People v. Bauer

Decision Date03 August 1976
Docket NumberNo. 27234,27234
Citation191 Colo. 331,552 P.2d 512
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Raymond B. BAUER, Defendant-Appellee.
CourtColorado 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.

HODGES, Justice.

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, ...

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8 cases
  • People v. Bustam
    • United States
    • Colorado Supreme Court
    • March 8, 1982
    ...the items to be seized may be found in a particular place. See, e.g., People v. Stoppel, Colo., 637 P.2d 384 (1981); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973). Information received from an unidentified citizen approximately th......
  • State v. Lyons
    • United States
    • Washington Supreme Court
    • April 26, 2012
    ...language very similar to the affidavit in this case. E.g., Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976). In Nelms, the Alabama Court of Criminal Appeals evaluated a search warrant based on the following affidavit: That within the las......
  • People v. Montoya
    • United States
    • Colorado Court of Appeals
    • May 1, 1980
    ...to a determination of the existence of probable cause, United States v. Johnson, 461 F.2d 285 (10th Cir. 1972); see People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976); and if information provided the issuing magistrate does not reasonably demonstrate that the suspect is continuously engage......
  • People v. Lubben
    • United States
    • Colorado Supreme Court
    • June 29, 1987
    ...informant learned that defendants were moving methamphetamine between the two addresses listed. The court relied on People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976), for the proposition that these three factors were absolute prerequisites for reliance on a first-time informant's The cour......
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1 books & journal articles
  • Section 7 SECURITY OF PERSON AND PROPERTY - SEARCHES - SEIZURES - WARRANTS.
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...warrant. People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976). And may not rely on affiant's unexplained belief or assumption. An issuing magistrate may not rely on an affiant's unexp......

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