(dissenting).
I dissent.
A. The search warrant should be quashed because the items seized were not described in the warrant.
The search warrant provides for the search for and seizure of “any and all controlled substances which may be kept there [headquarters of the El Vicio Methadone Maintenance Program Organization] contrary to law.”
This description violates the Fourth Amendment to the Constitution of the United States and Article II, Section 10 of the New Mexico Constitution. This is a matter of first impression in New Mexico.
The Fourth Amendment reads in pertinent part:
. . . [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . things to be seized. [Emphasis added]
The New Mexico constitutional provision reads in pertinent part:
[N]o warrant to search any place, or seize any . . . thing, shall issue without describing the things to be seized . . . . [Emphasis added]
(1) The history of these provisions seek the protection of the guilty as well as the innocent.
Our forefathers adopted the Fourth Amendment to avoid serious threats to basic liberties of our people and serious threats against precious aspects of our traditional freedom. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) sets forth the broad historic policy underlying the Fourth Amendment. This policy, as explained in Boyd, has been the guide to its interpretation. The Fourth Amendment was adopted to strangle writs of assistance issued in colonial days which empowered revenue officers to search suspected places for smuggled goods. A writ of assistance was called, by James Otis, the “worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book”. 116 U.S. at 625, 6 S.Ct. at 529, 29 L.Ed. at 749.
“The whole point about the Fourth Amendment is that ‘Its protection extends to offenders as well as to the law abiding,’ because of its important bearing in maintaining a free society and avoiding the dangers of a police state.” Harris v. United States, 331 U.S. 145, 171, 67 S.Ct. 1098, 1111, 91 L.Ed. 1399, 1416-17 (1947), (Frankfurter, J., dissenting). “Of course, this, like each of our constitutional guaranties, often may afford a shelter for criminals. But the forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught.” 331 U.S. at 198, 67 S.Ct. at 1120, 91 L.Ed. at 1432, (Jackson, J., dissenting). See, also, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).
We should not be indulgent towards inroads upon the Fourth Amendment. In the words of Mr. Justice Holmes, speaking for the Court, the precious constitutional rights “against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 322 (1920).
We must not reduce the Fourth Amendment merely to words, which can be circumvented with little effort, thus negating the protection it extends to the privacy of individual life.
(2) The words "controlled substances’’ in the search warrant were not sufficient to identify the items to be seized.
“The requirement of the constitutional provisions that search warrants shall particularly describe the thing to be seized necessitates a description of the property to be seized with such certainty as to identify it. . . .”4 Wharton’s Criminal Law and Procedure, § 1555 (Anderson ed., 1957), at 180'.
We are confronted with the “Controlled Substances Act”, § 54-11-1 et seq., N.M.S.A. 1953 (Repl. Vol. 8, pt. 2, 1973 Supp.) which contains five schedules of controlled substances. Sections 54-11-29 and 54-11-30 provide for the issuance and execution of “administrative inspection warrants”. We do not determine the applicability of these sections to the present case; how-, ever, these sections can be looked to for guidance as to the appropriateness of a description of items included in the schedules of controlled substances, which are to be seized pursuant to a search warrant.
The purpose of §§ 54-11-29 and 54-11-30 is to broaden the power of government officials to enforce the provisions of the Controlled Substances Act. The legislature gave due concern to the necessity of describing, in the search warrant, the property intended to be seized. Because the Act contains five different schedules of drugs, § 54 — 11-30 (B) (4) provides that the warrant shall “identify the items or types of property to be seized, if any”.
The search warrant in the instant case did not “identify the items or types of property to be seized”, nor did it make any reference to the Controlled Substances Act. It merely provided for seizure of “any and all controlled substances”.
We have held that a search warrant is valid on its face, if it appears valid to an ordinarily intelligent and informed layman. Torres v. Glasgow, 80 N.M. 412, 456 P.2d 886 (Ct.App.1969). An intelligent and informed layman would not understand the meaning of “controlled substances” unless he were shown the Controlled Substances Act and he read and understood it. Even so, he would not know which items listed in the five schedules of controlled substances were the object of the search in the instant case.
A layman would know what “narcotics and dangerous drugs” are. These words have been held to be a description that is sufficient to identify the property to be seized. Weber v. Superior Court for County of Santa Clara, 30 Cal.App.3d 810, 106 Cal.Rptr. 593 (Ct.App. 1st Dist., 1973); People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971); People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970); State v. Dimmer, 7 Wash.App. 31, 497 P.2d 613 (1972). It is not necessary to give a detailed description such as chemical composition because that is too technical. United States v. Ketterman, 276 A.2d 243 (D.C.App. 1971).
The object of the Fourth Amendment provision which requires a description of the “things to be seized” is to prevent overbroad generalized searches and seizures. Bell v. State, 482 P.2d 854 (Alaska, 1971). General searches are invalid in New Mexico. State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969).
I have uncovered no authority which has discussed the words “controlled substances” as used in a search warrant to identify the property to be seized. For cases which have held search warrants void because of overbroad language, see, Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); People ex rel. McKevitt v. Harvey, 176 Colo. 447, 491 P.2d 563 (1971); State v. Johnson, 160 Conn. 28, 273 A.2d 702 (1970); Commonwealth v. Dorius, 346 Mass. 323, 191 N.E.2d 781 (1963); People v. Masters, 33 A.D.2d 637, 305 N.Y.S.2d 132 (A.D. 4th Dept. 1969).
The cases relied upon in the majority opinion are distinguishable from the instant case. United States v. Fuller, 441 F. 2d 755 (4th Cir. 1971) held that a warrant that authorizes the seizure of items directly related to a bookmaking operation is not a general search warrant that is prohibited by the Fourth Amendment. James v. United States, 416 F.2d 467, 473 (5th Cir. 1969) held that, “When circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.”
We are not faced with analogous problems in the instant case; and even if we were, the generic class of items to be seized would be “narcotics and dangerous drugs”, not “controlled substances”.
The search warrant is unlawful, because it authorized a general search, in violation of the Fourth Amendment to the United States Constitution; Article II, Section 10 of the New Mexico Constitution; and case law in New Mexico {Paul, supra).
(3) The item named in the affidavit as the object of the search is not named in the search warrant.
The affidavit of the police for a search warrant identifies heroin as the item covered by the Controlled Substances Act. Heroin is not mentioned in the search warrant. 1 Varón, Searches, Seizures and Immunities (1961), at 333, states:
The law is clear that the person or place to be searched, as well as the property to be seized, must be particularly and sufficiently described in the search warrant. It is imperative to the validity of a search warrant that such descriptive requirement be obeyed.
i(c ‡ ^
It must be remembered that the affidavit made and filed before the judicial authority contains a certain description, and a search warrant is predicated thereon, and adopts the description set forth in the affidavit, with the same degree of particularity and certainty of the averments made under oath.
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Thus, only those items which are mentioned in the affidavit, and adopted in the search warrant may be seized.
(4) The search warrant placed discretion in police officers.
We have adopted the rule that officers executing the warrant are not granted any discretion in selecting items to be seized. State v. Paul, supra.
El Vicio Methadone Treatment Center has legal authority to have Methadone on its premises. Methadone is a controlled substance. Section 54-11-7(B) (11). The warrant authorized a search “for any and all controlled substances which may be kept there contrary to law.” Under the five schedules set forth in the Controlled Substances Act, there are about 120 different drugs set forth. The search warrant gave the officers unlawful authority to use their discretion in deciding what substances were kept there contrary to law.
B. There is no evidence that defendant “trafficked” in a controlled substance.
Defendant was charged with a violation of § 54-11-20. Á which reads:
As used in the Controlled Substances Act . . . “traffic” means the:
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(3) possession with intent to distribute any controlled substance enumerated in Schedules I or II which is a narcotic drug.
The evidence most favorable to the state shows that defendant was in possession of 30 caps of heroin, guesstimated to be between four and five grams, or about 0.155 ounces. Does this establish “intent to distribute” ? There is no evidence in the record to establish or suggest that this amount of heroin is a typical amount for distribution by a seller. There is no evidence to establish how much heroin an addict might use each day, or might typically be carrying around with him. There is no evidence of attempted distribution by defendant to another, or of intent to distribute.
Defendant testified that he never sold heroin or other drugs. No conflicting evidence was presented.
In State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974), we held that possession of 246.15 pounds of marijuana, together with defendants’ activities, permitted an inference that defendants had the necessary intent to distribute and sustained a conviction for possession of marijuana with intent to distribute.
The only evidence relied on by the State in the instant case to infer an intent to distribute is defendant’s statement that he was not an addict or user of heroin. This is flimsy evidence upon which to rest the conviction, given the standards we have established in Bowers, supra; State v. Moreno, 69 N.M. 113, 364 P.2d 594 (1961); State v. Easterwood, 68 N.M. 464, 362 P.2d 997 (1961). Only by the broadest speculation and conjecture could the jury conclude that there was intent to distribute. State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960).
We have continually held that when circumstantial evidence is relied on to prove essential elements of the crime, such evidence must point unerringly to the defendant’s guilt, and must be incapable of explanation by any reasonable hypothesis of the defendant’s innocence. State v. Malouff, 81 N.M. 619, 471 P.2d 189 (Ct.App.1970); State v. Zarafonetis, 81 N.M. 674, 472 P.2d 388 (Ct.App.1970); State v. Flores, 76 N. M. 134, 412 P.2d 560 (1966).
“ . . . [T]he circumstantial evidence rule is not a concept independent of the question of whether there is substantial evidence to support the verdict.” State v. Madrid, 83 N.M. 603, 605, 495 P.2d 383, 385 (Ct.App.1972); State v. Duran, 86 N. M. 594, 526 P.2d 188 (Ct.App.1974). The circumstantial evidence set forth above is not substantial evidence that defendant trafficked in controlled substances.
Although defendant may be guilty of possession of heroin, there is no evidence to sustain the conviction for possession with intent to distribute heroin.