People v. Cletcher
People v. Cletcher
Opinion of the Court
Opinion
Defendant appeals from a judgment entered on his plea of nolo contendere (receiving stolen property) subsequent to denial of his motion to suppress evidence. The sole appellate issue is whether the affidavit in support of the search warrant sets up sufficient facts to establish good cause for nighttime service.
The following facts were recited in the affidavit of Deputy O’Reilly. On January 28, 1979, and at subsequent times, approximately $10,450 worth of ancient art pieces was stolen from the residence of Anthony Brackney in Goleta. At all said times defendant also lived in Brackney’s home. One of the stolen items was a “one-of-a-kind” pre-Columbian mummy mask. On November 5, 1979, after defendant moved from the Brackney residence, he (Deputy O’Reilly) contacted defendant at his new residence, an apartment in Santa Barbara, and interviewed him concerning the thefts; defendant denied any knowledge of or involvement in the crimes.
About 6:30 p.m. on February 5, 1981, Brackney went to defendant’s apartment to talk to him about a tennis match that defendant had missed several weeks earlier; he parked his car on the street and walked down the driveway on the south side of the building to use the rear entrance as he knew defendant’s apartment would be in the rear of the building; as he approached the top of the stairs outside of defendant’s apartment, Brackney glanced through an open window and saw his stolen pre-Columbian mummy mask on a bookcase shelf against the east wall of defendant’s apartment; he was on a stairway and hallway area of the building which allows access to all apartments on the ground floor. When Brackney observed his art piece he made no contact with defendant and instead left and contacted Deputy O’Reilly at 8 p.m. and informed him of what he had observed.
At 8:30 p.m. Deputy O’Reilly commenced preparation of the affidavit and search warrant; thereafter he had to locate and consulted with a deputy district attorney concerning the warrant; he then had to locate the magistrate (Judge Slater) and took the documents to him where he swore to and subscribed the affidavit in the presence of the magistrate at 12:05 a.m. on February 6, and the search warrant was issued. The magistrate found good cause for nighttime service (§ 1533, Pen. Code) and directed that the search warrant could be served “at any time of the day or night.”
Relying on People v. Watson (1977) 75 Cal.App.3d 592 [142 Cal.Rptr. 245] appellant contends that the affidavit failed to establish good cause for nighttime service in that the language of Deputy O’Reilly’s allegation
In People v. Watson, supra, 75 Cal.App.3d 592, the magistrate indorsed the search warrant for nighttime service simply on the basis of a police officer’s unsworn oral statement that the defendant did not get
Although here a separate averment regarding the necessity for nighttime service was made by Deputy O’Reilly, section 1533, Penal Code
It is our view that the affidavit read in a commonsense manner and as a whole contains sufficient facts and inferences from which the magistrate could reasonably conclude that the interests of justice were best served by the authorization of nighttime service. (People v. McCarter, supra, 117 Cal.App.3d 894, 906-907 [to prevent a “contemplated” murder]; People v. Zepeda, supra, 102 Cal.App.3d 1, 6-7 [“to prevent the potential premature destruction” of stolen money]; Nunes v. Superior Court, supra, 100 Cal.App.3d 915, 938 [“stolen motorcycle parts might be sold or removed”]; People v. Flores (1979) 100 Cal.App.3d 221, 234 [160 Cal.Rptr. 839] [“to prevent removal of [narcotics] by possible accomplices”]; In re Donald R., supra, 85 Cal.App.3d 23, 26 [“distinct possibility that the [stolen property] might disappear by the next morning”]; People v. Mardian, supra, 47 Cal.App.3d 16, 35 [“inference that contraband is soon to be removed”].) In In re Donald R. (1978) 85 Cal.App.3d 23 [149 Cal.Rptr. 152], the court distinguished People v. Watson (1977) 75 Cal.App.3d 592 [142 Cal.Rptr. 245] “because of the distinct possibility that the evidence might disappear by the next morning” (p. 26; italics added), as did the court in Nunes v. Superior Court (1980) 100 Cal.App.3d 915 [161 Cal.Rptr. 351], “Unlike Watson, however, the officer in this case recounted facts tending to suggest that stolen motorcycle parts might be sold or removed from the subject premises.” (P. 938; italics added.)
The magistrate reasonably could read the affidavit in support of the search warrant in this light: Defendant knew of the thefts and previously had been questioned concerning them by Deputy O’Reilly; at that time no stolen items were observed in defendant’s apartment; over a year later defendant felt safe enough to keep the stolen art pieces in his apartment in Santa Barbara some distance from Brackney’s home in Goleta. When Brackney went to the apartment he parked his car on the street and walked down the driveway on the south side of the building to the rear; he walked in a common hallway area and up stairs which allowed access to other apartments exposing his presence to the view of other occupants of the apartment house and to defendant especially when at top of the stairs Brackney stopped, leaned over and looked into defendant’s apartment through the window. It was dark outside (6:30 p.m., Feb. 5) but night lights were on in and about the premises and a
As stated by the juvenile court and adopted by this court in In re Donald R. (1978) 85 Cal.App.3d 23, 26 [149 Cal.Rptr. 152], “‘not only are the People of the state .. . entitled to have some of the evidence of what was taken in the burglary, . .. they are also entitled to have as much of the evidence as possible... .’ (Italics added.)” (Fn. omitted.)
Likewise there is no merit in appellant’s contention that inasmuch as Brackney did not see, hear or have any sense of defendant’s presence in the apartment, Deputy O’Reilly’s averment that “there is a possibility that Brackney was seen by Cletcher” is false and must be stricken. First, Deputy O’Reilly merely alleged that he “feels” there is a possibility that Brackney was seen by defendant and second, the fact that the
The judgment is affirmed.
Spencer, P. J., and Cooperman, J.,
A petition for a rehearing was denied July 13, 1982, and appellant’s petition for a hearing by the Supreme Court was denied August 11, 1982.
Brackney’s testimony disclosed that defendant rented a room in his house for about a year and one-half; they played tennis and defendant did not appear for a match; he tried to call defendant but the phone was out of order and after several other attempts
“Your affiant also feels there is a possibility that Brackney was seen by Cletcher and that Cletcher may attempt to dispose of or conceal the stolen property if it is not immediately seized.”
“Upon a showing of good cause, the magistrate may, in his discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 o’clock a.m. and 10 o’clock p.m.”
Assigned by the Chairperson of the Judicial Council.
Reference
- Full Case Name
- THE PEOPLE, and v. DALE EDWARD CLETCHER, and
- Cited By
- 1 case
- Status
- Published