Hernandez v. People

Decision Date21 October 1963
Docket NumberNo. 20713,20713
Citation385 P.2d 996,153 Colo. 316
PartiesSimon Alex HERNANDEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Caddes & Capra, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

We will refer to the plaintiff in error Hernandez as the defendant or by name, and to the defendant in error as the People. In a trial to the court Hernandez was convicted of receiving stolen property, namely, one DeJur-Grundig Stenorette dictating machine and he is here by writ of error. The dictating machine in question was introduced in evidence after the trial court had denied defendant's timely motion to suppress it. The impropriety of this ruling is the defendant's principal assignment of error before this Court.

The Attorney General has confessed error on this issue and joins the defendant in urging reversal. He agrees that the dictating machine was procured as a result of an unreasonable search and seizure and that the trial court committed prejudicial error in permitting its admission in evidence.

Ordinarily, we summarily grant the request of the Attorney General for reversal where he confesses judicial error. See Soto v. People, 64 Colo. 528, 173 P. 399 and McCray v. People, 150 Colo. ----, 371 P.2d 422. The fundamental importance of the matters raised here to the constitutional administration of justice in criminal cases in this state leads us, however, to a more detailed discussion of the reasons for our reversal than is usual in cases where error is confessed.

Until June 19, 1961 the rule in Colorado was that evidence, even though obtained as a result of an unlawful search and seizure, was admissible in a prosecution for a criminal offense. Massantonio v. People, 77 Colo. 392, 236 P. 1019; Wolf v. People, 117 Colo. 279, 187 P.2d 926 (Aff'd 338 U.S. 251, 69 S.Ct. 1359, 93 L.Ed. 1782.) However, on that date, the Supreme Court of the United States decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which overruled Wolf, supra, and for the first time extended to state courts the rule that evidence illegally obtained was inadmissible in a criminal prosecution--a rule in effect in the federal courts since 1914. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.

In our view, Mapp, supra, does not by its terms nationalize the law of search and seizure, see Traynor, J., Mapp v. Ohio At Large in the Fifty States, 1962 Duke L. J. 319; Collings, Toward Workable Rules of Search and Seizure--An Amicus Curiae Brief, 50 CalifL.Rev. 421; Weinstein, Local Responsibility for Improvement of Search and Seizure Practices, 34 Rocky Mtn.L.Rev. 150, but it does compel state courts to examine and resolve the problems arising from the search for and the seizure of evidence in the light of state and federal constitutional guarantees against unlawful searches and seizures. As a result of Mapp, supra, and to implement the constitutional guarantees against unlawful searches and seizures, this Court, on November 1, 1961, issued Rule 41, Colo.R.Crim.P., providing for the manner in which search warrants should be issued and making property obtained by an unlawful search and seizure inadmissible in evidence in the courts of this state provided timely motions to suppress are made. Rules establishing workable state procedures governing searches and seizures even though they may not be strictly in accord with federal procedures, are proper provided that such rules do not violate the Fourth Amendment proscription against unreasonable searches and seizures. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

With the foregoing in mind, we proceed to examine the conduct of the officers in this case in seizing the dictating machine in order to determine whether the manner in which they obtained possession of the machine was incident to a lawful search and in doing so we outline certain principles which must stand as necessary appendages to our Rule 41, Colo.R.Crim.P.

A warrant for the arrest of the defendant on the charge of assault to murder was purportedly issued out of a Justice of the Peace Court in Denver, Colorado on November 17, 1961. The warrant was not produced at the trial and does not appear of record, but Police Sergeant Borden of the Denver Police Department testified that he served such a warrant on the defendant when he arrested him.

Three search warrants were issued on February 1, 1962 by Judge William H. Burnett, a Justice of the Peace for the City and County of Denver, two of which commanded that the person of the defendant be searched. The third commanded that certain premises be searched which were originally described in the typwritten portion of the warrant as 'Apartment #12, 3357 Navajo, Navajo Apartments.' The number '2' had a line drawn through it with ink and the initials 'D. B.' placed next to it. At the hearing on the motion to suppress the evidence, Officer Borden testified that he had altered the warrant in the manner indicated but that he did not recall when he had done so. The property to be seized under the warrants was described as bulk marijuana, marijuana cigarettes, and a 32 caliber automatic pistol.

The affidavits in support of the search warrants were on a mimeographed form on which blank spaces were provided for describing the person or premises to be searched and the property to be seized. The affidavits were identical except for the typewritten description of the person or premises to be searched, and one example will suffice for the purposes of illustration:

'Sergeant Duane L. Borden, being duly sworn, upon his oath says: that he has reason to believe that (on the person) known as Alex Gamboa, alias: Simon Alex Hernandez DPD 27811 there is now located certain property, to wit, bulk marijuana, marijuana cigarettes, and other implements for the processing and handling of marijuana and a 32 cal automatic pistol which is carried by the above person while he engages in the traffic of marijuana which property is designed or intended for use or which is or has been used as a means of committing a criminal offense, or the possession of which is illegal

Dated: 1 February 1962

/s/ Duane L. Borden

Affiant

'Sworn and subscribed to before me this 1 day of February, 1962

/s/ Wm. S. Burnett

Justice of the Peace'

On the evening of February 8, 1962, four police officers had the defendant's apartment at 3357 Navajo Street in Denver under surveillance. The police observed the defendant and one Sammy Herrera drive up in an automobile and park it at the corner of 34th Avenue and Navajo Street. The defendant and Herrera got out of the car and entered Apartment No. 1 of the above described address. Officer Borden went up to the door and knocked on it. The defendant opened the door slightly and Borden said 'Arrest warrant--police, arrest warrant.' The defendant slammed the door shut and Borden proceeded to break it down, thereby gaining entrance to the apartment. Hernandez was then presented with copies of the warrants and placed under arrest.

The officers then began a systematic search of the apartment. During the search of the apartment one Officer Hayes took from the defendant the keys to the automobile in which the defendant had arrived and searched it. In the locked trunk thereof he found the dictating machine in issue here. In addition to the dictating machine, the return on the search warrant listed a Colt 38 Caliber pistol, a Samsonite brief case containing two boxes of cartridges and miscellaneous papers, a case of silverware, a gray shirt containing a marijuana cigarette in the left pocket and a switchblade knife.

The Fourth Amendment to the United States Constitution requires probable cause supported by oath or affirmation as a condition precedent to the valid issuance of a search warrant. The Colorado Constitution, Article II, Sec. 7, is even more restrictive and provides that probable cause must be supported by oath or affirmation reduced to writing. The determination of whether probable cause exists is a judicial function to be performed by the issuing magistrate, which in Colorado may be any Judge of the Supreme District, County, Superior or Justice of the Peace Court under Rule 41, Colo.R.Crim.P., and is not a matter to be left to the discretion of a police officer. Before the issuing magistrate can properly perform his official function he must be apprised of the underlying facts and circumstances which show that there is probable cause to believe that proper grounds for the issuance of the warrant exist. Mere affirmance of the belief or suspicion on...

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68 cases
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