People v. Mills

CHRISTIAN, J.

The People appeal from an order made under Penal Code section 995, setting aside an information which charged respondents with violation of section 11530 of the Health and Safety Code (possession of marijuana). We uphold the trial court’s determination that the evidence heard at the preliminary hearing was not sufficient to sustain an order holding the defendants to answer.

The magistrate’s order holding respondents to answer rested entirely upon evidence, admitted over objection, which had been seized in a night search under authority of a search warrant. There is no contention that the facts would have justified a search without a warrant. On the other hand the evidence, which included a small quantity of marijuana found in quarters shared by the respondents, was plainly sufficient if it was lawfully obtained; thus the sole question in this appeal is the competency of the search warrant to authorize a night search. The parties earnestly contend over the sufficiency of the affidavit presented to the magistrate by the police to justify issuance of a search warrant, the adequacy of the warrant’s description of the place to be searched, and the authority of the Los Angeles city police to execute a warrant at a place lying outside the city limits, We do not reach any of these questions because the warrant was incompetent on its face to authorize a night search.

In issuing the search warrant, the magistrate used a mimeographed form which adapts for use in Los Angeles County the form of warrant prescribed by Penal Code section 1529. The passage in the statutory form relating to the time of search reads, “. . . you are therefore commanded, in the daytime (or at any time of the day or night, as the case may be, according to Section 1533), to make immediate search. ...” This language was paraphrased in the mimeographed form used by the magistrate as follows: . . . you are, therefore,

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commanded to make immediate search in the daytime (at any time of the day or night, good cause being shown therefor) of the premises. ...” Both forms obviously anticipate that when the judge has decided whether to authorize a night search he will strike out superfluous words so as to cause the Avarrant to reflect his decision. The municipal judge did not do that in the present case.