People v. Brocard

Opinion

WALLIN, J. Appellant Juan Brocard pleaded guilty to possession for sale of cocaine (Health & Saf. Code, § 11351) after his motion to suppress [241]evidence was denied. Pursuant to Penal Code section 1538.5, subdivision (m), Brocard seeks review of the validity of a search and seizure. He claims the search warrant was void because it could not be reissued after the 10-day period for execution had expired.

On June 30, 1983, Detective Dubois of the Westminster Police Department obtained a search warrant for Brocard’s residence. The search warrant was supported by Dubois’ affidavit, which in essence stated the following: (1) a reliable informant1 said he had bought heroin from Brocard on eight occasions in the two months prior to June 6, 1983, and also said Brocard always had heroin available for sale, (2) within twenty days of the affidavit another informant said Brocard was still dealing in heroin, (3) within five days of the affidavit a third informant said he could buy heroin from Bro-card, and (4) the third informant made a controlled buy of heroin.

On July 12th Dubois presented an addendum, the original affidavit, and the original search warrant to the same magistrate. The addendum stated Dubois had been unable to serve the search warrant because he had been out of town. In pertinent part the addendum read as follows: “On 7-1-83 I received information (from an informant) that [Brocard] was picking up a kilo of cocaine and about two ounces of [heroin] from his [Brocard’s] unknown connection. ... On 7-11-83, I received information that [Brocard] had sold a half kilo of cocaine to a subject who took it to Nebraska. The Nebraska Police stopped the subject in a black Cadillac and found a loaded .38 pistol in the subject’s sock. The police also found a large amount of cocaine in the car. The name of the arrestee’s were Gonzaliz, Jamie and Rodriguez, Isora and three children. The car was a black Cadillac, license number 601LFJ. The informant stated that the cocaine was picked up from [Brocard] . . . and driven to Nebraska. Gonzaliz and Rodriguez were stopped in Lincoln, Nebraska on 7-10-83 .... I contacted a Lt. Soukup at Lincoln, Nebraska Police Department . . . and confirmed the arrests and possession of the cocaine and gun. ...”

At the bottom of the addendum was a handwritten note stating: “Subscribed and sworn to before me this 12th day of July, 1983.” It was followed by the signature of the magistrate. At the end of the search warrant appeared the handwritten notation “Warrant reissued w/addendum to affidavit 7-12-83,” and it was also followed by the signature of the magistrate.