Bruni

The People appeal from a judgment dismissing an information after suppression of evidence, where the evidence was obtained pursuant to a search warrant specifying “daytime” service, but which was served at 9:30 p.m. at night.

In 1970, section 1533 of the Penal Code was amended to eliminate the provision for “daytime” service for normal service of a search warrant. Instead of “daytime,” the statute now specifies normal service as proper “between the hours of 7 o’clock a.m. and 10 o’clock p.m.” Apparently by oversight, the Legislature neglected to also amend the mandatory provisions under section 1529 of the Penal Code, which continues to require “daytime” service. An inconsistency exists as to the mandatory requirements of search warrants unless section 1529 of the Penal Code is read as having been amended by implication when section 1533 of the Penal Code was expressly amended. Otherwise, the only warrant an issuing magistrate could authorize, without possibly violating one or the other statute, would be one for unlimited service at any hour of day or night upon a showing of good cause. Nothing suggests that this was the legislative intent.

The provisions of the Penal…