State v. Constanzo, 8093
Decision Date | 23 November 1954 |
Docket Number | No. 8093,8093 |
Citation | 76 Idaho 19,276 P.2d 959 |
Parties | STATE of Idaho, Plaintiff-Respondent, v. Ralph CONSTANZO, Defendant-Appellant. |
Court | Idaho Supreme Court |
Charles F. Reddoch, Charles S. Stout, Boise, for appellant.
Robert E. Smylie, Atty. Gen., Edward J. Aschenbrener, Asst. Atty. Gen., Blaine F. Evans, Pros. Atty., J. Charles Blanton, Deputy Pros. Atty., Boise, for respondent.
Prior to his trial for and conviction of receiving stolen property in violation of Section 18-4612, I.C., appellant, by timely motion, sought to suppress from evidence the stolen cigarettes as obtained by an illegal search and the denial of such motion is the principal assignment of error.
The affidavit for the warrant described the premises to be searched as:
'* * * in a certain space under the building known and designated as the Roma Club, located in Garden City, Idaho, occupied by and under the control of said Ralph Constanzo, * * *.' The warrant commanded search----
'* * * of the Roma Club, situated in Garden City, Idaho, * * *.'
The description of the premises in the warrant should conform to the description in the affidavit. Burns v. State, 92 Okl.Cr. 24, 220 P.2d 473.
If the description in the warrant be restricted, but is included in the description in the affidavit, the warrant is less subject to being considered invalid than if the description in the warrant comprehends more than the affidavit.
The affidavit is the sole basis and justification for the issuance of the warrant and the description in the affidavit controls and circumscribes the description in the warrant. Section 19-4403, I.C.
'Purkey v. Maby, 33 Idaho 281, 282, 193 P. 79. (Emphasis added.)
The above case supports the principle that the search warrant may not go beyond the description in the affidavit. If, however, the description in the warrant reasonably encompasses the description in the affidavit, the search to the extent only of the description in the affidavit is not invalid. The description in the warrant 'of the Roma Club' did not exclude any part thereof and thus, at the time the motion to suppress was denied, the court was justified in considering the warrant was good as to the limited description in the affidavit, namely, a place under the Roma Club; People v. Lienartowicz, 225 Mich. 303, 196 N.W. 326; People v. Ranes, 230 Mich. 384, 203 N.W. 77, and the search was made only in the basement, which was 'in a certain space under the building known and designated as the Roma Club. * * *'
'Although a search warrant is void if it attempts to describe a place to be searched which is not described in the affidavit for the search warrant, as pointed out in the cases relied on by appellant, yet it does not follow that there must be an exact uniformity between the two instruments. The rule is based upon the necessity of having the affidavit designate the place to be searched as a basis for issuance of the warrant. It must not be carried to the technical limit, ignoring the proposition that the purpose of the affidavit and of the search warrant is to point out with reasonable certainty the premises to be searched. We conclude that on this record the fact that the search warrant referred in one place to Peeples v. State, 216 Miss. 790, 63 So.2d 236, 239.
The entire building in which the Roma Club was located, including the club and the basement and all spaces under it, were in and under the sole and exclusive possession, dominion and control of appellant. While there was some evidence appellant indicated to Cochran (later stated to be the thief, but not to appellant) he could temporarily occupy a room in the basement, which room was not definitely shown nor the length of time it was so occupied, if at all.
Since the search did not extend beyond the place designated in the affidavit, it was not invalid and did not violate appellant's rights. Pickens v. State, 70 Okl.Cr. 301, 106 P.2d 127; 39 A.L.R. 841.
Respondent urges appellant consented to the search, obviating reliance on the warrant. Since the warrant was sufficient to justify the search and the admission of the cigarettes thereby found in the basement, it is unnecessary to consider this point, except to state that while it is recognized a constitutional search without a warrant, or where the warrant is invalid, may be made where consent is given, State v. Arnold, 52 Idaho 349, 15 P.2d 396, the consent must be free and clear of any coercive effect of an invalid search warrant, Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301, at page 305, and the doctrine of consent search is to be applied with caution and circumspection.
Appellant challenges the sufficiency of the evidence to sustain the verdict, particularly as not showing guilty knowledge by appellant, that is, that he received the cigarettes knowing them to have been stolen.
The officers went to the Roma Club, appellant's place of business, in the forenoon and secured permission to look around outside the premises and found approximately a case and a half of the stolen cigaretts (all burglarized in Wallace) in a recess or space through an opening in the outside wall of the basement of the Club building. Appellant denied knowledge of them or of having any connection with them and told the officers to take them away. On this trip he first denied he knew Cochran, but on being shown his picture, appellant admitted knowing him.
When the officers returned in the afternoon with the search warrant, they testified they found an empty cardboard case by a stove and cartons of cigarettes (identified as stolen and previously taken from the case) in the stove where appellant said he had put them to keep them cool and that Cochran had brought the cigarettes to appellant to keep for him.
Appellant thus denied the above:
'Q. What did they find? A. Upstairs they find anything, but downstairs they find 21 cartons of cigarettes that was right on the cook stove.
'Q. Did you put those cigarettes in that stove? A. No, I did not.
'Q. Did you ever receive any cigarettes from Floyd Cochran? A. No, sir.
'Q. Did you know the cigarettes were in the stove? A. No, I didn't know anything about it.
'Q. You heard the testimony here of Frank Boor and Rosecrans to the effect that you said that you had put those cigarettes in the stove; what have you to say at that? A. They lie, they didn't tell the truth because I never even speak to them. I never said a word.
* * *
* * *
'
'
'
* * *
* * *
...
To continue reading
Request your trial-
State v. Bock, 8535
...50 Idaho 166, 295 P. 432; State v. Hargraves, 62 Idaho 8, 107 P.2d 854; State v. Mundell, 66 Idaho 297, 158 P.2d 818; State v. Constanzo, 76 Idaho 19, 276 P.2d 959. It has also long been the rule in this state that admissions of the accused whether made before or after arrest are admissible......
-
State v. Oropeza
...340 P.2d 444, 446 (1959). Accord, State v. Arregui, 44 Idaho 43, 254 P. 788 (1927).2 See I.C. §§ 19-4403 and 19-4405; State v. Constanzo, 76 Idaho 19, 276 P.2d 959 (1954); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973).3 See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 ......
-
State v. Adams
...sua sponte to modify sentences found to be unduly harsh and excessive when the interests of justice so required. In State v. Constanza, 76 Idaho 19, 276 P.2d 959 (1954), for instance, though the Court noted that the issue had not been raised by defendant, the sentence of five years for conv......
-
Ocker v. State
...P.2d 237 (1959); Pitts v. State, 324 P.2d 546 (Okla.Cr.App.1958); Guedea v. State, 162 Neb. 680, 77 N.W.2d 166 (1956); State v. Constanzo, 76 Idaho 19, 276 P.2d 959 (1954); People v. Weil, 282 App.Div. 981, 125 N.Y.S.2d 503 (1953); Commonwealth v. Hawk, 328 Pa. 417, 196 A. 5 (1938); Montalt......