Colorado § 16-3-304 - Search warrants - contents.

§ 16-3-304. Search warrants - contents.

(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:

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

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

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

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

(2) The search warrant may also contain such other and further orders as the judge deems necessary to comply with the provisions of a statute, charter, or ordinance, or to provide for the custody or delivery to the proper officer of any property seized under the warrant, or otherwise to accomplish the purposes of the warrant.

(3) Unless the court otherwise directs, every search warrant authorizes the officer executing the same:

(a) To execute and serve the warrant at any time; and

(b) To use and employ such force as is reasonably necessary in the performance of the duties commanded by the warrant.

Source: L. 72: R&RE, p. 201, § 1. C.R.S. 1963: § 39-3-304.

ANNOTATION

I. General Consideration.

II. Description of Premises, Place, Etc.

III. Description of Property.

I. GENERAL CONSIDERATION.

Annotator's note. (1) Since § 16-3-304 is similar to repealed § 39-2-6, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

(2) For further annotations concerning search and seizure, see § 7 of art. II, Colo. Const., and Crim. P. 41.

A search warrant should not be broader than the justifying basis of facts. People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975).

Standard for compliance with constitutional requirements is one of practical accuracy. The 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, 518 P.2d 286 (1974); People v. Martinez, 898 P.2d 28 (Colo. 1995); People v. Schrader, 898 P.2d 33 (Colo. 1995).

The test for determining whether the sufficiency of a description in a search warrant is adequate is if the officer executing the warrant can with reasonable effort ascertain and identify the place intended to be searched. People v. Ragulsky, 184 Colo. 86, 518 P.2d 286 (1974).

Omission of affiant's name on the face of a search warrant was an immaterial variance which did not invalidate warrant where proper affidavit had been executed by an officer and reviewed by a judge prior to issuance. People v. McKinstry, 843 P.2d 18 (Colo. 1993).

II. DESCRIPTION OF PREMISES, PLACE, ETC.

Warrant describing house as within Denver when in fact the house lay one-half block outside Denver was not for that reason invalid. People v. Martinez, 898 P.2d 28 (Colo. 1995).

Technical perfection not required. Where warrant specified a street address that was adjacent to defendant's residence and owned by the same owner, and defendant's residence was not itself searched, both the warrant and the search were valid. People v. Schrader, 898 P.2d 33 (Colo. 1995).

Not every violation of this section requires suppression of evidence under the exclusionary rule. Where search warrant was executed one-half block outside officers' jurisdiction, but city boundaries were not clear and officers promptly notified the proper authorities when the error was discovered, no violation of defendant's constitutional rights occurred. People v. Martinez, 898 P.2d 28 (Colo. 1995).

This section requires that a warrant particularly describe the place to be searched. People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971).

Warrant must describe apartment unit by number or name of tenant. When authority is desired to search a particular apartment or apartments within an apartment building, or a particular room or rooms within a multiple-occupancy structure, the warrant must sufficiently describe the apartment or subunit to be searched, either by number or other designation, or by the name of the tenant or occupant. People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971).

And description by street address is insufficient. When the officers knew or should have known that the house was not a one-family residence, and the fact that the officers had notice of the separate dwelling facilities located in the basement is evident from the affidavit of an officer, the general rule as to multiple-occupancy structures is applicable, and a warrant describing the entire house by street address only, without reference to the particular dwelling unit or units sought to be searched, is constitutionally insufficient since no facts were presented which would show that there was probable cause to believe that criminal activity was occurring in both dwelling places. People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971).

Exception if officers unaware house is multifamily and if search confined. The general rule of law when dealing with searches made in rooming houses or apartment houses is subject to an exception, among others, where the officers did not know, nor had reason to know, that they were dealing with a multifamily dwelling when obtaining the warrant, and providing that they confine the search to the area which was occupied by the person or persons named in the affidavit. People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971).

Search warrant failing to designate subunits of multiple-occupancy structure to be searched met the requirement that place to be searched be described with particularity where it was reasonable for the police to conclude that the structure was not divided into subunits. People v. McGill, 187 Colo. 65, 528 P.2d 386 (1974).

III. DESCRIPTION OF PROPERTY.

The description in a search warrant of items to be seized must be specific. People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975).

Search warrant reasonably specific under circumstances. People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979).

In determining whether warrant is too general, the nature of the property to be seized must be considered. People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979); People v. Ball, 639 P.2d 1078 (Colo. 1982); People v. Hill, 690 P.2d 856 (Colo. 1984).

Burden of connecting articles not described with crime is upon the state. When a defendant demonstrates that an article is not specifically described in the search warrant, and when it is not per se connected with criminal activity, the burden of showing that it is so connected falls upon the state. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Failure to show connection requires their return. Money seized belonging to the defendant must be returned, when it was not mentioned in the warrant and was not per se connected with criminal activity, when the state failed to show a nexus between the money seized and criminal activity, and when the defendant testified that the money had been lent to him by family members and friends to defray the cost of his daughter's funeral. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Currency was described with reasonable certainty. Where the search warrant correctly described a $20 bill with the exception of the last character of the serial number which was illegible, the likelihood of defendant's possession of another bill with nine identical characters, all in the same sequential order, and having a different tenth character from the bill described in the search warrant was highly improbable, and hence, there was probable cause to seize the bill as there was reasonable certainty of description. People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971).

Effects intermingled with drugs were validly seized. Where objection was made to the seizure of the particular personal effects which serve to identify the person or persons residing at and in control of the premises searched and the record indicates that these personal effects were intermingled with the suspected narcotics and dangerous drugs found on the premises, it was held that these personal effects, which bore the names of the defendants, were validly seized since these items might well serve to establish elements of the crimes for which defendants were charged and for which the search warrant was issued. People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971).

Warrant not insufficient on its face. Command portion of search warrant which read: "you are therefore commanded to search forthwith the _________ above described property for the property described" did not render the warrant insufficient on its face where the property to be searched had been specifically described "above" two times and where the property to be seized likewise had been described above as "amphetamines, barbiturates, opium, opium derivatives, and other synthetic narcotics and implements used in the traffic and in the use of narcotic drugs". People v. Ragulsky, 184 Colo. 86, 518 P.2d 286 (1974).