People v. Smith

Defendant appeals from a judgment by the court convicting him of possession of marijuana for sale (Health & Saf. Code, *846 § 11359). The contraband was discovered in appellant’s motel room during a search conducted pursuant to a search warrant. Appellant contends the affidavit in support of the search warrant failed to provide probable cause to believe the marijuana was still in appellant’s motel room at the time the warrant was sought. We disagree.

Before examining this contention, we set forth the applicable legal principles and factual circumstances. It is established law that a search warrant affidavit must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. (People v. Mesa (1975) 14 Cal.3d 466, 470 [ 121 Cal.Rptr. 473 , 535 P.2d 337 ]; Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 [ 107 Cal.Rptr. 483 , 508 P.2d 1131 ].)

The standards for reviewing search warrant affidavits were stated in United States v. Ventresca (1965) 380 U.S. 102 [ 13 L.Ed.2d 684 , 85 S.Ct. 741 ]. That statement was quoted with approval by the California Supreme Court in People v. Mesa, supra, 14 Cal.3d 466 , at…

I respectfully dissent.

The majority attempts to characterize the present affidavit as either containing sufficient facts for probable cause to believe the marijuana was still in the motel room or containing an ambiguity subject to rehabilitation. I disagree with this attempted characterization. Instead, this is a case where there are no facts indicative of the time of X’s observations of marijuana.

The lead opinion concedes that the only time phrase—“Within the past seventy-two hours of today’s date [date of executing the search warrant affidavit]”—modifies the clause dealing with X’s talk to the affiant officer. It also recognizes that sound grammatical construction compels such an interpretation. Nevertheless, the majority posits that a reviewing court can presume that the magistrate could reasonably conclude that the time reference dealt with X’s observations of contraband through some scheme of grammatical juxtapositioning alien to the English language. Although Ventresca mandates a common sense reading of search warrant affidavits, it does not apply to situations in which there is an absence of language reflecting “fresh” observations by a confidential informant.

With the…

Defendant appeals from a judgment by the court convicting him of possession of marijuana for sale (Health & Saf. Code, § 11359). The contraband was discovered in appellant's motel room during a search conducted pursuant to a search warrant. Appellant contends the affidavit in support of the search warrant failed to provide probable cause to believe the marijuana was still in appellant's motel room at the time the warrant was sought. We disagree.

Before examining this contention, we set forth the applicable legal principles and factual circumstances. (1) It is established law that a search warrant affidavit must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. ( People v. Mesa (1975) 14 Cal.3d 466, 470 [ 121 Cal. Rptr. 473 , 535 P.2d 337 ]; Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 [ 107 Cal. Rptr. 483 , 508 P.2d 1131 ].)

(2) The standards for reviewing search warrant affidavits were stated in United States v. Ventresca (1965) 380 U.S. 102 [ 13 L.Ed.2d 684 , 85 S.Ct. 741 ]. That statement was quoted with approval by the California Supreme Court in People v. Mesa,…