Charney v. Superior Court

California Court of Appeal Sep 21, 1972 No. Civ. 11425Published

Before: Brown (Gerald)

AI Brief

AI-generated · verify before citing

Holding. The court held that a search warrant issued based on a magistrate's handwritten summary of an officer's oral statements was invalid because it failed to comply with the statutory requirements for written affidavits or recorded and transcribed oral statements. Consequently, the search was unlawful and the evidence seized must be suppressed.

Issues

Whether a magistrate's handwritten summary of an officer's oral testimony satisfies the statutory requirements for issuing a search warrant under Penal Code section 1526.

Disposition. remanded

Quotations verified verbatim against the opinion

“The procedure followed by the magistrate was statutorily unauthorized and is not a proper basis to determine probable cause. In legal effect, the addendum is a nullity.”

“The sworn, recorded and transcribed statement which subdivision (b) permits to be used in lieu of a written affidavit, contemplates a word for word recording and transcription of what the witness has said.”

Opinion

BROWN (Gerald), P. J.

Peter and Elinor Charney, charged with possessing marijuana (Health & Saf. Code, § 11530), possessing marijuana paraphernalia (Health & Saf. Code, § 11555), and maintaining a place for sale of narcotics (Health & Saf. Code, § 11557), are entitled to a writ requiring the Superior Court of San Diego County to suppress evidence

[890]

because the evidence was discovered in an unlawful search. The search was unlawful because the magistrate used an improper and unauthorized procedure in determining to issue a warrant to search the Charneys’ home. We treat their petition for prohibition as one for mandate.

Facts

On the morning of March 15, 1972, narcotics officers in Ocean Beach negotiated a purchase of marijuana .from someone named “Billy” whom they had known only one day. During the negotiations Billy telephoned someone he called “Coby.” He then told Officer Jansen he [Billy] would have to get the marijuana from. Coby who lived in La Jolla.

Billy left the area alone, but was followed to the outskirts of La Jolla by another officer, who at that point lost sight of Billy’s car.

Later that day an officer saw Billy driving the car, with a passenger. The officer stopped the car and searched it, finding marijuana bricks; he arrested Billy and the passenger, “Coby.”

At the jail “Coby” identified himself as Christopher Borst and gave his address, a house in La Jolla.

An officer went to the house. Mrs. Charney answered the door. He told her he believed narcotics had been “dealt” from that address and requested permission to look around. Mrs. Charney refused to let him. The officer told her he would obtain a warrant and sent another officer for one. An officer remained while the warrant was obtained. The officers then searched the house and found marijuana.

The problem is the irregularity of the procedures used in obtaining the warrant. The affidavit given by Officer Jansen related the facts stated above up to the time the officers went to the house: Jansen concludes, “. . . based on the . . . information, I believe . . . grounds for issuance of a search warrant exist. . . .”

Charney v. Superior Court

AI Brief

More from California Court of Appeal

Related research

AI Brief