People v. Bauer
| Decision Date | 03 August 1976 |
| Docket Number | No. 27234,27234 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Raymond B. BAUER, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Dale Tooley, Dist. Atty., Thomas P. Casey, Chief Appellate Deputy Dist. Atty., Lucy Marsh Yee, Deputy Dist. Atty., Denver, for plaintiff-appellant.
Goldsmith, Fleishman & Karet, Ira M. Karet, Chester J. Luby, Denver, for defendant-appellee.
This is an interlocutory appeal from a district court order suppressing evidence seized from defendant's apartment pursuant to a search warrant. The search had yielded a quantity of drugs for which the defendant was charged with two counts of possession with intent to dispense dangerous drugs. The district court found the search warrant defective because its supporting affidavit failed to state the time of the occurrence of the facts relied upon to establish probable cause. We affirm the ruling of the district court.
The warrant in question was procured by a police officer after an informant told him that he had observed marijuana inside the apartment where defendant lived. In his affidavit in support of the search warrant, the officer stated that:
'Within the last 24 hours I have received information from a first time informant that he had seen marijuana in the form of bricks wrapped in clear cellophane inside the apartment where a Ray Bauer lived. . . .'
The affidavit then sets forth other observations made by the informant and statements made by the defendant to the informant. However, the affidavit fails to state, or in any way indicate, when the informant was in the defendant's apartment and made the observations he related to the officer.
The district court, in granting the suppression motion, ruled that the affidavit was insufficient to establish probable cause because it did not reveal the time when the informant observed the marijuana bricks in defendant's apartment. The district court reasoned that without such a time reference it was impossible to reach a reasonable conclusion that drugs would be present in the apartment at the time of the search. The People appeal this ruling and assert that the affidavit, though not giving a specific time for the informant's observations, nonetheless, allows for reasonable inferences to be drawn that the observations were recent. We are not persuaded by the People's argument. Far more than just the vague inferences involved here as to when this informant saw what he reported are necessary.
To issue a search warrant, the magistrate must be apprised in detail of sufficient underlying facts and circumstances, reduced to writing under oath, from which he may reasonably conclude that probable cause exists for the issuance of the search warrant. People v. Brethauer, 174 Colo. 29,...
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