Benjamin Zesch v. The People of the State of Colorado

No. 21366. Benjamin Zesch v. The People of the State of Colorado. (409 P.2d 522) Decided January 10, 1966. Ben Klein, for plaintiff in error. Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John P. Moore, Assistant, for defendant in error. En Banc. [MAJORITY — Mr. Chief Justice Pringle] Mr. Chief Justice Pringle delivered the opinion of the Court. This is a search and seizure case. The Attorney General confesses that the trial court erred in admitting into evidence the fruits of the search and points out that the search warrant in issue here is constitutionally invalid under the express language of Hernandez v. People, 153 Colo. 316, 385 P.2d 996, and Aguilar v. Texas, 378 U.S. 108, 84 Sup. Ct. 1509, 12 L. Ed.2d 723. We agree. The search warrant was obtained upon an affidavit based on testimony of a policeman whose only source of information was a telephone call to the police department by a person who refused to give his name. Such an affidavit does not meet the constitutional requirement set forth in Hernandez and Aguilar, supra. The judgment is reversed and the cause remanded to the trial court for further proceedings not inconsistent with the views herein expressed.