People v. McKinstry

• Decision Date: 11 January 1993
• Docket Number: No. 92SA295,92SA295
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Steven Charles McKINSTRY, Respondent.
• Court: Colorado Supreme Court

Page 18

843 P.2d 18

The PEOPLE of the State of Colorado, Petitioner, v. Steven Charles McKINSTRY, Respondent.

No. 92SA295.

Supreme Court of Colorado En Banc.

Jan. 11, 1993.

Alexander M. Hunter, Dist. Atty., Twentieth Judicial Dist., Bryan W. Quiram, Deputy Dist. Atty., Boulder, for petitioner.

Dixon and Snow, P.C., Steven Janiszewski, Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

The People bring this interlocutory appeal, pursuant to C.A.R. 4.1, challenging the district court's suppression of evidence seized during a search of the residence of the defendant, Steven Charles McKinstry. The district court determined that the search, although pursuant to a warrant, was illegal because not all of the requirements for the issuance of a warrant under Crim.P.Rule 41 and section 16-3-304, 8A C.R.S. (1986 Repl. vol.) had been met; specifically, the face of the warrant did not contain the name of the affiant. Upon consideration, however, we find that, despite the fact that the warrant facially did not conform to the literal requirements of Rule 41, the defendant's constitutional right to be free of unreasonable searches and seizures has not been violated. We therefore reverse the ruling of the district court.

I.

On February 11, 1992, the defendant was arrested ¹ and his residence searched pursuant to a warrant. Illegal drugs, drug paraphernalia and other items were seized by officers of the Boulder County Sheriff's Department. The face sheet of the warrant is a printed form on which the following language appears: "To ________, an officer authorized by law to execute search warrants within the County of Boulder, State of Colorado, having this date filed an affidavit for a search warrant ..." In the present case, no name was inserted in the blank but, instead, a handwritten line was drawn through the blank and a typed letter "y" was added after "an," making the phrase "any officer." The affidavit supporting the warrant was signed and submitted to a county judge by Detective Sharon Milligan of the Boulder County Sheriff's Office, who was one of the officers who later executed the warrant. When he signed the warrant, the judge initialled the affidavit and attachment to the warrant describing the items subject to the search. The warrant referred to the attachment, but not to the affidavit. When the warrant was executed and a copy left at the residence of the defendant, a copy of the affidavit did not accompany the warrant. The affidavit was included with the warrant when it was returned to the court after the search, although the two documents were not stapled together.

The defendant moved to suppress the drugs and other evidence found at his home, arguing that the warrant was invalid under Rule 41(d) and section 16-3-304 since it did not contain the name of the affiant on the face sheet. In agreeing with the defendant, the district court determined that strict compliance with the requirements of a search warrant is necessary in order not to nullify the express statutory requirement. Thus, the court held that the lack of a named affiant was fatal to the warrant. We reject this overly technical application of the warrant requirements. A proper affidavit was executed by an officer and reviewed by a judge before the search warrant was issued. Omission of the affiant's name on the face of the warrant was an immaterial variance. We therefore reverse the suppression order.

II.

A.

In our analysis, we first turn to the warrant clause and the mechanism by which it is enforced. The Fourth Amendment of the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article II, section 7 of the Colorado Constitution closely follows the federal provision:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.

This right to be free from unreasonable searches and seizures is well-protected. Should law enforcement officials conduct an unconstitutional search or seizure, any illegally obtained evidence is subject to the exclusionary rule which seeks to deter such wrongful action. See, e.g., United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974); People v. Fournier, 793 P.2d 1176, 1179 (Colo.1990). The United States Supreme Court has asserted "that the police must, whenever practicable, obtain advance judicial approval of searches and seizures." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Therefore, in the absence of one of the recognized exceptions to the warrant clause, e.g. exigent circumstances or hot pursuit, a search made without a warrant is unlawful and any evidence resulting from that search may be suppressed.

Likewise, a search made pursuant to an invalid warrant is also unlawful. In assessing the validity of the warrant, it is "to be tested in a 'common sense and realistic fashion.' " People v. Lamirato, 180 Colo. 250, 256, 504 P.2d 661, 664 (1972) (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965)). This approach recognizes the fact that often officers operate in novel circumstances under various pressures including time constraints, and unintentional and immaterial mistakes may be made. Thus we have stated that "[t]he standard for determining whether a search warrant complies with constitutional requirements is one of practical accuracy rather than technical nicety." People v. Ragulsky, 184 Colo. 86, 88, 518 P.2d 286, 287 (1974).

Therefore, highly technical attacks on warrants and affidavits are not well-received. United States v. Bowling, 351 F.2d 236, 237 (6th Cir.1965) ( citing Ventresca, 380 U.S. at 108, 85 S.Ct. at 746). This is because "[a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." Ventresca, 380 U.S. at 108, 85 S.Ct. at 746. Our public policy is to encourage officers to obtain warrants.

The traditional rationale underlying the doctrine of suppression supports this practical, as opposed to technical, approach. "[T]he sanction of the exclusionary rule is designed to effectuate guarantees against deprivation of constitutional rights." People v. Hamilton, 666 P.2d 152, 156 (Colo.1983) (citing Calandra, 414 U.S. 338, 94 S.Ct. 613) (emphasis added). Furthermore, "[v]iolations of statutory provisions are not per se violations of constitutionally protected rights." Hamilton, 666 P.2d at 156; People v. Wolf, 635 P.2d 213, 217 (Colo.1981). Thus, where an officer has obtained evidence in violation of a statute or regulation, the exclusionary rule is not triggered unless the unauthorized conduct also amounts to a constitutional violation. Fournier, 793 P.2d at 1179; People v. Thiret, 685 P.2d 193, 200 (Colo.1984). See also United States v. Caceres, 440 U.S. 741, 755, 99 S.Ct. 1465, 1473, 59 L.Ed.2d 733 (1979). This wary approach to the exclusionary rule is due to the fact that it operates as "a blunt instrument, conferring an altogether disproportionate reward not so much in the interest of the defendant as in that of society at large." United States v. Dunnings, 425 F.2d 836, 840 (2d Cir.1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970). In summary, the allegedly deficient warrant must be realistically assessed to determine if the deficiency impinges upon the defendant's constitutional rights and therefore triggers the suppression of evidence.

B.

We now consider the statutory and rule requirements by which the state legislature and this court have sought to secure the constitutional right to be free of unreasonable searches and seizures. We must determine whether failure to meet one of those requirements rises to the level of a constitutional violation, in light of the foregoing analysis.

Rule 41(d) states in part as follows:

(1) If the judge is satisfied that grounds for the application exist, or that there is probable cause to believe that such grounds exist, he shall issue a search warrant which shall:

(I) Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched;

(II) Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;

(III) State the grounds or probable cause for its issuance; and

(IV) State the names of the persons whose affidavits of testimony have been taken in support thereof.

Section 16-3-304(1) contains the identical language. For ease of reference, we will refer to the rule in this opinion as meaning both the rule and the statute.

By a careful comparison to the relevant constitutional provisions cited above, we note that the requirements of Rule 41 pertaining to the face of the warrant are not all constitutionally mandated. Under the plain language of the constitutional provisions, only requirements (I) and (II) must be described in the warrant. The last two--stating the grounds for probable cause and the names of the affiants--are encompassed by the constitutional provisions, but neither constitution specifically requires that they appear on the face of the warrant. See United States v. McCoy, 478 F.2d 176, 179 (10th Cir.1973) (Fourth Amendment does not require that the name of the affiant be set forth in the warrant itself). Cf. Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 1692, 60 L.Ed.2d...