People v. Brethauer

• Decision Date: 08 March 1971
• Docket Number: No. 24850,24850
• Citation: 174 Colo. 29,482 P.2d 369
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy Allen BRETHAUER, Ronald Vester Shuler and Kenneth Harvey Rice, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 369

482 P.2d 369

174 Colo. 29

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy Allen BRETHAUER, Ronald Vester Shuler and Kenneth

Harvey Rice, Defendants-Appellants.

No. 24850.

Supreme Court of Colorado, En Banc.

March 8, 1971.

Duke W. Dunbar, Atty. Gen., Denver, James H. Shelton, Dist. Atty., William L. West, Deputy Dist. Atty., Greeley, for plaintiff-appellee.

Williams, Trine & Greenstein, William D. Neighbors, Boulder, for defendants-appellants Ronald Vester Shuler and Kenneth Harvey Rice.

William E. Shade, Greeley, for defendant-appellant Timothy Allen brethauer.

ERICKSON, Justice.

This is an interlocutory appeal from a trial court's ruling which denied a motion to suppress as evidence certain narcotics and other related articles in police possession as the result of a search and seizure based upon a search warrant.

Timothy Allen Brethauer, Ronald Vester Shuler, and Kenneth Harvey Rice are the defendants in the trial court and are the appellants here. They were charged with possession of marijuana, possession of dangerous drugs, possession of marijuana for sale, and with dispensing of dangerous drugs.

Probable cause is the touchstone in this area of the law, and it is only upon a showing of probable cause that the legal doors are opened to allow the police to gain official entry into an individual's domain of privacy for the purpose of conducting a search or to make an official seizure under the Constitution. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Accord, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), concurring opinion; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), concurring opinion; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); and Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).

In Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965), we adopted the following definition of probable cause and provided guidelines to ascertain the existence of probable cause:

'* * * Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Ker v. California, supra (374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. In dealing with probable cause, on deals with probabilities. 'These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' * * *'

Obviously, the existence of probable cause must be determined by a member of the judiciary, rather than by a law enforcement officer who is employed to apprehend criminals and to bring before the courts for trial those who would violate the law. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The role of the police officer in search warrant practice is limited solely to providing the judge with facts and trustworthy information upon which he, as a neutral and detached judicial officer, may make a proper determination. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Johnson v. United States, Supra.

The defendants in this case contend that the affidavit which supported the issuance of the search warrant did not meet constitutional standards. If the search warrant is to be sustained, this Court must find that the affidavit complied with the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, Annot. 10 A.L.R.3d 359 (1966), and in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The affidavit upon which the search warrant was issued in the instant case set forth the following facts and circumstances:

'Thomas A. Connell, being first duly sworn upon his oath says: that he has reason to believe that on the premises known as 1532 9th Ave., Greeley, Colorado and a red and black Comet Automobile and a green chevrolet panel truck parked at or near the premises there is located certain property, to-wit: L.S.D., S.T.P., marijuana and other narcotics and dangerous drugs and instruments for use in connection with narcotics and dangerous drugs, which property is designed or intended for use in committing a criminal offense, the possession of which is illegal and would be material evidence in a subsequent criminal prosecution.

'The facts upon which this affidavit is based are as follows:

'That an informer, known to the affiant to be reliable, based on past information supplied by the informer which has proved to be accurate has told the affiant that approximately 50 capsuls (sic) containing L.S.D. and at least two ounces of marijuana are at these premises. The informer has on two occasions (sic) purchased L.S.D. and S.T.P. within the past five days. These capsuls (sic) were delivered to the Weld County Sheriff's Office and were tested and did contain L.S.D. and S.T.P. At the time of purchase the informer saw other capsuls (sic) containing L.S.D. and S.T.P. and the party making the sale said he had two ounces of marijuana. The party also said he was going to obtain 100 additional capsuls (sic) of L.S.D. and two kilograms of marijuana and offered to sell to the informer one kilogram of marijuana. The informer is to make the purchase today. The informer also saw instruments for use in smoking marijuana on the premises.'

The affidavit is fatally defective, and the trial court should have granted the defendant's motion to suppress for the following reasons:

1. The reliability of the informer is not established, and no basis is set forth to establish the source of this information.

2. The affidavit refers to three locations; namely, two automobiles and a house, and nothing in the affidavit indicates how the informer concluded that narcotics were present in the house or that there was a connection between the defendants and the automobiles or the house.

3. The affidavit does not set forth whether the information obtained by the informer was from another person or through the informer's own observations.

4. There is no statement in the affidavit as to whether the alleged purchases took place on the premises or involved persons who were in any way related to or associated with the subject premises.

5. Nothing appears in the affidavit to establish whether the capsules and marijuana were observed by the informer or by someone else.

6. Nothing appears in the affidavit to establish where the 'instruments 'were observed.

In Aguilar v. Texas, Supra, a search warrant was issued upon an affidavit of police officers who swore only that they had received reliable information from a credible person and believed that narcotics were being illegally stored on the described premises. The Supreme Court, in striking down the affidavit, recognized that the constitutional requirement of probable cause could be satisfied by hearsay information, but held the affidavit to be inadequate for two reasons: First, the application failed to set forth any of the 'underlying circumstances' necessary to enable the magistrate independently to judge the validity of the informant's conclusion that the narcotics were where he said they were. See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Second, the affiant-officers did not attempt to support their claim that their information was 'credible' or that their informant was reliable.

In redefining and in giving better guidelines to the two-pronged test enunciated in Aguilar, the Supreme Court, in Spinelli v. United States, Supra, struck down an affidavit that was more complete than the affidavit that is before us for review. (The affidavit in Spinelli is reproduced fully in an appendix to the opinion.) The affidavit stated, in essence:

1. The FBI had kept track of Spinelli's movements on five days during the month of August, 1965. On four of these occasions, Spinelli was seen crossing one of two bridges leading from Illinois into St. Louis, Missouri, between 11:00 A.M. and 12:15 P.M. On four of the five days, he was also seen parking his car in a lot used by residents of an apartment house in St. Louis between 3:30 P.M. and 4:15 P.M. One day, Spinelli was followed further and seen to enter a particular apartment in the building.

2. An FBI check with the telephone company revealed this apartment contained two telephones listed under the name of Grace P. Hagen, carrying given numbers.

3. 'William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.'

4. The FBI 'has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wages and disseminating wagering information by means of the telephones which have been assigned' specified numbers.

In holding this affidavit constitutionally inadequate, the Court said:

'* * * (W)e first consider the weight to be given the informer's tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affiant swore that his confident was 'reliable,' he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar's other test has not been satisfied. The tip does not contain a sufficient statement of the underlying (facts) from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI's source received his information--it is not alleged that...