People v. Espinoza, 27929
| Decision Date | 13 March 1978 |
| Docket Number | No. 27929,27929 |
| Citation | 575 P.2d 851,195 Colo. 127 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff and Appellant, v. Phillip Alfonso ESPINOZA, Defendant and Appellee. |
| Court | Colorado Supreme Court |
Nolan L. Brown, Dist. Atty., Michael B. Tully, Deputy Dist. Atty., Golden, for plaintiff and appellant.
Thomas G. Elliott, Lakewood, for defendant and appellee.
The People bring this interlocutory appeal to challenge the trial court's ruling suppressing certain evidence. We reverse and remand for further proceedings.
On January 25, 1977, Westminster police officers investigated a burglary in Jefferson County. They found that a forcible entry had occurred and several items had been stolen, including turquoise jewelry and a LeBlanc clarinet. Neighbors gave the officers a description and license number of a "suspicious" vehicle.
On February 4, 1977, Sergeant Michaud of the Denver Police Department informed Detective Johnson of the Westminster Police Department that he (Michaud) had seen pieces of jewelry matching the description of those taken in Westminster on January 25. Sergeant Michaud stated that he had seen the jewelry while executing a narcotics search warrant in the appellee's apartment in Denver.
After Detective Johnson confirmed the jewelry's description and informed Sergeant Michaud that the previously obtained auto license number was registered to the appellee, Sergeant Michaud obtained a second warrant to search the appellee's apartment.
Detective Johnson accompanied Sergeant Michaud to execute the warrant. During the search the officers found a LeBlanc clarinet under the bed. Since Johnson knew that a clarinet had been taken in the Westminster burglary, he checked the serial number and identified the clarinet found as the stolen instrument. The clarinet and several pieces of jewelry were seized. Based on the search and other information, the appellee was arrested and charged in Jefferson County with second-degree burglary 1 and felony theft. 2
The appellee subsequently moved to suppress the seized evidence. At the suppression hearing, his argument challenged the sufficiency of the search warrant's description of the allegedly stolen property for which the officers were authorized to search. He did not contend that the affidavit in support of the search warrant failed to establish probable cause.
After both sides had concluded their arguments, however, the trial court expressed concern that no affidavit to support the search warrant had been tendered. When it had thus first become apparent that the affidavit was in issue, the district attorney requested a short continuance in order to obtain a copy for the court. 3 The trial court denied the request, however, and ruled that the search warrant was insufficient because it was not supported by any affidavit before the court and because it did not specifically describe any of the items taken in the Westminster burglary. We hold that the trial court abused its discretion in refusing to grant the People's request for a short continuance.
The granting or denial of a continuance is a matter resting in the sound discretion of the trial court, and will not be disturbed on appeal unless that discretion has been abused. E. g., People v. Holcomb, 187 Colo. 371, 532 P.2d 45 (1975); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972). On the facts of this particular case, however, we are compelled to reverse the trial court's ruling.
In Colorado, a search warrant must be supported by probable cause, established by oath or affirmation reduced to writing. Colo.Const. Art. II, sec. 7; Crim.P. 41. Therefore, when a search warrant is challenged for lack of probable cause, the supporting affidavit is an essential element to be introduced in evidence. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); Hernandez v. People, 153 Colo. 316, ...
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People v. Brown
...by a last minute switch of attorneys or selection of an unavailable attorney.” Gandy, 569 F.2d at 1328; see People v. Espinoza, 195 Colo. 127, 129, 575 P.2d 851, 853 (1978) (court abused its discretion in denying continuance where there was “no allegation that the district attorney's action......
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...reason for the district court to insist, upon pain of dismissal, that it hear the suppression motions on March 10. In People v. Espinoza, 195 Colo. 127, 575 P.2d 851 (1978), and People v. Hrapski, 718 P.2d 1050 (Colo.1986), we reversed trial court orders denying prosecution motions for cont......
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