concurring:
I concur in the result reached by the court. Because I believe the case can be resolved on the basis of harmless error, I join in section IV of Justice Quinn’s concurring opinion.
In light of the People’s concession that the affidavit of Detective Foster was constitutionally defective, the only search and seizure question addressed by the trial court was the applicability of the Colorado good-faith statute, section 16-3-308, 8 C.R.S. (1984 Supp.), to the ease. At no time did the trial court consider the wide array of theories and issues upon which the members of the court write today. If it is necessary to address the question of whether the tennis shoes and one bandana were properly seized in compliance with constitutional requirements, then consideration of that issue should be limited to the context of the good-faith statute. The number and diversity of separate opinions provide ample evidence as to why we should heed our statements in People v. Enea, 665 P.2d 1026, 1028 (Colo.1983), where we noted:
When we follow our traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudications.
(Quoting New York v. Ferber, 458 U.S. 747, 780-81, 102 S.Ct. 3348, 3367-68, 73 L.Ed.2d 1113 (1982) (Stevens, J., concurring).) The various opinions in this case add only confusion and heat, rather than clarity and light, to the field of search and seizure law. Law enforcement officials, the bench, and the bar will receive precious little guidance from the court’s resolution of this appeal. However, in view of the breadth of the concurring opinions, I write separately to express my concern with the court’s readiness to resort to gyrating federal search and seizure doctrines to define the constitutional rights at issue, rather than to independently interpret the protection against unreasonable searches and seizures embodied in article II, section 7 of the Colorado Constitution.
The highest court in the state has the ultimate duty to define the rights and privileges guaranteed to its citizens by the state constitution. Although the federal and state constitutions may be similarly or even identically phrased, state courts are free to consider the merits of a constitutional challenge under their own constitutional provisions, and are free to do so independently of United States Supreme Court opinions. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). See Lujan v. Colorado State Board of Education, 649 P.2d 1005, 1016 (Colo.1982); People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968).
Under the basic doctrines of federalism, a state constitution provides an independent and adequate ground for resolution of constitutional issues. See Colorado v. Nunez, — U.S. -, 104 S.Ct. 1257, 79 *1171L.Ed.2d 338 (1984) (certiorari dismissed as improvidently granted because the judgment of the Colorado Supreme Court rested on independent and adequate state grounds). However, a state court which declines to specify what rights its constitution confers upon the citizens of its state hut instead strains to rest its judgment on federal constitutional grounds abrogates its duty, disparages whatever protections the state constitution does confer, and makes an ill-advised entry into the federal domain. Massachusetts v. Upton, — U.S. -, 104 S.Ct. 2085, 2090-91, 80 L.Ed.2d 721 (1984) (Stevens, J., concurring).
Moreover, “[t]o submerge the analysis of a state constitution in doctrines derived from the work of the United States Supreme Court serves neither the law nor theory itself.” Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L.Rev. 165, 194 (1984).
The crucial step for ... state courts ... is to recognize that the Supreme Court’s answer is not presumptively the right answer, to be followed unless the state court explains why not.
The right question is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand.
Id. at 179; see also Upton, — U.S. -, 104 S.Ct. 2085, 2091, 80 L.Ed.2d 721 (Stevens, J., concurring).1
As a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which extended to state courts the rule that evidence illegally obtained was inadmissible in a criminal prosecution, and “to implement the constitutional guarantees against unlawful searches and seizures,” this court adopted Crim.P. 41 providing for suppression of evidence illegally obtained. Hernandez v. People, 153 Colo. 316, 319, 385 P.2d 996, 998 (1963). In Hernandez, we stated: “In our view, Mapp, supra, does not by its terms nationalize the law of search and seizure, ... but it does compel state courts to examine and resolve the problems arising from the search for and the seizure of evidence in the light of state and federal constitutional guarantees against unlawful searches and seizures.” Id. at 319, 385 P.2d at 998 (emphasis added).
*1172Accordingly, this court has held that article II, section 7 of the Colorado Constitution provides greater protection to Colorado citizens than does the fourth amendment. Compare People v. Corr, 682 P.2d 20 (Colo.), cert. denied, — U.S. -, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984), and People v. Sporleder, 666 P.2d 135 (Colo.1983), with Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980), with United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and People v. Nunez, 658 P.2d 879 (Colo.), cert. granted, — U.S. -, 104 S.Ct. 65, 78 L.Ed.2d 80 (1983), cert. dismissed, — U.S. -, 104 S.Ct. 1257, 79 L.Ed.2d 338 (1984), with Colorado v. Nunez, — U.S. -, 104 S.Ct. 1257, 79 L.Ed.2d 338 (1984) (White, J., concurring).2 Nevertheless, the concurring opinions generally ignore this independent analysis and, instead, are guided by the broad holdings of recent Supreme Court decisions.
Article II, section 7 requires that no search warrant shall issue except on a showing of probable cause which has been “reduced to writing.” This textual variation from the fourth amendment indicates “beyond a doubt that sufficient facts to support a magistrate’s determination of probable cause must appear on the face of the written affidavit.” People v. Baird, 172 Colo. 112, 116, 470 P.2d 20, 22 (1970).3
The People concede that the affidavit of Detective Poster is constitutionally deficient. Simply stated, the affidavit clearly fails to allege sufficient facts for a person of reasonable caution to believe that the items to be seized were located in the premises to be searched. People v. Conwell, 649 P.2d 1099 (Colo.1982). The defect in the affidavit was “cured” by oral statements given at the suppression hearing. Article II, section 7 of the Colorado Constitution and our casé law forbid the use of such information to bolster a defective affidavit. People v. Dailey, 639 P.2d 1068 (Colo.1982); People v. Jackson, 189 Colo. 316, 543 P.2d 705 (1975); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).
Having determined that there was a constitutional violation, the applicability of the good-faith statute must be examined on the assumption that the statute is constitutional.4 I agree with Justice Dubofsky and Justice Quinn that the statute does not apply to the facts of this case. Regardless of what the legislature might have intended, the plain language of the statute, including the use of the phrase “reasonable judgmental error concerning the existence of facts” renders the good-faith exception to the exclusionary rule more narrow than the exception established by the Supreme *1173Court in Massachusetts v. Sheppard, U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), and United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Moreover, recognizing a good-faith exception to the exclusionary rule on the ground that Detective Foster knew of the defendant’s connection with the place to be searched, but merely neglected to include it in the written affidavit, is contrary to the direct mandate of article II, section 7 of the Colorado Constitution that probable cause be established by an oath or affirmation reduced to writing. By ignoring the uniqueness and independence of our own constitutional provisions, I fear this court may become merely a passenger on a vessel captained by the federal judiciary.
For the reasons I have stated, I believe the tennis shoes and red bandana seized from the defendant’s residence should have been suppressed by the trial court. However, because I view the admission of those items into evidence as harmless error beyond a reasonable doubt, I would affirm the judgment of the trial court.
. Members of the Supreme Court have drawn the state courts’ attention to their independent responsibility to determine their states’ constitutional law. Justice O’Connor recently stated:
There is a fine line, of course, between a state court holding that an action independently violates both the State and Federal Constitutions, and holding that the State Constitution is violated because the Federal Constitution is violated. Recently, there has been a tendency for the Supreme Court to find no independent state ground and to assert its power to review if it appears that both federal and state constitutional provisions are cited by the state court, that the state cases generally follow the federal interpretation, and the state court does not clearly and expressly articulate its separate reliance on independent state grounds. See South Dakota v. Neville, 459 U.S. 553 [103 S.Ct. 916, 74 L.Ed.2d 748] (1983); Delaware v. Prouse, 440 U.S. 648 [99 S.Ct. 1391, 59 L.Ed.2d 660] (1979).
The point of this discussion is to emphasize that, as state court judges, you have a very real power to decide cases, whether they are civil or criminal, on state grounds alone, if they exist, or to indicate clearly and expressly that the decision is alternatively based on separate and independent state grounds....
State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1323 n. 10 (1983) (quoting speech by Hon. Sandra D. O’Connor, Associate Justice, U.S. Supreme Court, at The National Judicial College, Reno, Nevada (May 13, 1983) (emphasis in original)).
Chief Justice Burger has also stated: "State courts ... are responsible for first resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law.” Kennedy, 295 Or. 260, 666 P.2d 1316, 1323 n. 10 (quoting Year-End Report on the Judiciary, 23 (1981)).
See also McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (Justices Stevens, Blackmun, and Powell withheld votes sufficient to have granted a petition for writ of certiorari concerning defense objections to prosecution use of peremptory challenges which had the effect of excluding jurors by reason of their race. The three Justices noted that some state courts had addressed the issue and that the state experience would assist the Supreme Court in formulating its own views.).
. Implicit in these decisions is the recognition that evidence seized in violation of the constitutional requirements imposed by article II, section 7 must be suppressed. I would save for another day any discussion of the purpose of the exclusionary rule, e.g., to deter police misconduct, to deter judges from issuing invalid warrants, or to prevent the government from profiting from the violation of the defendant’s constitutional rights by the government. See White, Forgotten Points in the "Exclusionary Rule"Debate, 81 Mich.L.Rev. 1273 (1983). Resolution of this issue will require the court to decide whether the exclusionary rule is a judicially created remedy subject to being modified by legislation or the courts, or whether the exclusionary rule is part and parcel of the constitutional proscription against unreasonable searches and seizures under article II, section 7 of the Colorado Constitution.
. The fourth amendment contains no requirement that the affidavit be reduced to writing. However, in Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306 (1971), the Court stated:
Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U.S. 108, 109 n. 1 [84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964)]. A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.
. Because section 16-3-308, 8 C.R.S. (1984 Supp.), is not applicable to this case, I decline to express any view on whether the provision violates article II, section 7 of the Colorado Constitution.