People v. Baird

Decision Date08 June 1970
Docket NumberNo. 24713,24713
Citation172 Colo. 112,470 P.2d 20
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James M. BAIRD and Michael E. Lafferty, Defendants-Appellants.
CourtColorado Supreme Court

Floyd Marks, Dist. Atty., Adams County, Stanley B. Bender, Chief Deputy Dist. Atty., Brighton, James F. Smith, Deputy Dist. Atty., Commerce City, for plaintiff-appellee.

Lamm & Young, Denver, for defendant-appellant James M. Baird.

Edward B. Towey, Denver, Morgan Smith, Boulder, for defendant-appellant Michael E. Lafferty.

PRINGLE, Justice.

This is an interlocutory appeal under C.A.R. 4.1 from a decision in the Adams County District Court denying the defendants' motions to suppress evidence.

The defendants, Baird and Lafferty, were arrested and charged with possession of narcotic drugs and conspiracy to possess narcotic drugs. A search made by police officers authorized by a search warrant turned up marijuana in the possession of both defendants. Defendants argue that the search by the officers was not made (1) pursuant to a valid search warrant, or (2) incident to a lawful arrest, and that the district judge was in error in denying their motions to suppress. We affirm the judgment of the district court denying the motions.

On December 18, 1969, Officer McCall of the Adams County Sheriff's Office presented an affidavit for a search warrant to a county judge. The text of that affidavit is as follows:

'I, _ _, An officer authorized by law to execute warrants within the County of Adams, State of Colorado, being duly sworn upon oath says:

'That he has reason to believe that on the person or premises of or at: furthest house on the south-west corner behind 7595 Hwy 85, also for a late model van truck, Illinois plate 290637

'is located certain property to-wit:

All implements and accessory to manufacture any type drug or drugs. Also, for any type of narcotic or drugs. 'The facts which give rise to this belief are as follows:

'As to information supplied to me by Investigator Bob Sendle, Narcotic Division of the Araphaoe County Sheriff's Office, from whom a reliable source received information as to the manufacturing of drugs and the possession and sale of same.'


The defendants contend that there is an insufficient recitation of facts in the affidavit to support a finding of probable cause to issue a search warrant. We agree that the affidavit is insufficient and that the search warrant was invalid.

The Fourth Amendment to the United States Constitution, made binding on the states through the Fourteenth Amendment, guarantees that no search warrant shall issue without probable cause supported by oath or affirmation. The existence of probable cause for the issuance of a warrant is to be determined by a neutral and detached magistrate. The United States Supreme Court has held that when the sole source of information concerning probable cause is a secret police informer, then the magistrate can make a finding of probable cause only with some knowledge of the underlying circumstances upon which the informant based his information and some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

In Hernandez v. People, 153 Colo. 316, 385 P.2d 996, this court pointed out that Article II, Sec. 7 of the Colorado constitution is more restrictive than the Fourth Amendment. While the latter only requires that a warrant issue on the basis of probable cause supported by oath or affirmation, Article II, Sec. 7 requires further that the oath or affirmation be Reduced to writing. The express requirement of our constitution makes it clear beyond a doubt that sufficient facts to support a magistrate's determination of probable cause must appear on the face of the written affidavit.

Limiting our review to the facts appearing in the affidavit, we conclude that the affidavit is insufficient to support a finding of probable cause. In the affidavit, Officer McCall did no more than state that he received information as to the manufacturing, possession and sale of drugs from Investigator Bob Sendle who received the information from a reliable source. There is nothing in the affidavit concerning personal knowledge of the facts on the part of either officer, the facts upon which the informant based his information, or the circumstances from which the officers could conclude that the informant was credible or his information reliable. The mere conclusions by the officer provide nothing from which the county judge could have made an independent determination of probable cause; hence, the warrant issued on the basis of the affidavit is a nullity.


The remaining question is whether the narcotics sought to be suppressed by the defendants were seized during a search incident to a lawful arrest. Because the two defendants were searched and arrested under different circumstances, we find it necessary to discuss them separately in this opinion.

It is clear from the record that the police officers had more information concerning the defendant Baird and his activities than appears in Officer McCall's affidavit. McCall testified that Investigator Sendle had numerous dealings with this particular informant, and that the informant told Sendle that he had purchased narcotics from Baird on the night before the search warrant was obtained.

As McCall and Sendle approached Baird's residence on the day of the arrest, they observed a late model van truck with the license number specified in the search warrant pulling away from the front of the house. They followed the truck for some distance before stopping it. As soon as McCall identified the driver of the van as Baird, he arrested him for possession of narcotics.

At this point, two conclusions can be drawn from the record. First, the officers were proceeding with the intention of placing Baird under arrest and not with the sole intention of conducting a search of the van under the authority of the invalid search warrant. McCall testified that he did not observe the defendant break any law prior to his arrest and had no personal knowledge of any breach of the law by Baird. Yet the officers placed Baird under arrest for possession of...

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24 cases
  • People v. Stevens
    • United States
    • Colorado Supreme Court
    • December 31, 1973
    ...whereas, if the apprehension was characterized as a stop, something less than probable cause for arrest will suffice. See People v. Baird, 172 Colo. 112, 470 P.2d 20. Attaching such significance to these labels is misplaced. These labels are merely a shorthand way of describing different de......
  • People v. Deitchman, 84SA16
    • United States
    • Colorado Supreme Court
    • February 11, 1985
    ...facts to support a magistrate's determination of probable cause must appear on the face of the written affidavit." People v. Baird, 172 Colo. 112, 116, 470 P.2d 20, 22 (1970). The People concede that the affidavit of Detective Foster is constitutionally deficient. Simply stated, the affidav......
  • People v. Smith
    • United States
    • Colorado Supreme Court
    • November 10, 1980
    ...See People v. Mangum, 189 Colo. 246, 539 P.2d 120 (1975); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973).4 See People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970); Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965).We also note the recent decision of United States v. Williams, 622 F......
  • People v. Brethauer
    • United States
    • Colorado Supreme Court
    • March 8, 1971
    ...Colo., 479 P.2d 973 (1971); People v. Martinez, Colo., 475 P.2d 340 (1970); People v. Peppers, Colo., 475 P.2d 337 (1970); People v. Baird, Colo., 470 P.2d 20 (1970). In regard to the second prong of the test enunciated in Aguilar, we have declared that an affidavit does not establish the c......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...must be supported by oath or affirmation reduced to writing. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People ex rel. Orcutt v. Instant-whip Denver, Inc., 176 Colo. 396......

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