California Penal Code Section 1533 - Interpretation
In Rodriguez v. Superior Court (1988) 199 Cal. App. 3d 1453 245 Cal. Rptr. 617, the court considered whether a violation of Penal Code section 1533, which requires a showing of good cause for inclusion in a search warrant of a provision for nighttime service, requires suppression.
Earlier decisions so held. (See Tuttle v. Superior Court (1981) 120 Cal. App. 3d 320, 332 174 Cal. Rptr. 576; People v. Watson (1977) 75 Cal. App. 3d 592, 597-600 142 Cal. Rptr. 245.)
However, in light of article I, section 28, subdivision (d) of the state Constitution and existing federal law, the court held suppression is not mandated. (Rodriguez v. Superior Court, supra, 199 Cal. App. 3d at p. 1469.) Rather, considering the violation of the nighttime service requirement in light of the totality of the circumstances, the court concluded:
"Nothing in the record before us suggests anything unreasonable in the nighttime search of the . . . residence beyond the statutory violation in executing the warrant at approximately 10:30 p.m., and we therefore conclude the evidence seized in that search need not be excluded." (Id. at p. 1470.)