People v. Quintana
Citation | 183 Colo. 81,514 P.2d 1325 |
Decision Date | 09 October 1973 |
Docket Number | No. 26025,26025 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gilbert R. QUINTANA and Carol S. Quintana, Defendants-Appellees. |
Court | Supreme Court of Colorado |
Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy, Denver, for plaintiff-appellant.
Eugene Deikman, Harry K. Nier, Jr., Denver, for defendants-appellees.
Rollie R. Rogers, Colo. State Public Defender, Denver, J. D. MacFarlane, Chief Deputy State Public Defender, Harold A. Haddon, Chief Trial Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, appearing as amicus curiae.
Jon L. Holm, Peter D. Willis, Denver, for amicus curiae Denver Police Union Local No. 109.
Roger H. Allott, James M. DeRose, Denver, for amicus curiae, Colo. Dist. Attys. Ass'n.
This is an interlocutory appeal by the District Attorney pursuant to C.A.R. 4.1 (amended on April 1, 1971), from a ruling of the district court granting the defendants' motion to suppress evidence on the ground that certain conditions had not been met. We reverse the ruling.
A search warrant was predicated upon the following affidavit:
The People claim that narcotic drugs were seized in the search under the warrant. The court held an evidentiary hearing upon the defendants' motion to suppress this evidence. At the conclusion of the hearing the court ordered that Detective Cantwell disclose to the court, In camera and outside the presence of counsel and the parties, the name of the informer and his present location, if known, and the facts and circumstances surrounding the prior tips received from the informer; that a record of this In comera proceeding be made, sealed and preserved for the purpose of any appellate review of the proceeding and that the contents of the hearing should not be revealed without the consent of the prosecution; but that the 'prosecution may, if it so chooses, withhold the identity of the informer, but upon the prosecution's election to withhold the identity of the informer, the Defendant's motion to suppress shall be granted.'
The prosecution elected to withhold the identity of the informer and the court thus granted the motion to suppress.
On July 16, 1973, we announced an opinion in this matter in which we approved the ruling of the district court. Thereafter, we granted a petition for rehearing, received further briefs and heard oral argument. We now withdraw the first opinion and reverse the district court's ruling.
The defendant submits that the affidavit was factually insufficient. In recent years there have been a number of opinions of this court dealing with the sufficiency of affidavits supporting search warrants, and many of these opinions have contained rather thorough review of the authorities. It would seem that, commencing with this opinion, some of our further opinions need not repeat the citations and statements concerning the prongs of probable cause and reliability. Under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and People v. Ward, Colo., 508 P.2d 1257 (1973), we regard the affidavit here as barely sufficient.
The defendant contends that the affidavit was insufficient because it was predicated upon double hearsay. We have ruled otherwise when, as here, the information is conveyed by one police officer to another police officer. People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970).
The People contend that the trial court erred in requiring disclosure of the informant's identity and in ordering the prosecution to choose between disclosure and suppression of evidence. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972), has been cited to us. There it was stated:
The District Attorney has, of course, cited this case for the first part of the quoted material. The district judge, in making his preliminary ruling seeking the identity of the informant, was relying, at least in part, upon the last quoted sentence.
Where there is presented to the trial court evidence of lack of credibility of the affiant or of his officer-informant or where the judge has knowledge of matters which would cause him to doubt such credibility, the court may in its discretion order a condition of disclosure as was done here.
DeLaCruz involved a search incident to an arrest. We believe that generally the same rules should be applied to a trial judge with respect to a search under warrant. As indicated, a limitation must be placed upon the last sentence of the quotation. Where, as here, no evidence of lack of credibility of the affiant or of his officer-informant has been presented or where the judge has not shown that he had knowledge of matters which would cause him to doubt such credibility, the trial court may not require identification--and much less the production--of the confidential informant. As to this limitation we call attention to the fact that we are not here dealing with an order of the magistrate who issued the warrant.
Defendant calls our attention to the testimony of the affiant, Officer Leuthauser, at the hearing. He testified that Detective Cantwell (who relayed to the affiant the information obtained from the informant) spoke with him for only five to ten minutes regarding the alleged criminal activity. Defendant contends that the shortness of the communication time affects credibility. It has not been demonstrated that Detective Cantwell could not have communicated such information to the affiant within this time span.
The ruling of the district court is reversed and the cause remanded with directions to proceed consonant with the views expressed in this opinion.
ERICKSON Justice (dissenting).
I would affirm the trial court's order which suppressed the evidence.
In my opinion, the affidavit which provides the foundation for the search warrant does not meet the two-pronged test set forth by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and later in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit fails to satisfy the second prong of the Aguilar test. Nothing appears in the affidavit which would permit the judge who issued the warrant to make an independent judgment as to the informant's credibility or the reliability of his information. The affidavit merely recites that the confidential informant is credible and that his information has on past occasions proven to be reliable. In construing Aguilar and Spinelli, we have held in a series of cases that more is required to sustain the validity of a search warrant. People v. Ward, Colo., 508 P.2d 1257 (1973); Peschong v. People, Colo., 506 P.2d 1232 (1973); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).
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...indicates that fellow officers provided the information to Agent Keller. People v. Henry, 631 P.2d 1122 (Colo.1981); People v. Quintana, 183 Colo. 81, 514 P.2d 1325 (1973). A different problem is presented by the last sentence of paragraph 7. That information was obtained directly as a resu......
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