dissenting.
I respectfully dissent. While I agree with the majority that there was probable cause for issuance of the warrant, I disagree with the majority’s conclusion that Detective Mullins was not required to have the affidavit in his possession when he executed the warrant.
It is clear to me, and apparently to the majority also, that this is an impermissibly general search warrant. It directed Detective Mullins to search for “electronic computers, calculators, lamps, [vacuum] cleaner, phone recorders.” Nothing in the warrant identifies the items by brand name, serial number, color, size, or any other identifying detail. Hence, the warrant is invalid on its face because it does not particularly describe the things to be seized. People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979); People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).
I also agree with the majority that the affidavit contains sufficiently specific information to satisfy the particularity requirement of the Fourth Amendment. However, only when two requirements have been satisfied can a defective search warrant be cured by a specific affidavit. “First, the affidavit and the search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” Bloom v. State, 283 So.2d 134 (Fla.App.1973); United States v. Ortiz, 311 F.Supp. 880 (D.Colo.1970), aff’d, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971).
While it is true that, here, the warrant adequately refers to the affidavit, nevertheless, the failure to have the affidavit available, together with the warrant, for the edification of the homeowner is a fatal defect. “The requirement that the affidavit be attached to or inserted in the warrant is not mere formality. It makes the affidavit of probable cause immediately available to the person whose premises are entered, and explains to him at the outset the reason for this intrusion on his privacy. And it avoids any possible claim or suspicion by the citizen involved that the affidavit later located in the official file was inserted after the fact of the search.” Moore v. United States, 461 F.2d 1236 (D.C.Cir.1972). Although that court was interpreting a statute which requires the affidavit to be annexed to the warrant, compare D.C.Code § 23-301 with § 16-3-303(2), C.R.S.1973, the statute merely codifies the purpose of the Fourth Amendment, namely, the protection of the homeowner.
A homeowner who is presented with a warrant which is invalid on its face is not obliged to permit the police to enter and search, and the majority acknowledges that the homeowner must be given a copy of the warrant. Crim.P. 41(d)(5)(V). Nonetheless, the majority holds that there is no constitutional requirement that the homeowner receive a copy of the affidavit or that the affidavit be attached to the warrant. In my view, a general warrant, unaccompanied by the specific affidavit, is as constitutionally defective as a blank warrant. Far from elevating form over substance, the requirement of accompaniment guarantees the homeowner the protection of a complete, valid warrant.
According to the majority, the Supreme Court, in People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970), held that a warrant was not defective if the contents of the affidavit were not included in the warrant or a copy of the affidavit is not attached to the warrant. However, in Leahy, the warrant was not impermissibly general. It was a valid warrant which requires no attachment. Since the warrant in this case is insufficient on its face, the holding in Leahy is inappo-site. The majority’s reliance on People v. Del Alamo, Colo., 624 P.2d 1304 (1981), People v. Maes, 176 Colo. 430, 491 P.2d 59 (1971), and People v. Salazar, 39 Colo.App. 409, 568 P.2d 101 (1977) is misplaced. The issue of accompaniment was not addressed in those cases.
I cannot agree, as the majority suggests, that, “since the warrant was executed by Mullins, the one who had signed the affida*624vit and who knew what to look for, there was no occasion for concern that the officer would be misled by the description in the warrant.” Even an affiant cannot be expected to remember detailed descriptions of multiple items. But, even if it be assumed that the officer knows what to look for, how does the homeowner find out what the officer is looking for? In my view, when the constitutionality of a search depends on a valid warrant, and the warrant is valid only when supported by a sufficiently specific affidavit, the affidavit must accompany the warrant when the officer appears at the homeowner’s threshold. See State v. Woratzeck, 130 Ariz. 499, 637 P.2d 301 (Ariz.App.1981).
The record of the hearing on defendant’s motion to suppress does not disclose wheth-
er Detective Mullins had both the warrant and the affidavit in his possession for the homeowner’s inspection when he searched the Papez home, and the trial court made no findings on the issue. It cannot be presumed that both documents were in his possession. This is not a matter for judicial notice. Since it was necessary that the People prove that Detective Mullins had both documents in his possession at the time of the search, the trial court erred in denying the defendant’s motion to suppress.