Opinion
No. 24928.
Decided February 16, 1971.
Interlocutory appeal from a ruling which denied defendant's motion to suppress evidence seized during execution of a search warrant.
Affirmed in Part, Reversed in Part.
1. WORDS AND PHRASES — Probable Cause — Factual and Practical — Reasonable and Prudent. In dealing with probable cause one deals with probabilities which are not technical but which are the factual and practical considerations of everyday life on which reasonable and prudent men — not legal technicians — act.
2. SEARCHES AND SEIZURES — Motion to Suppress — Denial — Warrant — Affidavit — Probable Cause — Credit Card — Handwriting Samples. In an interlocutory appeal by defendant seeking review of a ruling of the trial court which denied his motion to suppress evidence seized during execution of a search warrant, reviewing court affirms finding of trial court that affidavit upon which the search warrant was predicated did show probable cause to seize credit card and handwriting samples.
3. Article — Not Specifically Designated — Warrant — Not Per Se Connected — Burden — People — Suppressed. When an article seized is not specifically designated in the search warrant, and when it is not per se connected with criminal activity, the burden of showing that it is so connected falls upon the People: and, as to this requirement, if the People sustain the burden, the articles should not be suppressed.
4. Articles — Not Designated — Not Connected — Criminal Activity — Remand — Connection — Findings — Order — Items. Where articles seized during search which were not specifically designated in search warrant and which were not per se connected with criminal activity, held, under the circumstances, the matter would be remanded for further hearing by the trial court on the question of such connection and for findings and an order concerning those items not specifically designated in the warrant.
5. PROSECUTING ATTORNEY — Hearings — Motions to Suppress — Burden — People — Connection — Articles — Not Designated — Warrant — Permission — Showings. With respect to hearings on suppression motions held prior to Supreme Court decisions placing burden on People of showing connection with criminal activity of articles not specifically designated in search warrant and not per se connected with criminal activity, reviewing court regards it as proper to permit district attorneys to attempt to make such showings.
6. SEARCHES AND SEIZURES — Return and Inventory — Failure to File — Ten Days — Warrant — Issuance — Valid. The failure to file the Return and Inventory within ten days after the search warrant is issued does not invalidate the search.
Interlocutory Appeal from the District Court of Boulder County, Honorable Howard O. Ashton, Judge.
Stanley F. Johnson, District Attorney, Charles L. Sisk, Deputy, for plaintiff-appellee.
Williams, Trine and Greenstein, William D. Neighbors, for defendant-appellant.
This is an interlocutory appeal by a defendant charged, among other things, with theft of articles having a value greater than $100. He seeks review of a ruling of the trial court which denied a motion to suppress evidence seized during execution of a search warrant.
I.
The first argument of the defendant is that the affidavit, upon which the search warrant was predicated, did not show probable cause. The affidavit disclosed the following facts:
Articles, including a credit card, had been stolen from a service station. The defendant had been employed by the station and this employment terminated about two weeks prior to the theft. On the day of the theft the defendant was in the service station for no apparent reason. An unknown male, driving the defendant's car, came to the drive-up window of a bank and presented two checks. The teller turned to "check the account number used on the deposit slip, at this time the party became spooked and drove off in a big hurry." Charge account purchases made with the stolen credit card were forged, and the writing on the vouchers was similar to that of the defendant.
[1] In Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965) it was said:
"In dealing with probable cause, one deals with probabilities. 'These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Draper v. United States . . .; Brinegar v. United States. . . ."
In People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970), this language was set forth and the following statement was made:
"We will not apply a super-technical application to Article II, Sec. 7 of our constitution or to the Fourth Amendment to the United States Constitution, but, as we previously said, will apply the practical considerations of everyday life upon which reasonable men act."
[2] Under these tests, we affirm the finding of the trial court that the affidavit showed probable cause.
II.
[3] The only item taken in the search which were designated in the search warrant were the credit card and handwriting samples. A number of other items were seized. The defendant contends that these items should have been suppressed. This point was considered at length in People v. Henry, 173 Colo. 523, 482 P.2d 357, announced contemporaneously with this opinion. As we held there, among other requirements concerning searches, when an article seized is not specifically designated in the search warrant, and when it is not per se connected with criminal activity, the burden of showing that it is so connected falls upon the People; and, as to this requirement, if the People sustain the burden, the articles should not be suppressed.
[4,5] In the instant matter, very few of the items seized were shown to be connected with criminal activity, and obviously they are not per se connected with criminal activity. As in Henry, we remand this matter for further hearing by the trial court on the question of such connection, under the test enunciated in Henry, and for findings and an order concerning those items not specifically designated in the warrant. Since clarification of the law in Colorado to this extent has not been made prior to Henry, we regard it as proper to permit district attorneys to attempt to make these showings with respect to hearings on suppression motions held prior to the announcement of Henry and this opinion. At hearings on suppression motions in the future, when the district attorney fails to make the requisite showing, the trial court should sustain the motion as it relates to non-specified articles not per se connected with criminal activity as limited by Henry.
III.
[6] The search warrant was issued on May 23, 1970, and the search was made the same day. The Return and Inventory was filed with the court on May 15, 1970. The defendant has presented the argument that the failure to file the return within ten days invalidated the search. We have held otherwise in People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).
The order of the trial court is affirmed with respect to the credit card and handwriting samples, and the matter is remanded with the direction to proceed in consonance with the views expressed herein.