People v. Ward

MR. JUSTICE ERICKSON

dissenting:

I respectfully dissent. An examination of the affidavit and search warrants unequivocally shows that there were two apartments and that the police knew that there were two apartments. In executing an earlier search warrant at 1377 Ogden Street, Apartment B, the police noted that there were two separate apartments. Therefore, in this instance the police sought and obtained two warrants, one for each address. Reference was made in several places in the affidavit to 1377 Ogden Street, Apartment B, and 930 East 14th Avenue. The affidavit also clearly indicates who the occupants were of each apartment. In view of the clear recognition that two separate apartments existed, the need for two separate warrants cannot be disputed. People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971); People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970). Moreover, the sufficiency of each of the warrants had to be determined on the basis of the affidavit. It cannot be disputed that probable cause must exist and must be shown before a search warrant can issue to search either or both of the two apartments. United States v. Hinton, 219 F.2d 324 (7th Cir. 1955); State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969).

The majority opinion overlooks obvious deficiencies in the affidavit. The affidavit first refers to the informant who allegedly saw marijuana in both apartments, but the first statement contains no reference as to the time when the marijuana was seen and, therefore, does not establish probable cause. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966).

The affidavit is also deficient in meeting constitutional standards, because no source is set forth for some of the information which is relied upon to establish probable cause. A second statement attributed to an informant established that a quantity of marijuana in plastic baggies was seen in the apartments, but the affidavit does not disclose where or in which apartment the plastic baggies containing marijuana were seen. Probable cause to search both apartments cannot be predicated upon an informant’s observation of contraband in one of the apartments. Moore v. United States, 461 F.2d 1326 (D.C. Cir 1972).

The determination of probable cause must meet the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971). The affidavit does not measure up to constitutional standards. Fiad the judge who issued the warrant merely asked where the marijuana was seen, the error could have been cured by amendment of the affidavit.

The duty cast upon the judge who issues a warrant is often overlooked. For the guidance of judges who are called upon to issue a search warrant, we offer the following reminder:

“3.1 Issuance or review of warrants.

“Whenever a trial judge is called upon to issue a warrant for arrest or for search, or to review the issuance of such a warrant or the execution thereof, he should carefully observe constitutional and statutory norms and not permit these procedures to become mechanical or perfunctory . . . .” [American Bar Association Standards for Criminal Justice Relating to The Function of the Trial Judge. ]

In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Court said:

“[I]n a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is ‘reasonable’ only when there is ‘probable cause’ to believe that they will be uncovered in a particular dwelling. ” [Emphasis added.]

A warrant could properly have been issued to search for marijuana in the apartment where it was seen by the informant, but not elsewhere.

The trial court has determined that there were two apartments, and the trial court’s finding is binding upon us. United States v. Hinton, supra; Keiningham v. United States, 287 F.2d 126 (D.C. Cir. 1960). The trial court found:

“Specifically, the court’s concern, and based upon which the court makes its ruling, is that in .the second paragraph of this information (affidavit) there is the statement that the informant advised the officers that he was in the residences and somewhere within them, one of the two or both, or one or the other, I’m not sure, but he did observe some quantity of narcotics. And the court does not find that that is specific enough to have substantiated the necessary underlying circumstances which would have given rise to probable cause for the issuance of the search warrant. Accordingly, the motion to suppress is granted.”

Accordingly, I would sustain the ruling of the trial court.

MR. JUSTICE DAY and MR. JUSTICE LEE have authorized me to say that they join me in this dissent.