People v. Alexander ( 1977 )

MR. JUSTICE GROVES

delivered the opinion of the Court.

This is an appeal by the People mandated by section 16-12-102, C.R.S. 1973 of the district court’s judgment declaring section 12-47-128, C.R.S. 1973 to be unconstitutional. The opening sentence of the district attorney’s brief states the issue to be, “Whether the Liquor Code provision, Section 12-47-128, C.R.S. 1973, which authorizes warrantless search and seizure under certain circumstances, is constitutional.” We affirm the district court’s declaration of unconstitutionality.

The information jn this case charged the defendants with violation of, and conspiracy to violate, provisions of the Liquor Code of 1935. Sections 12-47-101 et seq., C.R.S. 1973. The information was filed after Denver police officers entered the Chateau Club pursuant to a search warrant and seized liquor, suspected narcotics and some firearms. In addition, the officers made a warrantless seizure of booths, chairs, furniture, bar stools, curtains, card tables, pool cues and other items of personal property in the club.

The defendants made a pre-trial motion to suppress evidence. The parties furnished the court with a stipulation as to the facts and issues. The court held the statute facially unconstitutional by reason of its search and forfeiture of property provisions.

We are confining ourselves strictly to the issue as stated by the district attorney. Specifically, we do not address ourselves to the validity of the search for and seizure of the items specified in the warrant, nor do we consider the forfeiture provisions of the statute.¹

Section 12-47-128, C.R.S. 1973 provides in pertinent part:

“[An] officer or person authorized by this article having personal knowledge or reasonable information that alcoholic liquors are being kept in violation of the law in any place, except a home as provided in this section, shall search such suspected place without a warrant and without any affidavit being filed and if such officer or person finds upon the premises alcoholic liquors, he shall seize the same together with the vessels in which they are contained and all implements and furniture used in connection with such alcoholic liquors in the illegal keeping, selling. . . the same. . . .”

The section also provides for the arrest of the person in charge of the place entered and for the forfeiture of property seized.

A nearly identical statute providing for warrantless searches was declared unconstitutional in Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965). There, our present Chief Justice, writing for a unanimous court, followed the change in the law as laid down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961). The warrantless search is presumptively illegal and the burden is upon the People to establish a recognized exception to the constitutional warrant requirements. People v. Mathis, 189 Colo. 534, 542 P.2d 1296 (1975), People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975), and People v. Duleff 183 Colo. 213, 515 P.2d 1239 (1973). Among the exceptions are “plain view,” consent, search incident to arrest, and exigent circumstances such as hot pursuit of a fleeing felon, and seizure of goods in the process of destruction or removal. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

The statute here under consideration does not predicate its authorization upon any recognized exception to the warrant requirement, but rather upon the personal knowledge or reasonable information of the officer or other person making the search. This circumvents any requirement of a finding of probable cause by a judicial officer prior to issuance of a search warrant.

The People contend that the Twenty-first Amendment to the United States Constitution, which repealed the Eighteenth Amendment and granted authority to the states as to intoxicating liquors, renders constitutional the statute here involved. The Twenty-first Amendment, however, did not alter the Fourth Amendment to authorize the warrantless search authorized by the statute. See California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

The People also cite United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), which involved inspection procedure under the federal Gun Control Act. An entirely different situation was there involved and the case is not applicable here.

Judgment affirmed.

MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN specially concur.

MR. CHIEF JUSTICE PRINGLE does not participate.

1 During oral argument defendant stated that all property seized during the search had been returned to the defendants. This appears to have been in accordance with a provision in the stipulation.