People v. Padilla

• Decision Date: 25 June 1973
• Docket Number: No. 25189,25189
• Citation: 182 Colo. 101,511 P.2d 480
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David James PADILLA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 480

511 P.2d 480

182 Colo. 101

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David James PADILLA, Defendant-Appellant.

No. 25189.

Supreme Court of Colorado, In Department.

June 25, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Jack E. Hanthorn, Robert C. Lehnert, Asst. Attys. Gen., Denver, for plaintiff-appellee.

William W. Downs, Denver, for defendant-appellant.

LEE, Justice.

David James Padilla was convicted by a jury in the Jefferson County district court of possession of narcotic drugs in violation of C.R.S.1963, 48--5--2. He asserts the trial court committed numerous prejudicial errors which require reversal of his judgment of conviction. We agree that prejudicial error was committed in the failure of the trial court to grant Padilla's motion to suppress evidence and we therefore reverse.

The facts and circumstances giving rise to the seizure of the marijuana which formed the basis of defendant's conviction are summarized hereafter. The Lakewood police suspected that defendant was trafficking in marijuana and that the drug was stored in an automobile owned by defendant, which he kept on the parking lot of the place of his employment. Officer Stewart and one Sylvia Mason (a confidential informant) had purchased marijuana from the defendant on two prior occasions. On the basis of this experience, Officer Stewart sought to obtain a search warrant from the county court authorizing a search of the defendant's vehicle. We hold that Officer Stewart's affidavit did not comply with constitutional requirements and was therefore insufficient to support the issuance of the search warrant pursuant to which the defendant's vehicle was searched and the incriminating drugs were seized.

In obtaining the search warrant, Officer Stewart presented the county judge with an unsigned affidavit which the court initially found to be insufficient. After discussion between the officer and the judge in order to develop additional facts and circumstances to show probable cause, the judge amended the affidavit by inserting therein in his own handwriting additional facts, after which Stewart signed the affidavit under oath. The search warrant then issued.

We set forth the body of the affidavit in Haec verba, showing the judge's handwritten insertions in italics:

'The undersigned, an officer authorized by law to execute warrants within the County of JEFFERSON State of Colorado, being duly sworn deposes and says: That he (has reason to believe) that on In the vehicle known as _ _ in the County of JEFFERSON State of Colorado, there is now located certain property, to wit: A 1969 Chevrolet, Bearing Colorado 1970 License AW8400. Parked in the Lemon Tree Parking Lot 11495 West Colfax Avenue, name of owner being unknown, but believed to be David J. Padilla Certain property which is designed or intended for use of which is or has been used as a means of committing a criminal offense, or the possession of which is illegal, or which would be material evidence in a subsequent criminal prosecution, and the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows:

'1. Defendant has made two sales of Marihuana to writer and a confidential informant.

'2. Each time he left the Lemon Tree and went to the rear of the parking lot.

'3. His vehicle was parked in the rear of the lot.

'4. When he returned he had marihuana in his possession.

'5. That said vehicle is now, and at this time parked on said parking lot and that said seller of said Narcotic Drug is at present in said Lemon Tree Lounge, and that affiant has probable cause to believe that said Narcotic Drug is now within said vehicle.

/s/ 'Kenneth L. Stewart

_ _

Signature of Affiant.'

Officer Stewart and his confidential informant, armed with the warrant, proceeded to the defendant's place of employment, the Lemon Tree Lounge, where the warrant was served upon defendant and defendant was then placed under arrest. Defendant's vehicle was then searched and nine 'lids' of marijuana were seized.

I.

It is fundamental under our constitution that in order to support the issuance of a search warrant the issuing magistrate must be apprised 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 warrant. Colo.Const. art. II, § 7; People v. Brethauer,174 Colo. 29, 482 P.2d 369; Hernandez v. People, 153 Colo. 316, 385 P.2d 996. In determining whether the affidavit is sufficient, the magistrate must look only within the four corners of the affidavit. Verbal communications to the magistrate of additional supporting information cannot correct an affidavit which is basically deficient in its statement of the underlying facts and the circumstances relied upon. Brethauer, supra.

Ignoring the lack of clarity in the composition of the affidavit, it is glaringly deficient in the following particulars. It asserts a 'defendant,' unnamed, made two sales of marijuana to the writer (affiant) and a confidential informant. There is no reference to any pending case from which the identity of the defendant might be established. Of course, this proceeding against the defendant Padilla had not been commenced at the time the affidavit was executed. Further, and more significant, there is no time reference as to when the purchases of marijuana were made from the unnamed seller. It is not known from a reading of the affidavit whether the sales were recent in time or so remote as to be of no support for a reasonable conclusion that narcotics were then present in the car to be searched. Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966); McMiken v. State, 127 Ga.App. 66, 192 S.E.2d 716; Edwards v. State, 13 Md.App. 546, 284 A.2d 10; Jarvis v. State, 507 P.2d 918 (Okl.Cr.App.1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). See also, Annot. 100 A.L.R.2d 525, § 3, and Later Case Service.

In People v. Schmidt, Colo., 473 P.2d 698, which the People cite in support of the affidavit here, there was a specific time reference, which is absent here. The Schmidt affidavit showed a lapse of only five days from the last observation of the narcotic drug in the premises to be searched, until the date of the affidavit and search warrant. We do not have here, as in Schmidt, a series of transactions extending over a period of time from which a reasonable inference could be drawn that probably continued illegal activity was taking place. Schmidt, supra, lends no support to the People's position here.

It is apparent from the record that after the initial rejection of the affidavit the officer and the county judge in their effort to bolster the affidavit did discuss in detail the factual background which led the officer to seek the search warrant. Their failure to include these details, however, renders the affidavit inadequate.

We are not unaware that 'technical requirements and elaborate specificity' are not required in the drafting of affidavits for search warrants. United States v....