Grimes

Petitioners seek a writ of mandate directing the superi- or court to suppress evidence pursuant to Penal Code section 1538.5 and to set aside the information pursuant to Penal Code section 995. Petitioners are jointly charged with violating Health and Safety Code section 11358 (cultivation of marijuana) and Penal Code section 12020, subdivision (a) (possession of a sawed-off shotgun).

The issue before this court is whether evidence seized pursuant to a search warrant should have been suppressed because the magistrate who issued the warrant was not “neutral and detached.” The magistrate was the owner of the premises ordered to be searched and was also the person who advised the police to investigate the premises after he observed what he thought were marijuana plants growing thereon.

The Facts

On August 31, 1980, Howard Green, Judge of the Chowchilla Judicial District, County of Madera, went to 412 Monterey Street, Chowchilla, at the request of Mrs. Weese who resides there. Mrs. Weese had advised Judge Green that she suspected marijuana was being cultivated next door at 416 Monterey on premises owned by Judge Green.

Upon Judge Green’s arrival, Mrs. Weese showed him her…