Nunes

Petitioner seeks a writ of prohibition or mandate directed to the trial court to cause certain evidence to be suppressed. Petitioner was charged by an information filed in superior court with 11 violations of law. Most of the charges were supported by evidence seized during searches conducted under authority of three warrants. Petitioner’s motion to suppress was denied.

Statement of the Facts

First Warrant.

At about 5 p.m. on May 10, 1979, Modesto Police Officer Gary Vance met fellow officer Smith at the police station for the purpose of drafting an affidavit for a search warrant for petitioner’s residence at 2708 Garvey Avenue in Modesto to seize a stolen motorcycle. The affidavit and other necessary documents were completed at about 11 p.m. and were taken to a magistrate’s residence at about 11:30 p.m. The affidavit requested authorization for nighttime service of the warrant, and Officer Vance informed the judge that officers were standing by to serve the warrant. The judge signed the warrant and told Officer Vance, “Go get em.” The search warrant was served on petitioner at the residence at about 12:30 a.m. on May 11. Officer Vance did not realize that the judge…