In Leahy we held that when an officer-affiant relies on information from a fellow officer, the latter's reliability need not be established.Summary of this case from People v. Jackson
No. 24777. No. 24856.
Decided December 28, 1970.
Interlocutory appeal by defendants charged with possession of marijuana with intent to induce and aid another to unlawfully use and possess it. From denial of their motion to suppress evidence seized under an allegedly defective search warrant, defendants brought this appeal.
1. SEARCHES AND SEIZURES — Warrant — Lack of Contents — Affidavit — Not Served — Valid — Rule. Where search warrant contained name of person who made affidavit, description of property, description of premises, statement that property was intended for use as means of committing criminal offense, that possession of same was illegal, and that property sought would be material evidence in subsequent criminal prosecution, held, warrant was sufficient and valid under Crim. P. 41, notwithstanding that warrant did not contain contents of affidavit, and, at time of search and service of warrant, a copy of affidavit was not served.
2. DRUGS AND DRUGGISTS — Unauthorized Possession — Form of Search Warrant — Statute — Unconstitutional — Rule — Proper. Reviewing court is in accord with view of district attorney, to wit, that 1965 Perm. Supp., C.R.S. 1963, 48-5-11(3) — which relates to unauthorized possession of narcotic drugs and which provides that form of search warrant for narcotic drugs shall be substantially as set forth in statute — is unconstitutional and, therefore, the warrant is to be judged solely under Crim. P. 41.
3. CONSTITUTIONAL LAW — Use of Word "Shall" — Mandatory — Command — Court — Issuance — Search Warrant — Deprivation — Discretion — Probable Cause — Statute — Unconstitutional — Rule — Applicable. Where word "shall" in particular portion of statute was used in a mandatory sense thereby commanding the judge to issue a search warrant, held, since statute deprived court of discretion which court must exercise in finding probable cause as required by both state and federal constitutions, and since this portion of statute is an integral part of entire C.R.S. 1963, 48-5-11(3) and is nonseverable, entire sub-section (3) of statute is declared to be unconstitutional; accordingly, validity of warrant is to be judged under Crim. P. 41 and is sufficient notwithstanding failure to have contents of affidavit attached thereto in compliance with such statute.
4. SEARCHES AND SEIZURES — Affidavit — Warrant — Police — Boulder — Denver — Informant — Reliable — Detective — Validity. Where affidavit, upon which search warrant was predicated, was made by officer of Boulder Police Department assigned to investigation of drugs violation, and recited that a detective of the Denver Police Department had made a report to affiant; that an informer had advised Denver detective that on previous day he had observed several packages of different drugs in a certain residence in Boulder; and that Denver detective previously found the informant reliable, held, under these circumstances, the fact that the affidavit did nothing to disclose the reliability of the Denver detective — except the fact that he was a detective — did not affect its validity since there is nothing requiring a showing of reliability of the Denver detective.
5. Warrant — Failure to Name City — Fatal — Prejudicial — Negative — Showing — Finding. Where search warrant specified place to be searched as "1704 Pine St., County of Boulder, State of Colorado, and city involved was not shown, absence of the name of the city was not fatal or prejudicial; especially, where showing was made that the place searched was the only one in Boulder County having an address of 1704 Pine St., and court found there was sufficient clarity as to location in the minds of all parties involved.
6. Language in Warrant — Proper — General Warrant — Broad and Ambiguous — Negative. Where language in warrant authorized seizure of: (1) Any and all narcotics and dangerous drugs as defined by applicable Colorado Statutes, the possession of which is illegal, and (2) All implements, paraphernalia, articles, papers and records pertaining to, or which would be evidence of, the illegal use, possession or sale of narcotics and/or dangerous drugs, held, such language was proper; it was not so broad and ambiguous as to make this a general warrant, nor so broad as to be unconstitutional per se.
Interlocutory Appeal from the District Court of Boulder County, Honorable John B. Barnard, Judge.
Stanley F. Johnson, District Attorney, Ralph S. Josephsohn, Deputy, for plaintiff-appellee.
Peter H. Nevy, for defendant-appellant Jakie Darlene Smith.
Christopher R. Brauchli, for defendant-appellant Donald Sterkel.
William R. Gray, for defendant-appellant Francis John Leahy.
Robert L. Pitler, for defendant-appellant Randall Schubert.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Aurel M. Kelly, Assistant, amicus curiae.
This is an interlocutory appeal brought by the defendants, who stand charged with possession of marijuana with intent to induce and aid another to unlawfully use and possess it. The marijuana was seized under a search warrant, which the defendants contend was defective and invalid. The trial court denied their motion to suppress the evidence seized under the warrant. We affirm the ruling.
The warrant contained the name of the person who made the affidavit upon which it was based, contained a description of the property sought to be obtained, and gave a description of the premises at which the property was believed to be situated. It also contained the statement that the property was intended for use as a means of committing a criminal offense, that the possession of the same was illegal, and that the property sought would be material evidence in a subsequent criminal prosecution. Otherwise, the warrant did not contain the contents of the affidavit, and, at the time of the search and the service of the warrant, a copy of the affidavit was not served.
 We regard the warrant as sufficient and valid under Crim. P. 41. The defendants contend that the warrant did not comply with 1965 Perm. Supp., C.R.S. 1963, 48-5-11(3) because the warrant did not contain or have attached thereto the contents of the affidavit. This statute, originally adopted in 1935, relates to the unauthorized possession of narcotic drugs. It provides that the form of a search warrant for narcotic drugs shall be substantially as set forth in the statute. The form is in part as follows: "Whereas there has been filed with the undersigned an affidavit of which the following is a copy (here copy the affidavit). . . ."
 The district attorney submits that the statute is unconstitutional and, therefore, the warrant is to judged solely under Crim. P. 41. We agree.
One portion of this statute already has been declared unconstitutional. Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965). Our attention is directed to another portion of this statute which states that after a certain type of affidavit is filed with the court, "then such judge of such court, shall issue a warrant to any officer which the complainant may designate. . . ." The district attorney submits that the word "shall" robs a court of discretion, making it mandatory for the court to issue the warrant, thus unconstitutionally usurping the judicial function under the Fourth and Fourteenth Amendment to the United States Constitution and art. II, § 7 of the Colorado constitution. The district attorney further argues that the entire statute must fall by reason of this unconstitutional invalidity and, having fallen, Crim. P. 41 controls.
Both the defendants and the Attorney General argue rather vigorously that there is no reason for us to pass on the constitutionality of the statute. It is their position that the statute is constitutional because "shall" should be interpreted to mean "may."
We do not regard Wilson, supra, as very good authority in this matter. Our own research has found People v. De La Mater, 213 Mich. 167, 182 N.W. 57 (1921), which declared a similar statute unconstitutional. We quote the Colorado and Michigan statutes in parallel fashion to show the striking similarity between them:
Colorado Michigan "If any person make an If any person makes a affidavit before any judge sworn complaint or of any county or district affidavit before any court, magistrate authorized to issue warrants in criminal cases,
stating that he has reason that he has reason to to and does believe that believe and does believe any person has in his that any intoxicating possession or under his liquors are being control any of the drugs manufactured, possessed, mentioned in this article, sold, furnished, or within the jurisdiction of given away or possessed, such court, and describing contrary to law, or that in such affidavit the person, such liquors are stored, wagon, automobile, vehicle, temporarily or contrivance, thing, or otherwise, in any depot, device to be searched, freight house, express office, or in any other building or place with the apparent intention of being delivered for the purpose of being sold, furnished or given away contrary to the provisions of this act,
then such judge of such such magistrate shall court, shall issue a warrant immediately issue his to any officer which the warrant to any officer complainant may designate whom the complainant having power to serve may designate, having original process, commanding power to serve criminal such officer to search the process, commanding him person, premises, wagon, to search the premises automobile, vehicle, contrivance, described and designated thing or device described in such in such complaint and affidavit." 1965 Perm. Supp., warrant, and if such C.R.S. 1963, 48-5-11 (3). liquors are there found, to seize the same together with the vessels in which they are contained, and all the implements and furniture used and dept for such illegal manufacturing, importing, selling, furnishing, giving away, possessing, or storing of such liquors, and then safely keep and make immediate return on said warrant." Mich. Pub. Acts 1917, No. 338, § 25.
 In De La Mater the Michigan court held that the word "shall" constituted a mandatory command to issue the writ, robbing the magistrate of authority to determine the question of probable cause under a provision of the Michigan constitution similar to our art. II, § 7. That court also relied upon the similar wording in the Fourth Amendment of the United States Constitution. If that statute was unconstitutional, certainly the one here under consideration is. To us the word "shall" in this statute is used in the mandatory sense. Therefore, the statute deprives a court of the discretion which a court must exercise in finding probable cause as required by our Constitution and the United States Constitution. This particular portion of the statute is an integral part of the entire C.R.S. 1963, 48-5-11(3) and is non-severable. Therefore, the entire sub-section (3) of the statute is declared to be unconstitutional. See White v. Anderson, 155 Colo. 291, 394 P.2d 333 (1964); Four-County Metropolitan Capital Improvement District v. County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962); Denver v. Lynch, 92 Colo. 102, 18 P.2d 907 (1932); Mayor v. Shattuck, 19 Colo. 104, 34 P. 947 (1893). It follows, then, that the validity of the warrant is to be judged under Crim. P. 41 and, as we have indicated, it is sufficient under that rule.
 The affidavit, upon which the warrant was predicated, was made by an officer of the Boulder Police Department assigned to the investigation of drugs violations. It recited that a detective of the Denver Police Department had made a report to the affiant; that an informant had advised the Denver detective that on the previous day he had observed several packages of cocaine, hashish and LSD in a certain residence in Boulder (which became the subject of the search); and that the Denver detective previously had found the informant reliable. The affidavit continued with instances showing the reliability of the informant. It is not argued here that the showing as to the informant's reliability was insufficient. Rather, the defendants present the proposition that the affidavit did nothing to disclose the reliability of the Denver detective, except the fact that he was a detective, which fact defendants do not recognize as being sufficient.
With the proximity of Denver and Boulder, the police departments must of necessity — and they do — work together on many matters. We perceive an analogy between the officers of these two departments exchanging information and the exchange of information between agents of the Federal Bureau of Investigation located in different cities. Under United States v. McCormick, 309 F.2d 367 (1962), an F.B.I. agent, acting as affiant, can use information obtained from an informant by an F.B.I. agent in another city, and the characteristic of "double hearsay" does not render the warrant invalid. See United States v. Simon, 409 F.2d 474 (1969). We do not read Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as requiring a showing of reliability of the Denver detective.
 The warrant specified the place to be searched as "1704 Pine St., County of Boulder, State of Colorado." The defendants contend that since the city involved was not shown, the warrant was fatally defective. The district attorney made a showing to the trial court that the place searched was the only one in the County of Boulder having an address of 1704 Pine St. The court found that there was sufficient clarity as to the location in the minds of all parties involved. With this showing and finding we have concluded that the absence of the name of the city was not fatal or prejudicial. People v. Royse, 173 Colo. 254, 477 P.2d 380 (1970).
 The defendants assert that the language in the warrant which specified the items to be seized is so broad and ambiguous as to make this a general warrant, i.e., the language is so broad as to be unconstitutional per se. The warrant authorized seizure of the following items:
"1. Any and all narcotics and dangerous drugs as defined by the applicable Colorado Statutes, the possession of which is illegal.
"2. All implements, paraphernalia, articles, papers and records pertaining to, or which would be evidence of, the illegal use, possession or sale of narcotics and/or dangerous drugs."
We do not think that this language has the effect of making this a general warrant. We recently approved a warrant having no greater degree of certainty. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).
There is brief mention by the defendants that the above description did not authorize seizure of some of the items actually seized. The only items they denominate specifically are "papers and effects." The return and inventory listed papers belonging to various named defendants, and the warrant authorized seizure of certain kinds of "papers." Neither the inventory, the briefs, nor the record discloses the nature of these "papers." In this connection we note that the parties submitted most issues concerning this search and seizure by briefs rather than at an evidentiary hearing. The defendants raised only one issue in the evidentiary hearing, even though given an opportunity by the court to submit evidence on all issues they wished to present. Since the defendants have not advised us of the nature of these "papers," we are unable to make any determination of the matter.
We find the other arguments presented by the defendants without merit.