People v. Leahy

Decision Date28 December 1970
Docket Number24856,Nos. 24777,s. 24777
Citation173 Colo. 339,484 P.2d 778
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Francis John LEAHY, Randall Schubert, Jakie Darlene Smith and Donald Sterkel, Defendants-Appellants.
CourtColorado Supreme Court

Stanley F. Johnson, Dist. Atty., Ralph S. Josephsohn, Deputy Dist. Atty., Boulder, for plaintiff-appellee.

Peter H. Ney, Englewood, for defendant-appellant Jakie Darlene Smith.

Christopher R. Brauchli, Boulder, for defendant-appellant, Donald Sterkel.

William R. Gray, Boulder, for defendant-appellant Francis John Leahy.

Robert L. Pitler, Denver, for defendant-appellant Randall Schubert.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, amicus curiae.

GROVES, Justice.

This is an interlocutory appeal brought by the defendants, who stand charged with possession of marijuana with intent to induce and aid another to unlawfully use and possess it. The marijuana was seized under a search warrant, which the defendants contend was defective and invalid. The trial court denied their motion to suppress the evidence seized under the warrant. We affirm the ruling.

I

The warrant contained the name of the person who made the affidavit upon which it was based, contained a description of the property sought to be obtained, and gave a description of the premises at which the property was believed to be situated. It also contained the statement that the property was intended for use as a means of committing a criminal offense, that the possession of the same was illegal, and that the property sought would be material evidence in a subsequent criminal prosecution. Otherwise, the warrant did not contain the contents of the affidavit, and, at the time of the search and the service of the warrant, a copy of the affidavit was not served.

We regard the warrant as sufficient and valid under Crim.P. 41. The defendants contend that the warrant did not comply with 1965 Perm.Supp., C.R.S.1963, 48--5--11(3) because the warrant did not contain or have attached thereto the contents of the affidavit. This statute, originally adopted in 1935, relates to the unauthorized possession of narcotic drugs. It provides that the form of a search warrant for narcotic drugs shall be substantially as set forth in the statute. The form is in part as follows: 'Whereas there has been filed with the undersigned an affidavit of which the following is a copy (here copy the affidavit): * * *'

The district attorney submits that the statute is unconstitutional and, therefore, the warrant is to be judged solely under Crim.P. 41. We agree.

One portion of this statute already has been declared unconstitutional. Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965). Our attention is directed to another portion of this statute which states that after a certain type of affidavit is filed with the court, 'then such judge of such court, shall issue a warrant to any officer which the complainant may designate * * *.' The district attorney submits that the word 'shall' robs a court of discretion, making it mandatory for the court to issue the warrant, thus unconstitutionally usurping the judicial function under the Fourth and Fourteenth Amendment to the United States Constitution and art. II, § 7 of the Colorado constitution. The district attorney has cited Wilson v. People, Supra, as authority. The district attorney further argues that the entire statute must fall by reason of this unconstitutional invalidity and, having fallen, Crim.P. 41 controls.

Both the defendants and the Attorney General argue rather vigorously that there is no reason for us to pass on the constitutionality of the statute. It is their position that the statute is constitutional because 'shall' should be interpreted to mean 'may.'

We do not regard Wilson, supra, as very good authority in this matter. Our own research has found People v. De La Mater, 213 Mich. 167, 182 N.W. 57 (1921) which declared a similar statute unconstitutional. We quote the Colorado and Michigan statutes in parallel fashion to show the striking similarity between them:

Colorado

'If any person make an affidavit before any judge of any county or district court, stating that he has reason to and does believe that any person has in his possession or under his control any of the drugs mentioned in this article, within the jurisdiction of such court, and describing in such affidavit the person, premises, wagon, automobile, vehicle, contrivance, thing, or device to be searched, then such judge of such court, shall issue a warrant to any officer which the complainant may designate having power to serve original process, commanding such officer to search the person, premises, wagon, automobile, vehicle, contrivance, thing or device described in such affidavit.' 1965 Perm.Supp., C.R.S.1963, 48--5--11(3).

Michigan

'If any person makes a sworn complaint or affidavit before any magistrate authorized to issue warrants in criminal cases, that he has reason to believe and does believe that any intoxicating liquors are being manufactured, possessed, sold, furnished, or given away, or kept for the purpose of being sold, furnished, given away or possessed, contrary to law, or that such liquors are stored, temporarily or otherwise, in any depot, freight house, express office, or in any other building or place with the apparent intention of being delivered for the purpose of being sold, furnished or given away contrary to the provisions of this act, such magistrate shall immediately issue his warrant to any officer whom the complainant may designate, having power to serve criminal process, commanding him to search the premises described and designated in such complaint and warrant, and if such liquors are there found, to seize the same together with the vessels in which they are contained, and all the implements and furniture used and kept for such illegal manufacturing, importing, selling, furnishing, giving away, possessing, or storing of such liquors, and then safely keep and make immediate return on said warrant.' Mich.Pub.Acts 1917, No. 338, § 25, as amended.

In De La Mater the Michigan court held that the word 'shall' constituted a mandatory command to issue the writ, robbing the magistrate of authority to determine the question of probable cause under a provision of the Michigan constitution similar to our art. II, § 7. That court also relied upon the similar wording in the Fourth Amendment of the United States Constitution. If that statute was unconstitutional, certainly the one here under consideration is. To us the word 'shall' in this statute is used in the mandatory sense. Therefore, the statute deprives a court of the discretion which a court must exercise in finding probable cause as required by our Constitution and the United States Constitution. This particular portion of the statute is an integral part of the entire C.R.S.1963, 48--5--11(3) and is non-severable. Therefore, the entire sub-section (3) of the statute is declared to be unconstitutional. See White v. Anderson, 155 Colo. 291, 394 P.2d 333 (1964); Four-County Metropolitan Capital Improvement District v. Board of County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962); Denver v. Lynch, 92 Colo. 102, 18 P.2d 907 (1932); Mayor v. Shattuck, 19 Colo. 104, 34 P. 947 (1893). It follows, then, that the validity of the warrant is to be judged under Crim.P. 41 and, as we have indicated, it is sufficient under that rule.

II

The affidavit, upon which the warrant was predicated, was made by an officer of the Boulder Police Department assigned to the investigation of drugs violations. It recited that a detective of the Denver Police Department had made a report to the affiant; that an...

To continue reading

Request your trial
26 cases
  • State Of Wis. v. Sveum, 2008AP658-CR.
    • United States
    • Wisconsin Supreme Court
    • July 20, 2010
    ...Colorado and Maine, have similarly broadened by court rule the grounds for issuance of search warrants. See, e.g., People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970); State v. Cadigan, 249 A.2d 750 14. Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (referrin......
  • People v. Quintana
    • United States
    • Colorado Supreme Court
    • October 9, 1973
    ...We have ruled otherwise when, as here, the information is conveyed by one police officer to another police officer. People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970). III The People contend that the trial court erred in requiring disclosure of the informant's identity and in ordering the ......
  • People v. McKinstry
    • United States
    • Colorado Supreme Court
    • January 11, 1993
    ...is not consistent with existing case law. The law of our state does not require affidavits to be attached to warrants. People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970); People v. Ferris, 173 Colo. 494, 480 P.2d 552 (1971). Nor has it been found to be a substantive error to execute the wa......
  • State v. Peterson
    • United States
    • Florida Supreme Court
    • June 17, 1999
    ... ... McCormick, 309 F.2d 367, 372 (7th Cir.1962); Chin Kay v. United States, 311 F.2d 317, 320 (9th Cir.1962); People v. Leahy, 173 Colo. 339, 484 P.2d 778, 781 (1970); State v. Mickelson, 18 Or.App. 647, 526 P.2d 583, 584 (1974); State v. Austin, 641 A.2d 56, 58 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT