People v. Chavez

Opinion

STONE, P. J.

Following denial in the trial court of a motion to suppress evidence under Penal Code section 1538.5, defendant entered a plea of guilty to violation of Health and Safety Code section 11500.5, possession

[885]

of heroin for sale. On this appeal, he challenges the ruling of the trial court on his section 1538.5 motion. Notwithstanding the entry of the guilty plea, a review of the search and seizure contention may be had. (Pen. Code, § 1538.5, subd. (m);

People

v.

West,

3 Cal.3d 595, 601 [91 Cal.Rptr. 385, 477 P.2d 409].)

Defendant contends the search of his residence was invalid because of the circumstances surrounding the execution of the affidavit which was the basis for the issuance of the search warrant. No attack is made upon the substance of the affidavit or its form.

The circumstances surrounding the issuance of the warrant are as follows: Narcotics Agent Thomas L. Carl prepared an affidavit setting forth, his reasons for believing that defendant was in possession of heroin and narcotic paraphernalia at his residence in Delano, California. Agent Carl appeared at the municipal court clerk’s office with the affidavit on May 28, 1970. The clerk asked Agent Carl: “Do you swear that the contents of this affidavit are true and correct to the best of your knowledge so help you God?” He answered: “Yes.” The clerk then had him sign the affidavit, which she took to Judge Nairn. Out of the presence of affiant, who waited in the clerk’s outer office, Judge Nairn read and approved the affidavit and issued a search warrant.

Penal Code section 1526, subdivision (a), provides that “The magistrate may, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and must take his affidavit or their affidavits in writing, and cause same to be subscribed by the party or parties making same.”

Defendant emphasizes the language “must take his affidavit,” giving it a literal interpretation, and insists that the magistrate must personally “take” the affidavit. Here, the clerk of the court administered the oath and the agent, as affiant, subscribed the affidavit in her presence. She then took the affidavit to the magistrate.