Summary
In Malone the officer executing a valid search warrant entered an outer door and proceeded down some stairs to an inner door where he knocked for the first time. After being admitted to the premises by the defendants, he identified himself as a police officer and conducted the search.
Summary of this case from People v. CampbellOpinion
No. 25132
Decided June 1, 1971
Interlocutory appeal from an order of the trial court denying defendant's motion to suppress evidence seized pursuant to a search warrant.
Ruling Affirmed.
1. SEARCHES AND SEIZURES — Statements — Officer — Affidavit — Erroneous and False — Stricken — Warrant. A police officer's factual statements in an affidavit that are erroneous and false must be stricken and may not be considered in determining whether the affidavit will support the issuance of a search warrant.
2. Affidavit — Facts — Support — Issuance of Warrant — Not Completely Accurate — Valid. Where an affidavit still contains material facts sufficient as a matter of law to support the issuance of a warrant after deletion of erroneous statements, the warrant in such case will not be struck down because the affidavit is not completely accurate.
3. Officer — Entry — Outer Door — Knocked — Admitted to Premises — Identification — Method — Proper. Where officer entered an outer door and then proceeded down some steps to an inner door, where he knocked for the first time, and where, after being admitted to the premises voluntarily by one of the defendants, he identified himself as a police officer, and the disputed search was then conducted pursuant to warrant, held, under the circumstances, the method of entry was wholly proper, and is not subject to successful attack.
Interlocutory Appeal from the District Court of Pueblo County, Honorable Whitford M. Myers, Judge.
Carl Parlapiano, District Attorney, Daniel J. Sears, Deputy, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Darol C. Biddle, Deputy, for defendants-appellants.
The defendants, Charlene Jo Malone and Jack S. Malone, are charged with possession and conspiracy to possess a narcotic drug for sale. They bring this interlocutory appeal from an order of the trial court denying their motion to suppress evidence seized pursuant to a search warrant.
[1,2] The defendants contend that where allegations contained in an affidavit for a search warrant is void, irrespective of whether the affidavit includes additional information sufficient to constitute probable cause. We cannot agree. Clearly, a police officer's factual statements in an affidavit that are erroneous and false must be stricken and may not be considered in determining whether the affidavit will support the issuance of a search warrant. See the consolidated cases of Woods and Miles v. People, 175 Colo. 34, 485 P.2d 491, People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971). However, where, as here, the affidavit still contains material facts sufficient as a matter of law to support the issuance of a warrant after deletion of the erroneous statements, we will not strike down the warrant because the affidavit is not completely accurate. Woods and Miles v. People, supra.
[3] The defendants also contend that even if the search warrant was properly issued, the validity of the search was vitiated by the method of entry. In People v. Lujan, 174 Colo. 554, 484 P.2d 1238, we held that where police officers armed with a search warrant for narcotics have reason to believe that announcement of their purpose would lead to the destruction of evidence, a forced entry without first identifying themselves and their purpose is not unreasonable under the Fourth Amendment to the United States Constitution. Here, the officer entered an outer door and then proceeded down some steps to an inner door, where he knocked for the first time. After being admitted to the premises voluntarily by one of the defendants, he identified himself as a police officer, and the disputed search was then conducted. Under these circumstances, the method of entry was wholly proper, and is not subject to successful attack.
Ruling affirmed.