People v. Ball, s. 81SA456

• Decision Date: 01 February 1982
• Docket Number: Nos. 81SA456,81SA457,s. 81SA456
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Raymond BALL, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gerianne BALL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1078

639 P.2d 1078

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Raymond BALL, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gerianne BALL, Defendant-Appellee.

Nos. 81SA456, 81SA457.

Supreme Court of Colorado, En Banc.

Feb. 1, 1982.

Terrance Farina, Dist. Atty., James R. Alvillar, Chief Deputy Dist. Atty., Grand Junction, for plaintiff-appellant.

Haddon, Morgan & Foreman, P. C., Lee D. Foreman, Denver, for defendant-appellee.

QUINN, Justice.

In this consolidated interlocutory appeal ¹ the People, pursuant to C.A.R. 4.1, challenge the district court's suppression of various items of evidence consisting of marijuana, cocaine, money and drug paraphernalia seized in the course of a search pursuant to warrant. The court ruled that the affidavit filed in support of the search warrant did not establish probable cause for the search. We reverse the suppression ruling.

I.

By separate information the defendants, Raymond and Gerianne Ball, husband and wife, are accused of two drug offenses allegedly committed on May 2, 1981, in Mesa County, Colorado. One count charges the defendants with possession of a narcotic drug, cocaine, sections 12-22-302 and 322, C.R.S.1973 (1980 Supp.), and the other count alleges possession of a dangerous drug, cannabis, with intent to dispense, section 12-22-412(3), C.R.S.1973 (1980 Supp.). The charges stem directly from evidence seized in the course of a search pursuant to warrant of the defendants' residence at 616 283/4 Road in Grand Junction, Colorado, on May 2, 1981.

On April 30, 1981, Mesa County Deputy Sheriff Harry Oxford filed an affidavit with the Mesa County Court requesting the issuance of the warrant. The affidavit recited that Oxford had been assigned to drug enforcement for 31/2 years and had considerable experience in that line of work. It further stated that on or about March 27, 1981, Lois Arbogast, who resided at 614 283/4 Road in Grand Junction, contacted the Sheriff's Office to report an unusually large volume of traffic at the defendant's residence with resulting visits of short duration by various persons. Paragraphs 4 through 6 of the affidavit recited that Officer Oxford, Officer Don Hampton and Lois Arbogast conducted a surveillance of the defendants' residence between April 1 and April 25, 1981, during which period the following observations were made:

"4. (M)ore than 196 individual visits by 90 individual vehicles were made to the residence at 616 283/4 Road, Grand Junction, Colorado. During this time period, Mrs. Arbogast and myself observed numerous subjects walking to the door of the aforesaid residence ... from their vehicles pulling out their wallets. Also, on several occasions, subjects were seen returning to their vehicles and sharing or giving other occupants objects or parcels too small to be seen at night with only the door lights on.

"5. While on surveillance on April 21, 1981, I observed a vehicle, namely a 1978 Ford Pickup with Colorado Truck License Number NL1677, parked in front of the aforesaid residence ... and a subject enter the residence and later return to the truck, while leaving the dome light on in the truck, and the subject brought a small device to his nose-based on my experience in the drug and narcotic field, and also based on the fact that he performed some actions on the truck seat before bringing the device to the nostrils of his nose, I believe he was sampling by spoon a quantity of cocaine by inhalation.

"6. On April 23, 1981, I observed a vehicle which according to the Motor Vehicle Registration Records was registered to Jerry Jompp pull up into the yard of the aforesaid residence at 616 283/4 Road and stop. The three individuals in the vehicle exited into the yard and when leaving all three passed around a cigarette, taking long inhalations thereof in a manner consistent to be with the smoking of marijuana." ²

On August 6, 1981, the court conducted a hearing on the defendants' motions to suppress. The defendants elicited testimony from Deputy Sheriff Oxford that in conducting the surveillance of the defendants' residence he directed Lois Arbogast to keep a notebook of all vehicular traffic at the residence and to make a written notation of the date and time of the observations, the description and license numbers of the vehicles, and the number and description of the occupants. Oxford also testified as follows:

"Q In fact, is that the notebook that was given to you by Mrs. Arbogast containing the information that she put down at your request?

"A This belongs to her. She used it; her husband used it; myself-I believe I have a few notations in there.

"Q It is your understanding that she wrote down some of that and her husband wrote down some of that; you yourself wrote down some of that?

"A We had a number of conversations and worked it out on what the information was that we needed.

"Q All of that information ultimately was incorporated when you collated and came up with some of the material you put into the affidavit?

"A Yes, sir."

The court suppressed the evidence and ordered $12,000 in United States currency, which had been seized during the search, returned to the defendant, Raymond Ball. ³ Drawing principally from the standards of probable cause set forth in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the court based its suppression ruling on the following factors: (1) the affidavit failed to provide sufficient information to permit the issuing judge to determine the reliability of much of the information contained therein; (2) "the sources of the information in the affidavit were not entirely identified," particularly with respect to the notebook entries made during the period of surveillance; (3) the times at which various observations were made during the period of surveillance were not precisely specified and, therefore, much of information was stale; (4) the affidavit "coupled speculation with the association of drug users as a substitute for facts and knowledge of wrong doing or the existence of evidence or contraband at the premises." We conclude that the court's suppression ruling is based upon a hypertechnical application of the standard of probable cause to the averments in the affidavit.

II.

"Probable cause" involves a level of knowledge grounded in the practical considerations of everyday life on which reasonable and prudent persons act. E.g. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.2d 1879 (1949); Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965). Probability, not certainty, is the touchstone of probable cause. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). In a search pursuant to warrant the constitutional standard of probable cause requires that the affidavit allege sufficient facts to warrant a person of reasonable caution in the belief that contraband or material evidence of criminal activity is located on the premises to be searched. E.g., United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Where probable cause is predicated on information from an undisclosed informer, the affidavit must allege sufficient facts from which the issuing judge may independently determine (1) the validity of the informer's belief that seizable objects are on the premises to be searched and (2) the credibility of the informer or the reliability of his information. E.g., Spinelli v. United States, supra; Aguilar v. Texas, supra; People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973). Information from an undisclosed informer, in addition to being hearsay, is colored with a certain aura of unreliability and courts require a special showing for probable cause in order to protect the warrant process from abuse. However, where the information utilized in support of a search warrant consists of the first hand observations of an identified citizen or a law enforcement officer, both the credibility of the source and the reliability of the information may be presumed and, therefore, need not be independently established in the affidavit. See, e.g., United States v. Ventresca, supra; People v. Henry, Colo., 631 P.2d 1122 (1981); People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971).

In determining the issue of probable cause, a court must interpret the affidavit "in a common sense and realistic fashion" and should not require "technical requirements of elaborate specificity." United States v. Ventresca, supra, 380 U.S. at 108-09, 85 S.Ct. at 746, 13 L.Ed.2d at 689; accord, People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979); People v. Whisenhunt, 173 Colo. 109, 476 P.2d 997 (1970). Thus, while an affidavit must contain a sufficient statement of the time of the events relied upon to establish probable cause, it is not necessary that the timing of these events be delineated with exactitude or that the events themselves occur immediately prior to the issuance of the warrant. The test is whether the timing of the events is sufficiently set forth to justify a reasonable belief that seizable objects are present on the premises to be searched. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970); People v. Montoya, Colo.App., 616 P.2d 156 (1980); People v. Erthal, 38 Colo.App. 245, 556 P.2d 1228 (1976), aff'd 194 Colo. 147, 570 P.2d 534 (1977); see generally Annot., 100 A.L.R. 525 (1965). Also, due consideration should be given to a law enforcement officer's experience and training in determining the significance of his observations in the context of probable cause. See, e.g., United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975).

III.

When read "in a common sense and realistic fashion," it is apparent that Deputy Sheriff Oxford's...