State v. Jasso , 21 Utah 2d 24 ( 1968 )

TUCKETT, Justice:

The defendant was convicted of possession of marijuana and appeals from that conviction. During the course of the trial the defendant moved to suppress evidence of certain marijuana taken from the home of defendant pursuant to a search warrant issued by a magistrate. The court denied the motion to suppress and the defendant is here claiming that the ruling of the court was erroneous and prejudicial.

Prior to the charge being made against the defendant, an officer of the Ogden City Police Department applied to one of the judges of the City Court of Ogden for the issuance of a search warrant. The application for the warrant was made to the judge at his residence late at night. The judge was of the opinion that the affidavit supplied by the officer stated insufficient grounds for the issuance of a warrant. The State does not contend that the affidavit was sufficient and it is quite obvious that it was not. The judge then swore the officer as a witness and questioned him as to other grounds for the issuance of the warrant. Based upon the officer’s oral deposition, supplementing his written affidavit, the judge issued a search warrant. During the trial and after the defendant had moved to suppress the evidence taken pursuant to the warrant the court permitted the prosecution to file an amended affidavit which set forth the facts related by the officer in his oral deposition. We are now asked to determine whether a search warrant may be issued upon the oral deposition of the applicant.

The Fourth Amendment of the Constitution of the United States and Article I, Section 14 of the Utah State Constitution are identical. The section of the Utah Constitution is as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

The statutes implementing the constitutional provision are found in Title 77, Chapter 54, U.C.A. 1953, Section 77-54-4 U.C.A. 1953 provides as follows:

Examination of complainant and witnesses. — The magistrate must, before issuing the warrant, examine on oath the complainant, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed, by the parties making them.

It seems to us that the language of the statute is clear and cannot be construed as meaning that a warrant may issue from an oral deposition of the complainant or other witnesses.

We are of the opinion that the warrant not having been issued pursuant to the statute was invalid. The marijuana taken during the search of the defendant’s home pursuant to the warrant was unlawful. The marijuana seized at the defendant’s home and the evidence respecting the same should have been suppressed.¹

The defendant’s conviction is reversed and the case is remanded to the District Court for a new trial.

CALLISTER and HENRIOD, JJ., concur.

1 . Mapp v. Ohio, 367 U.S. 613, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 81 A.L.R.2d 933.