People v. Cook
| Decision Date | 08 May 1986 |
| Docket Number | No. 84CA0834,84CA0834 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Theodore James COOK, Defendant-Appellant. . IV |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Public Defender, Seth J. Benezra, Lynda H. Knowles, Deputy Public Defenders, Denver, for defendant-appellant.
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Defendant, Theodore James Cook, appeals from the judgment of conviction entered upon a jury verdict of guilty of unlawful distribution, dispensing, sale, or possession of cocaine, and possession of LSD and psilocybin. We remand with directions.
Apparently acting on an informant's tip, an undercover officer of the Colorado Bureau of Investigation met co-defendant, Douglas Sandidge, at Rangeley, Colorado, and arranged for the purchase of a pound of cocaine at Grand Junction, Colorado, where his source lived. Sandidge was accompanied by a woman, Sonnie Rector.
Two days later the agent met Sandidge and Rector at Grand Junction. The undercover agent's vehicle was equipped with a microphone, and the conversations that took place between the undercover agent, Sandidge, and Rector were monitored and taped by another C.B.I. agent. The undercover agent made the purchase from co-defendants Sandidge and one Robert Russell Roy in a garage owned by Roy. After the agent left the garage, officers entered the garage and arrested Sandidge and Roy. One of them told the officers that defendant Cook was in another room of the garage. He was found crouching in a corner, and was arrested.
The following day, the police officers requested a warrant to search Cook's trailer, which was located about 150 feet from the garage. The affidavit in support of the warrant was made by the C.B.I. agent who had monitored the taped conversation prior to the arrests. Statements in this affidavit set forth that the affiant heard Sandidge indicating to the undercover officer that Cook was the source of the cocaine. The search of Cook's trailer resulted in the seizure of evidence connecting him with the sale and possession of unlawful drugs.
Before trial, defendant moved to suppress the evidence seized during the search of his trailer. He challenged the veracity of certain statements in the affidavit in support of the search warrant, and argued that, if those statements were stricken, the remaining statements of the affidavit would not establish probable cause to search defendant's residence. Defendant also moved for the disclosure of the identity of the confidential informant, and filed a discovery motion requesting the complete tapes of the agent's conversations with Sandidge and Rector.
The trial court denied defendant's motion to disclose the informant's identity. It found that the defendant had made a showing of need for disclosure, but held that the safety of the informant would be endangered by disclosure, and that any deleterious effect on defendant's case because of non-disclosure would be minimal.
The court also denied defendant's motion for full access to the tape recordings on the ground that such access would reveal the identity of the confidential informant. However, the court ordered the tapes to be transcribed, and ordered the prosecution to provide defendant with a partial transcription of the recording which did not indicate the identity of the informant.
Finally, the trial court denied defendant's motion for a hearing concerning the veracity of the challenged statements in the affidavit underlying the search warrant. Consequently, defendant's motion to suppress the evidence seized in his trailer was denied.
Defendant contends that the trial court erred in three respects: 1) it erroneously denied his motion for disclosure of the identity of the confidential informant; 2) it erred in refusing to hold a veracity hearing; and 3) it abridged his due process rights when it denied him access to all the tape recordings made by the police on the evening of the arrest. We disagree with defendant's first and third contentions, but agree with the second.
Once a defendant has made a minimal showing of need for the information, the propriety of disclosing a confidential informant's identity is determined by balancing the public interest in protecting the flow of information against the right of an accused to prepare for his defense. Parlapiano v. District Court, 177 Colo. 36, 492 P.2d 626 (1972). Among the factors to be considered in making this determination are the availability of the informant to testify, whether the informant was a witness to the crime, whether there are other witnesses available to testify, whether it is likely that the informant's testimony will vary significantly from other witnesses, how deeply the informant was involved in the criminal transaction, and whether the defendant knows or without undue effort could discover the informant's identity. People v. Marquez, 190 Colo. 255, 546 P.2d 482 (1976), citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
Here, the trial court denied disclosure of the confidential informant after considering the factors discussed in People v. Marquez, supra, and concluded that the informant's testimony would likely be similar to that of the undercover agent, and disclosure would endanger the informant. Because the trial court made its determination on the basis of the relevant factors involved in this case, we perceive no abuse of its discretion. See People v. Dailey, 639 P.2d 1068 (Colo.1982).
The defendant contends that the trial court erred in denying his motion to suppress without holding a hearing on the veracity of the statements in the affidavit supporting the search warrant. We agree.
Veracity challenges to affidavits of police officers are permitted in Colorado, and statements in an affidavit which are shown to be false must be stricken before the sufficiency of the affidavit is determined. People v. Dailey, supra.
Federal law permits a veracity challenge upon "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included ... in the ... affidavit." Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In contrast, in Colorado, the defendant is entitled to a veracity...
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People v. Flores, 88SA82
...challenges to police officers' affidavits are permitted in Colorado, and Dailey is the controlling case in this area. People v. Cook, 722 P.2d 432, 435 (Colo.App.1986). In Dailey, we reviewed a trial court's decision to permit the defendant to challenge "the accuracy of the statements in th......
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People v. District Court In and For First Judicial Dist., Jefferson County
...the propriety of disclosing the identity of a confidential informant should be decided by applying a balancing test. People v. Cook, 722 P.2d 432, 435 (Colo.App.1986) (emphasis added). In deciding whether to order disclosure, a trial court must weigh the public interest in protecting the pu......
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Section 7 SECURITY OF PERSON AND PROPERTY - SEARCHES - SEIZURES - WARRANTS.
...to the police against the accused's right to prepare his defense. People v. Dailey, 639 P.2d 1068 (Colo. 1982); People v. Cook, 722 P.2d 432 (Colo. App. 1986). Disclosure in connection with motion to suppress. The first situation involving disclosure arises in connection with a defendant's ......
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Section 25 DUE PROCESS OF LAW.
...court has duty to examine in camera the complete tapes supporting search warrant in connection with a veracity challenge. People v. Cook, 722 P.2d 432 (Colo. App. 1986). Excuse by court of defense witness on basis that the witness would exercise his fifth amendment privilege not to testify ......