People v. Wachter

In People v. Wachter (1976) 58 Cal.App.3d 911, an affidavit failed to state the specific date on which an individual made observations leading to discovery of marijuana on a defendant's premises. In sustaining the warrant, we relied partially on the fact that the affidavit recited that "there is now . . . on the premises described" (defendant's property) "marijuana." (Italics added.) We specifically noted that the word "now" was in the present tense, which suggests that the marijuana was being grown on defendant's property at the time the affidavit was executed. ( People v. Wachter (1976) 58 Cal.App.3d 911, 918.) Although placing some reliance on this wording, our decision hinged upon two other reasons ("even more persuasive and substantial") from which the magistrate could reasonably infer that the marijuana was observed at a time closely proximating the execution of the affidavit. First, it was noted that the individual observing the marijuana was a law enforcement officer who was on vacation and who had a duty to promptly report the information to the sheriff's office. Second, we also found that staleness was rebutted by the nature of the marijuana observed. In particular, the Court stated: "Most of the cases involving a lack of specificity as to the date of the discovery of the crime deal with such items as narcotics and drugs which are easily transportable, consumed, or hidden. That is not true of a growing crop of marijuana. It can disappear overnight only under the most exceptional circumstances. Even though it be harvested, evidence of its growth will continue to exist in the form of stubble and underground roots. It is not comparable to objects that are transitory, movable, easily hidden or consumed. For this reason a different time element must be applied to the instant case than would be applicable to the ordinary drug or narcotic violation cases." ( Id., at pp. 919-920.) After emphasizing that a growing crop was involved, we then noted that the magistrate's conclusion was "further strengthened by the statement in the affidavit to the effect that marijuana was now growing on defendant's premises." ( Id., at p. 920.) Thus, a close reading of Wachter shows that the conclusory word "now" was supported by inferences which could be drawn from facts contained in the affidavit. Furthermore, there were surrounding circumstances which made it reasonable for the magistrate to infer that the observations were recent in time.