People v. Superior Court of Puerto Rico

Mr. Justice Dávila delivered the opinion of the Court. The residence of Juan B. Pérez was searched by virtue of a warrant issued by a judge. Material used in the game — 22 — declared illegal by Act No. 220 of 1948 was seized — 33 L.P.R.A. § 1247 et seq. — as well as money in cash. The district attorney filed an information for a violation of that Act. Prior to the day set for the hearing of the case, defendant requested that the material and the money seized be returned to him. He alleged that the search had been illegal. The motion filed alleges, among others, the following reasons in support of the illegality of the search: “. . . no probable cause appears from the affidavit to believe in the existence of the grounds on which the search warrant was issued, since such affidavit, the only one presented to the issuing magistrate, does not contain a description of the material to be seized to show that it was material possessed and handled in violation of Act No. 220 of 1948, because the affidavit nowhere alleges a violation of the Act supra, and because between the date the officer alleges having seen material of the kind being handled, August 19, 1963, and the date of the affidavit, October 20, 1963, an unreasonable period of time has elapsed, the date of observance of the facts by the policeman being too remote to enable the magistrate who issued the search warrant on October 20, 1963, to determine whether the evidence sought to be seized could still be in the premises to be searched, and because the affidavit fails to state the place where to find the paper containing the pencil-written numbers mentioned therein.” The trial court granted the motion. In deciding the same, it said: “The court grants defendant’s motion to decree the illegality of the search carried out by virtue of the search warrant issued in this case, in the belief that the affidavit made by agent José Robles Robles was altogether insufficient since nowhere is it stated therein that he observed any illegal operation in defendant’s house to warrant the issuance of the search warrant to invade his residence. The search is hereby declared null and void, and the court advises that it will not admit in evidence the result of such search, if any.” (Italics ours.) — 23 — The State asked us to review that order. We acceded. Our Constitution provides in § 10 of the Bill of Rights that “No warrant for arrest or search and seizure shall issue except by judicial authority and only upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons to be arrested or the things to be seized.” (Italics ours.) The preceding provision appears after affirmatively establishing in the first part of the section that “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.” This provision consecrates one of the most precious rights of the individual, the inviolability of his home. Since ancient times it is recognized in the Spanish laws. Sections 6, 7 and 81 of the Civil Political Pact between the Kingdom and Don Alfonso IX made in the Cortes de León of 1188, embrace the provisions in the Fuero de León approved by the Cortes in 1020, guaranteeing the inviolability of the home. See José Ramírez Santibáñez, Aventando Cenizas, Estudio Comparativo entre el Ordenamiento de León de 1188 and the British Magna Charta of 1215, pp. 61-65 and 106 (San Juan, 1922). The Fourth Amendment to the Constitution of the United States2 of America consecrates it as — 24 — a fundamental right of every American citizen. See Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361 (1921). In Ker v. California, 374 U.S. 23, 32 (1963), the Supreme Court of the United States said: “Implicit in the Fourth Amendment’s protection from unreasonable searches and seizures is its recognition of individual freedom. That safeguard has been declared to be ‘as of the very essence of constitutional liberty’ the guaranty of which ‘is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen . . .’ Gouled v. United States, 255 U.S. 298, 304 (1921); cf. Powell v. Alabama, 287 U.S. 45, 65-68 (1932). While the language of .the Amendment is ‘general,’ it ‘forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made. . . .’ Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931). Mr. Justice Butler there stated for the Court that ‘[t]he Amendment is .to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted.’ Ibid. He also recognized that ‘[t]here is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.’ Ibid.; see United States v. Rabinowitz, 339 U.S. 56, 63 (1950); Rios v. United States, 364 U.S. 253, 255 (1960).” Our constitutional provision and the Fourth Amendment, therefore, emphasize that search warrants shall issue only upon probable cause. “In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated — 25 — on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.” Dumbra v. United States, 268 U.S. 435, 441 (1925); United States v. Moriarity, 327 F.2d 345, 348 (3d Cir. 1964); People v. Fino, 199 N.E.2d 151 (N.Y. 1964). In People v. Rivera, 79 P.R.R. 697, 702 (1956), citing from Brinegar v. United States, 338 U.S. 160, 175 (1949), we said that “In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” As recently as March 1964, in Rugendorf v. United States, 376 U.S. 528, 11 L.Ed.2d 887, 891 (1964), the Supreme Court of the United States again has said that the search warrant is sufficient as long as the affidavit provides a substantial basis to support the conclusion that the object to be seized is found in the premises to be searched. Jones v. United States, 362 U.S. 257, 271 (1960). And in Aguilar v. Texas, 378 U.S. 108 (decided June 15, 1964), it said that “although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant . . . the magistrate must be informed of some of the underlying circumstances” from which probable cause may be reasonably inferred for issuance of the search warrant. The foregoing having been established, let us consider the affidavit which served as basis to issue the search warrant. On October 20, 1963, José Robles Robles appeared before a justice of the peace and asserted under oath “that on — 26 — Monday, August 19, 1963, around 7:00 a.m., I saw Juan Pérez, known as ‘Delfo,’ checking a list on brown rag paper on which were written in pencil three-digit numbers followed by a hyphen and other amounts to the right, in the company of an individual whom I know as Francisco, who shortly before had arrived in a yellow Plymouth car, license plate 801-069. That I saw when Juan Pérez, known as ‘Delfos,’ handed money to Francisco and went inside his house at 985 Puerto Principe Street, Las Américas urbanization, of Río Piedras, P.R.” It is set forth in the affidavit that on a given date, August 19, around 7:00 a.m., the affiant saw Juan Pérez, known as Delfos, checking a paper list on which were written in pencil three-digit numbers followed by hyphens and other amounts to the right, in the company of another person, and that he saw when he went inside his house, which he describes. The affidavit recites only a specific act which occurred on August 19. The affiant did not state in the affidavit that Juan Pérez used to receive, check, and handle bolita material in his residence, nor that he had seen him prior or subsequent to the specific date stated receiving, checking, or handling bolita material in his residence. Affiant’s description of the occurrence in his presence was sufficient for a prudent and reasonable person to believe that the material used in the illegal bolita game was probably found on that date in the house described in the affidavit. The affiant specifically asserted that he saw Juan Pérez, known as Delfos, handling “a rag paper list” containing “three-digit numbers followed by hyphens and other amounts to the right,” from which the magistrate could indeed infer that those lists “could not be used for anything except bolita game.” People v. Mantilla, 71 P.R.R. 35, 50 (1950). However, in order to determine probable cause, the time elapsed since the facts were observed until application was — 27 — made for a search warrant is of utmost importance. It is most important because, as we have said, the order shall issue upon probable cause, and if the facts observed are remote, it cannot be reasonably asserted that there is probable cause at the time of applying for the warrant. In Figueroa v. District Court, 72 P.R.R. 23, 29 (1951), we said that “the affidavit upon which a search warrant issues shall state the date on which the commission of the offense was observed by affiant and that said statement in the testimony is essential for the validity of the warrant and that there does not exist a probable cause for the issuance of the same in the absence of said requisite.” We said that this was so because the facts could have occurred long before applying for the search warrant, and “the probable cause for the issuance of the warrant may not exist at the time in which it was issued.” And in People v. Albizu, 77 P.R.R. 851, 857 (1955), we said: “Our statute does not provide for a specific period of time, after the occurrences, within which the affidavit supporting the search warrant should be made. Said affidavit, however, must set forth facts so closely related to the time of the issue of the warrant as to justify a conclusion of probable cause at that time, Sgro v. United States, 287 U.S. 206, 77 L.Ed. 260. That is why an affidavit should be made within a reasonable time after the affiant becomes acquainted with the facts reported therein, it being part of the judicial function, in determining whether there is probable cause, to judge, in each case, whether the facts set forth are so remote that they do not render probable the existence of cause for the search. See the Annotations in 162 A.L.R. 1411 and 1414 et seq. In the instant case the facts set forth by the applicant are not remote since they took place only three days before the affidavit was made. That is why we cannot agree with appellant in his argument that because the affidavit was made three days after the occurrences, the warrant issued by virtue thereof is void.” — 28 — And in People v. Rivera, supra, we said at p. 706: . . In other words, it is the affidavit which should state the date on which the commission of the offense was observed so that the judge, before authorizing the search warrant, may determine whether or not it is too remote and whether the evidence sought to be seized may still be at the place to be searched.” In the aforecited cases this Court clearly established that the supporting affidavit for a search warrant should be made within a reasonable period after the affiant has learned of the facts to be therein stated. In Albizu we cited the Annotation appearing in 162 A.L.R. 1406, where in summing up the case law it is said that any term exceeding 30 days is unreasonable. In the case at bar affiant asserted that on August 19, 1963, he observed the facts on which he based his application for issuance of the search warrant, and it was not until the following October 20, 62 days later, that he appeared before a magistrate to apply for the search warrant. Could the issuing magistrate reasonably conclude that the bolita material was still found in the residence of Juan Pérez? The facts on which the petition was based had occurred 62 days before. We do not believe that it could be reasonably concluded that the situation prevailing on August 19 subsisted 62 days later. The fact that on August 19 the owner of a residence had bolita material in his possession does not mean that that situation still existed on the following October 20. We fail to see how it can be asserted that, because of the fact that a person standing in front of his house and before entering “was checking a list on brown rag paper on which were written in pencil three-digit numbers followed by hyphens and other amounts to the right,” it is normal and reasonable to conclude that there was probable cause two months later to believe that there was material of illegal bolita game in that house. It is an — 29 — isolated act. There is nothing to warrant the inference that the situation described in the affidavit still existed two months later. No assertion is made in the affidavit to the effect that subsequent to August 19 activities in connection with bolita were observed in the residence sought to he searched. If a search warrant could be issued under these circumstances, we would be disregarding the constitutional protection. And it should always be recalled that the constitutional guarantee constitutes a restriction on the official conduct and a protection to the citizen. It is well to repeat that in Ker the Federal Supreme Court reiterated that the Fourth Amendment “is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted.” As we stated in Albizu, the facts on which a petition for a search warrant is based must be so closely related to the time of the issue as to justify a conclusion of probable cause at that time. That is why the application should be made “within a reasonable period after the affiant becomes acquainted with the facts reported therein.” The right of every citizen to be respected in the tranquillity of his home is too fundamental for remote facts to warrant the issuance of a search warrant. In Schoeneman v. United States, 317 F.2d 173 (D.C. Cir. 1963), the defendant was a business procurement specialist in the Navy Department in Washington. Markham, the other defendant, was a representative in the capital of companies seeking government contracts. In July 1960 Schoene-man and Markham organized a firm for the purpose of representing small businesses interested in selling supplies to the Government, utilizing Schoeneman’s inside information. In the course of carrying on this business Schoeneman supplied Markham with confidential information dealing with future purchases by the Navy Department. In an — 30 — attempt to interest one Heins, on February 15, 1961, he took him to his home and displayed to him the confidential information. Heins passed the information on to the F.B.I. On June 2, 1961, the F.B.I. agent appeared before a Federal Commissioner and applied for a search warrant. The warrant was granted and incriminating evidence was seized. Schoeneman and Markham were indicted. The search warrant was challenged. In the supporting affidavit the F.B.I. agent alleged that he had confidential information furnished by a person who formerly was an employee of the Department of Justice and the Treasury Department of the United States, stating that he had seen in Markham’s home on February 15, 1961, confidential government documents. In determining that there was no probable cause for the search at the time of applying for the warrant because of the time elapsed since the observation of the fact, the Court of Appeals for the District of Columbia stated as follows at p. 177: “Thus .the critical question here is whether the affidavits when presented to the commissioner gave probable cause to believe that the Government documents were still on the premises. The Government relies quite heavily upon the nature of the conspiracy ultimately revealed to show that it was entirely probable that the books seen on February 15 were on the premises on June 2. However, the elaborate plot later developed is not described in the affidavits. It is merely alleged that certain books were seen in Markham’s house. There is no allegation that the books had not been moved in the intervening three and one-half months or, indeed, that Markham himself had not moved. To support a search warrant the proof supplied ‘must speak as of the time of the issue of [the] warrant. The commissioner ha[s] no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the .... warrant is issued.’ Sgro v. United States, supra, Note 9, at 211, 53 S.Ct. at 140. (Emphasis added.) If commissioners are to serve a useful — 31 — function in protecting citizens against arbitrary searches, probable cause must be determined as of the time the warrant is issued and not with the benefit of hindsight.” It is clear that a rigid rule cannot be established as to the period of time which may elapse from the time the facts are observed and application for a search warrant is made. What is reasonable in one case may be unreasonable in another. The fact that the lawmaker established in the Act a 10-day period to execute the search warrant and was silent on the period which may elapse between the observation of the fact and the application for the search warrant, seems to confirm the foregoing. Each case should be considered in the light of its particular circumstances. Notwithstanding the foregoing, an excessively long period should not elapse between the observation of the facts and the application for the warrant, since, as already stated, the probable cause should exist as near as possible to the date application is made for issuance of the search warrant. It is most interesting to note that the period of time considered reasonable by the courts varies substantially. Four days between the occurrence of the fact and the application for search has been considered excessive, People v. Siemieniec, 118 N.W.2d 430 (Mich. 1962). It is generally recognized that a 20-day period is reasonable, and that in excess of 20 days, up to 30, it may be justified according to the circumstances present in each case. It has also been held that if a period exceeding 30 days has elapsed, the search warrant should not be issued in the belief that the probable cause required by the constitutional provision no longer exists. In I Varón, Searches, Seizures and Immunities 321, 322, the time factors are set out in the following terms: “(1) A specific statement in the affidavit for a search warrant of the time when the alleged offense was observed is — 32 — essential for the validity of the search warrant based upon such affidavit. “(2) Such statement as to the time of the alleged offense must be clear and definite and must not be too remote from the time of the making of the affidavit and issuance of the search warrant. “(3) Whether a particular statement as to time is sufficiently clear and definite to comply with the requirement of the rule stated under (2) depends on the circumstances and the context in which the statement is made. “(4) There is no rigid rule for determining whether the stated time of observation of the offense is too remote from the time when the affidavit is made or the search warrant issued, but generally speaking, a lapse of time of less than three weeks will be held not to invalidate the search warrant, while a lapse of more than four weeks will be held to do so. “(5) A mere error in the statement of time in the affidavit will not, as a rule, invalidate the search warrant.” See, also, Schoeneman v. United States, supra; United States v. Allen, 147 F.Supp. 955 (D.C.E.D. Ky. 1957); Dandrea v. United States, 7 F.2d 861 (8th Cir. 1925); Rupinski v. United States, 4 F.2d 17 (6th Cir. 1925); People v. Wright, 116 N.W.2d 786 (Mich. 1962); Hanelmann v. State, 113 So.2d 394 (Fla. 1959); I Varon, Searches, Seizures and Immunities 320-22 (1961 ed.); Cornelius, The Law of Search & Seizure, § 167 (1926 ed.); Annotation 162 A.L.R. 1406. During the hearing of the motion to suppress the evidence, the policeman who made the affidavit said that he had let so much time elapse “in order to make sure, I continued observing the place until I was absolutely sure.” He also explained that he was an undercover agent, and that if he made himself known he would be prevented from continuing further his investigating work. In order to determine probable cause, all the facts and circumstances justifying a conclusion of existence of — 33 — probable cause should be stated in the affidavit. The affiant said nothing on his observations subsequent to August 19. And it is well to point out that in- his testimony during the hearing of the motion to suppress the evidence, he did not mention any specific facts observed by him subsequent to that date. In his supplementary memorandum the Solicitor General raises the question that the delay was justified for the same reasons stated by this Court to justify the delay in filing the informations for a violation of the Bolita Act. The two situations are different. In People v. Seda, 82 P.R.R. 695, 701 (1961), we sanctioned the delay in filing an information for a violation of the Bolita Act notwithstanding the law expressly provided that it shall be done immediately. We did so in view of “the need to postpone the detention or arrest so as not to impair a major investigation on clandestine activities such as the sale of beverages, narcotics and game of bolita.” But in that case we were only concerned with a statutory provision requiring the immediate arrest of the person. The omission to do so did not violate his fundamental rights guaranteed by the Constitution. The present case involves a fundamental right guaranteed constitutionally. The search of a dwelling shall issue only upon probable cause that an offense is being committed therein. And we have already seen that the time elapsed between the observation of the fact and the application for the search warrant is fundamental in determining probable cause. We could not, under the guise of other considerations, adopt a rule which would violate such a fundamental right. The Solicitor General cites People v. Dolgin, 114 N.E.2d 389 (Ill. 1953), in which the court sustained as reasonable the 49-day period elapsed between the observation of the facts and the application for search. Aside from the fact — 34 — that apparently that is the only occasion in which a period exceeding 30 days has been considered reasonable, the circumstances surrounding the case are entirely different from most search cases. To begin with, we note that a dwelling was not involved in that case, and that the court had serious doubts as to whether a search warrant was needed. To that effect, it said at p. 394: “Moreover, it may be seriously questioned that a search warrant was needed to make the search and seizure valid.” The affiant swore that on several occasions between August 24 and October 8 he purchased from several retailers cigarettes bearing counterfeit internal-revenue stamps. Forty-nine days after the last purchase he swore the affidavit on which the warrant was issued to search the premises where the company manufacturer of the cigarettes was located. In upholding the validity of the warrant, the court said: “Here the magistrate had before him the evidence that the R & L Tobacco Co. had, over a considerable period of time in an extensive territory, made repeated sales and deliveries of cigarettes bearing counterfeit tax stamps. We believe that there was reasonable cause to believe that this offense was continuing, so that even after the lapse of the time indicated the issuance of the warrant should not be improper.” It may be observed that the facts are different, and it could be reasonably inferred that if cigarettes bearing counterfeit stamps were being sold for a protracted period, that situation would continue some time thereafter. Furthermore, there was the circumstance noted at the beginning that the court had serious doubts as to the need for a search warrant. Although for other reasons, the order of the court granting the motion for suppression of the evidence was correct. The writ issued will be quashed. Mr. Justice Rigau dissented. Footnotes [1] Those sections provide as follows: “Sec. 6. I have sworn that neither I nor anyone may enter forcefully the house of another. “See. 7. One who in an attempt to search another’s house kills the owner shall be guilty of perfidy or treason. “Sec. 8. If the owner or someone who helps to defend the house should kill any one of the aggressors, he or she shall not be guilty of homicide at all and he or she shall never be held liable for the damage done.” [2] The Fourth Amendment provides as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vio — 24 — lated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”