Flesher v. People
| Decision Date | 26 April 1971 |
| Docket Number | No. 23727,23727 |
| Parties | David Jerome FLESHER and Peter John Gleichman, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Younge, Hockensmith, Stacey & Robb, Grand Junction, for plaintiff in error David Jerome Flesher.
Traylor, Kladder, Harshman & Palo, Charles J. Traylor, Grand Junction, for plaintiff in error Peter John Gleichman.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.
On September 28, 1967, the District Attorney of Mesa County filed an Information charging the defendants, David Jerome Flesher and Peter John Gleichman, with unlawfully having in their possession a narcotic drug, cannabis, commonly known as marijuana, in violation of C.R.S.1963, 48--5--2. On that same day, a search warrant was issued permitting the police to search a safe deposit box rented by the defendants at Mesa National Bank. A search was made the same day by the police, accompanied by defendants, which revealed three envelopes containing the prohibited drug. Defendants were taken to police headquarters and were individually questioned about the safe deposit box. These statements, Exhibits D and E, were introduced at trial, as part of the People's evidence over defendants' objections.
Defendants filed a motion to suppress this evidence, alleging as grounds therefor that no probable cause existed for the issuance of this search warrant and that therefore the envelopes were unlawfully obtained by the police and should be suppressed. This motion was denied by the court.
A jury trial was waived and trial to the court was held December 20, 1967. Defendants' objection to the introduction of these three envelopes containing marijuana was overruled. At the conclusion of the evidence, the court found the two guilty as charged. Motions for judgment of acquittal and for a new trial were denied, and appeal has been brought to this court.
Although several assignments of error were raised, we find two to be dispositive of the case as a whole. The first relates to the search warrant which issued and the second to the admission into evidence of Exhibits D and E, statements made by the defendants. The search warrant issued September 28, 1967 was fatally defective in that the affidavit, upon which it was based, failed to establish that probable cause existed to believe that marijuana was being kept in the safe deposit box rented by the defendants. Under both the Fourth Amendment of the United States Constitution and Article 2, Section 7 of the Colorado Constitution, no search warrants may issue without a showing of probable cause, which, under the Colorado Constitution, must be affirmed in writing before a search warrant may issue. It is necessary that a determination of the existence of probable cause be made by the judiciary; not upon mere suspicion of the police. Hernandez v. People, 153 Colo. 316, 385 P.2d 996; Gallegos v. People, 157 Colo. 173, 401 P.2d 613. The affidavit in the present case reveals no such information as could lead to a judicial determination of the existence of probable cause to believe that narcotics were present in that particular safety deposit box.
Probable cause is an elusive term and is incapable of any precise definition, which would permit a mechanical application under all circumstances once certain factors are presented. The United States Supreme Court in attempting to define this area with certainty and to provide guidelines for proper investigation has provided a two-prong test. First, the affidavit upon which the warrant is based must set forth the 'underlying circumstances' necessary to enable an independent judicial determination to be made, and, second, the information upon which the conclusion is based must come from a reliable or credible source. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
The affidavit here does not recite sufficient facts which could enable the court to make an independent determination that there is probable cause to believe that the defendants were keeping marijuana in their safe deposit box.
In sum total, the first six numbered paragraphs of this affidavit merely provided the information to the court that the two college students, one of whom reportedly had engaged at some previous time in selling marijuana, had rented a safe deposit box. Absolutely nothing is recited which could give rise to any reasonable form of belief that the two were keeping marijuana in this box, and consequently, based upon this, no probable cause has been shown.
However, the obvious crux of this argument in favor of probable cause is to be found in paragraph 7, which is the statement that the Treasury Department had received information that one of the defendants kept marijuana in a safe deposit box in a local bank. If this information is coupled with the information...
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People v. Thompson
...371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971) and Flesher v. People, 174 Colo. 355, 484 P.2d 113 (1971). We also reject the suggestion of the attorney general in his brief that warrantless searches of penitentiary visitors an......