quotations verified verbatim against the opinion

“We further hold that return of the warrant one day beyond the 10-day maximum set forth in section 1534, though it created a defect, did not prejudice appellant and hence did not require suppression of the evidence.”

“an untimely return of an otherwise validly executed search warrant, as is involved here, should result in the suppression of evidence only if the accused demonstrates he was in any way prejudiced by the delay in returning the warrant.”

Opinion

BEACH, J.

Appellant, who was charged with possession of marijuana for the purpose of sale, moved to quash the search warrant and to

[379]

suppress the evidence, contending that untimely return of the warrant invalidated the warrant. After denial of the motion by the trial court, appellant entered a plea of nolo contendere to the crime charged.

Facts:

The search warrant was issued on May 1, 1978, executed on May 9, 1978, and returned on May 12, 1978.

Issue on Appeal:

The only issue on appeal is whether an untimely return of a search warrant invalidates the warrant, thus necessitating suppression of the evidence seized pursuant thereto.

Discussion:

Appellate counsel have not cited any California cases dealing with this precise issue. Our own research, too, has not disclosed California authority on this exact point. In

People

Stevenson,

62 Cal.App.3d 915, 918-919 [133 Cal.Rptr. 406], this court had to decide whether a search warrant executed within the 10-day period required by Penal Code section 1534

but returned on the 12th day after its issuance invalidated the warrant. Since the 10th and 11th days fell respectively on Saturday and Sunday, both legal holidays, we held that the return of the warrant on Monday, the 12th day following the warrant’s issuance, was within the requisite 10-day period of section 1534. In

Stevenson

we declined to consider whether the return complied with the “forthwith” requirement of section 1537 since the issue had not been raised in the trial court.

Penal Code section 1534 expressly provides that a search warrant “shall be executed and returned . . . within 10 days after date of issuance.” The section further provides: “A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. . . .” Penal Code section 1537 provides that the officer must “forthwith” return the warrant. Here, the search warrant was issued on May 1, 1978, executed on Tuesday, May 9, 1978, and returned on Friday, May 12, 1978. Appellant argues that failure to make the return within the 10-day requirement of section 1534 and the further failure by the police to return the warrant “forthwith” following its execution, as

People v. Couch

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BEACH, J.

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