People v. Clark, 25150

• Citation: 175 Colo. 446,488 P.2d 565
• Decision Date: 07 September 1971
• Docket Number: No. 25150,25150
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cindy Thorne CLARK, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 565

488 P.2d 565

175 Colo. 446

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cindy Thorne CLARK, Defendant-Appellant.

No. 25150.

Supreme Court of Colorado, En Banc.

Sept. 7, 1971.

Stanley F. Johnson, Ralph S. Josephsohn, Boulder, for plaintiff-appellee.

Robert Bruce Miller, Boulder, for defendant-appellant.

PRINGLE, Chief Justice.

This is an interlocutory appeal brought by Cindy Thorne Clark, hereinafter referred to as the defendant, from an adverse ruling in the trial court on her motion to suppress evidence which she alleged was seized in violation of her constitutional rights.

The only question before us is whether the affidavit used in support of this search warrant was sufficient to establish probable cause for the issuance of the warrant. Defendant attacks the affidavit's validity on two grounds: (1) That the unnamed informant's reliability is not adequately set forth for the magistrate's determination, and (2) that the affidavit is so poorly drafted that it is impossible for the magistrate to tell which of two informants is being referred to in which paragraph, and what information each actually supplied. We are of the opinion that the affidavit is sufficient, and accordingly, we affirm.

I.

As a basis for determining the sufficiency of affidavits which rely on informers' tips, two fundamental tests are laid down by the cases emanating both from our Court and the United States Supreme Court. First, there must be underlying facts stated in the affidavit upon which the issuing magistrate could exercise his judgment as to whether there were reasonable grounds to believe illegal activity was being carried on in the place sought to be searched; and second, there must be statements in the affidavit upon which the issuing magistrate can exercise his judgment as to whether the informer is credible, or the information reliable. People v. Brethauer, Colo., 482 P.2d 369; People v. MacDonald, Colo., 480 P.2d 555; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The flat statement of the informant that he was in the room to be searched and there personally saw 20 bags of heroin unequivocally meets the fitst prong of the Aquilar-Spinelli test. People v. MacDonald, Supra. There is nothing left to speculation as to how the informant knows the illegal activity is taking place.

We must then turn to the question posed by the second prong of Aquilar-Spinelli, i.e., are there sufficient Facts alleged upon which the magistrate can make the determination that the informant is credible or his information reliable? The case at bar involves the use of a first time informer, and the guidelines for such a situation are laid down in this state in People v. MacDonald, Supra. There we said that there were means of qualifying an informant as reliable other than that he had previously given reliable information. To hold otherwise would be to discredit substantial citizens of a community who feel it their duty to report criminal activity. People v. Glaubman, Colo., 485 P.2d 711. This philosophy has been strengthened by United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, announced June 28, 1971.

In MacDonald, we pointed out at least two ways to test reliability other than previous...