PEOPLE v. FLEMING (1980)

Defendant was charged, in two counts, with the sale of cocaine, in violation of section 11352 of the Health & Safety Code. After his motions under sections 995 and 1538.5 of the Penal Code were denied, he pled guilty. Criminal proceedings were suspended and he was given probation. He has appealed; we reverse.

As the result of a continuing narcotic investigation, officers of Santa Barbara County secured, from a magistrate in that county, a warrant authorizing the search of defendant's home in Los Angeles County. Defendant in the trial court, and here, urges several grounds for his contention that the warrant was illegal and, thus, the evidence procured by its execution was subject to suppression. We here need consider only one of those grounds: that a warrant issued by a magistrate in one county may not validly be executed in another county under the circumstances shown by this record. We agree with that contention.

The People's brief cites a long list of authorities to the effect that, where there has been conduct in one county in aid of, or as part of, criminal conduct in a second county, venue may properly be laid in the second county. Those cases are of no help here. If, at trial, defendant can lawfully be shown to have assisted in narcotic sales in Santa Barbara County, the Santa Barbara courts will have jurisdiction to try him; defendant does not here contend otherwise. Our concern, in the case at bench, is whether, in any such trial, the People may lawfully utilize evidence that was secured by the execution, in Los Angeles, of the warrant in question. So far as we can discover, only two California cases have considered that question.

In People v. Grant (1969) 1 Cal.App.3d 563, 81 Cal.Rptr. 812, the court considered the validity of the execution of a warrant issued by a magistrate in San Mateo County but executed in San Francisco County. The court there said, at pages 568-569, 81 Cal.Rptr. at pages 815-816:

“We find little authority, but nevertheless considerable reason, supporting the theory that the effect of a search warrant should be limited at least to the county of its origin.

“ ‘Due process of law entitles the claimant of seized property to an early court hearing to determine whether the articles were subject to seizure. The determination may be had in advance of the trial of the criminal action which ordinarily follows the seizure. The purpose of Penal Code sections 1539 and 1540 is to provide the owner of seized property with a readily accessible court to pass on lawfulness of the seizure. By offering the claimant an opportunity for challenge under sections 1539-1540 and review of an unfavorable decision by prerogative writ, the state satisfies the demands of due process. * * * ’ (Italics added.) (Williams v. Justice Court, 230 Cal.App.2d 87, 98 (40 Cal.Rptr. 724, 732); and see Pen.Code, s 1538.5.) The fact that the property owner may attack the search and seizure in subsequent criminal proceedings (Pen.Code, s 1538.5, subds. (f), (g), (h) and (i)) does not reasonably authorize the denial of an effective right to proceed in the court which issued the warrant. It is contemplated that attack on the validity of the search and seizure under the warrant should originally be made in the court which issued the warrant. (Id., subd. (b), and see former s 1539.) Moreover, it is recognized that the search warrant may be issued by a court which does not have ‘power to inquire into the offense in respect to which the warrant was issued.’ (See Pen.Code, s 1541.) The person offended should have a ready forum in which to attack the validity of the search or seizure, and not be subjected to following his property across county lines, or conceivably to the opposite end of the state.

“The conclusion is fortified by reference to the law concerning warrants of arrest. From 1851 to 1935 only a judge of a court of record could issue a warrant of arrest which could be executed throughout the state. (See statutory history following Pen.Code, s 818 (repealed) in Deering's Pen.Code Annotated (1961), p. 718.) If issued by any other magistrate it could not be executed in the second county without an endorsement by a magistrate in that county. (Deering, op. cit., ss 819 and 820 (repealed), pp. 718-719; and see Elliott v. Haskins, 20 Cal.App.2d 591, 593-594 (67 P.2d 698).) Moreover, when a felon or misdemeanant is arrested outside of the county (see Pen.Code, ss 814 and 816), he is entitled to be taken before a magistrate in the county in which he is arrested and may be admitted to bail. (Pen.Code, ss 821 and 822.)” (Italics in original.)

After that discussion, the Grant court held that, in that case, the out-of-county execution was permissible because the officers, in attempting, in San Mateo County, to execute their warrant, had necessarily pursued the defendant's car until it had crossed the boundary into San Francisco County. To that situation, the court applied the familiar doctrine of “fresh pursuit.” No such special situation exists here. The investigation was of long standing; the officers were not pursuing defendant, but went, at their own pace and timing, to defendant's home where he was found.

In People v. Ruster (1976) 16 Cal.3d 690, 129 Cal.Rptr. 153, 548 P.2d 353, a Santa Clara magistrate had issued a search warrant for the search of defendant's residence in San Mateo County. After quoting, with apparent approval, from the opinion in Grant, the Supreme Court sustained the execution of the warrant on the ground that, in that case defendant was already under arrest in Santa Clara County and would be tried there. Here, this defendant, at the time of issuance and execution of the warrant, although under suspicion, had not been arrested; no charges against him were pending in Santa Barbara County.

Since both of the two cases recognize that the general rule prohibits execution of a search warrant outside the county of issuance and since the case at bench does not fall within the limited exception recognized by those cases, we feel compelled to hold that the warrant case here before us was invalidly executed and that the motion to suppress the evidence secured by that execution should have been granted.

We point out that the rule which we here recognize and enforce imposes no serious impediment to law enforcement. As the opinion in Grant says, under section 1541 of the Penal Code, the Santa Barbara officers could have presented their affidavit to a magistrate in Los Angeles County; assistance of Los Angeles officers could have been obtained; and a lawful execution effected.

The record and briefs before us in this appeal do not enable us to determine whether, without the evidence we here order suppressed, the People are able to proceed with the trial of defendant; that is a matter to be decided in the trial court on remand.

The judgment (order granting probation) is reversed with direction to proceed in accordance with the views expressed in this opinion.

KINGSLEY, Acting Presiding Justice.

WOODS and WONG,* JJ., concur.