People v. Dailey

• Decision Date: 25 January 1982
• Docket Number: No. 81SA389,81SA389
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Shawn P. DAILEY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1068

639 P.2d 1068

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Shawn P. DAILEY, Defendant-Appellee.

No. 81SA389.

Supreme Court of Colorado, En Banc.

Jan. 25, 1982.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Bruce P. Fierst, Denver, for defendant-appellee.

LOHR, Justice.

The defendant, Shawn P. Dailey, is charged in Denver District Court with possession of the narcotic drug cocaine in violation of section 12-22-302, C.R.S.1973 (1978 Repl. Vol. 5). In this interlocutory appeal under C.A.R. 4.1, the prosecution seeks reversal of the trial court's ruling granting the defendant's motion to suppress physical evidence seized during a search of his residence pursuant to a warrant. The prosecution also asks us to overturn the trial court's order granting the defendant's motion for disclosure of the identity of a confidential informant. ¹ We conclude that the trial judge applied an improper standard in ruling on the suppression motion and reverse that ruling and remand the case for further proceedings. We affirm the order requiring that the prosecution disclose the identity of the confidential informant.

On May 12, 1981, Denver detective Mario P. Luchetta executed an affidavit for search warrant before a Denver County Court judge, who then issued a warrant authorizing the search of 776 Marion Street in Denver for narcotics and related items. The affidavit stated, in pertinent part: ²

I, Det. Mario Luchetta presently assigned to the Vice/Drug Control Bureau of the Denver Police Dept. received information from a previous reliable confidential informant whose information has proven reliable on at least two recent past prior occasions which resulted in the seizure of Cocaine, and arrests of parties with the contriband, and cases which were filed in Denver District Court and whose information has never proven unreliable.

Your affiants informant contacted your affiant between the dates of 5-10-81, and 5-12-81 and stated that he was present in the premises of 776 Marion st. during this period of time and observed a Caucasion female known to him as Carol Anderson with several folded sno-seal papers of Cocaine which Carol stated she was selling for $50.00 for the smaller ones and $100.00 for the larger ones. The informant further stated that he observed the Cocaine in the front-room area of the residence. The informant further stated that Carol also worked at Ricks Cafe and sold Cocaine from the Bar also. The informant further stated that Carol lived in a Duplex at 776 Marion st. and that the residence was a duplex with grey brick and a red tile roof.

The informant further stated that he recognized the white powder in the papers to be Cocaine as he the Informant has observed Cocaine on several occasions within his past.

Your affiant and his partner conducted a sporadic surveillance of 776 Marion st. and observed the premises to be a Duplex with grey brick and a red tile roof.

Your affiant also received information from Det. Barnhill of the Vice/Drug Control Bureau who stated he had received information in the past that Carol Anderson was dealing Cocaine from Ricks Cafe.

Upon receiving the warrant, Luchetta and other Denver police officers searched the 776 Marion Street residence and seized certain property, including suspected cocaine. The defendant was later arrested and charged with possession of narcotics. He pleaded not guilty, and a trial was scheduled for August 31, 1981.

The defendant moved to suppress the material seized, and separately moved to require the prosecution to disclose the identity of the confidential informant referred to in the affidavit for search warrant. A hearing on the motions was scheduled for August 5. At the requests of the prosecution, the hearing was continued three times because detective Luchetta was unavailable. On August 31, the day set for trial, the prosecution again requested that the suppression hearing be continued or held open for a day to obtain the detective's presence. The trial court denied this request, but did permit the use of a transcript of the detective's testimony previously given at the preliminary hearing in the case. The affidavit for search warrant, signed by Luchetta, also was received in evidence.

At the suppression hearing, Carol Anderson testified that, although she previously resided at 776 Marion Street with the defendant, she moved on May 1 and was never on the premises from May 10 to May 12, the period in which Luchetta's affidavit stated that the confidential informant reported seeing her there and hearing her make statements about selling cocaine. In support of Anderson's testimony, the defendant presented in evidence a lease-rental agreement reflecting that Anderson became a co-lessee of different residential premises for a term beginning May 1, 1981.

The trial court found from this evidence "that Carol Anderson did not reside in the premises between May 10th of 1981 and May 12th of 1981, and was not present in the premises during that time," and that "the issue is raised as to whether the confidential informant could have been present in those premises and had conversations and indeed offers of drug dealings with Ms. Anderson." The trial court concluded that the information "with respect to the presence of the confidential informant and Ms. Anderson" should be excised from the affidavit and that when this was done the remaining statements did not establish probable cause upon which a search warrant could be based. Finding no basis for a warrantless search, the court then granted the motion to suppress physical evidence. The trial court went on to conclude that its findings raised a question about Luchetta's credibility and ordered that the identity of the confidential informant be disclosed.

On this appeal the prosecution contends that the trial court erred in considering extrinsic evidence to determine the truth of the statements in the affidavit for search warrant, and abused its discretion in ordering the disclosure of the identity of the confidential informant. The defendant asserts that we need not reach the question of impeachment of the warrant affidavit by extrinsic evidence because that affidavit is insufficient on its face.

We conclude that the trial court correctly required disclosure of the identity of the confidential informant. While we determine that the warrant affidavit is facially sufficient, we hold that in considering extrinsic evidence as to the accuracy of the affidavit the trial court applied the wrong standard and omitted necessary findings. A remand for further proceedings accordingly will be necessary to determine whether the physical evidence should be suppressed.

I.

Preliminarily, we note the prosecution's claim that the trial court erred in denying the People's motion for a continuance of the suppression hearing to obtain the presence of officer Luchetta. This issue need not be resolved because of our holding that further proceedings are necessary on the suppression motion. The prosecution should be given the opportunity to present officer Luchetta's testimony in the course of those proceedings. ³

II.

A.

We first address the defendant's contention that the affidavit for search warrant was insufficient on its face because it did not contain enough information to support a conclusion that the confidential informant was credible.

It is well established that an affidavit for a search warrant based on statements of an informant must meet a two-pronged test for sufficiency. First, it must contain facts from which the judge who is requested to issue the warrant can determine independently whether the informant has an adequate basis for his allegations that evidence of crime will be found at the place sought to be searched. Second, it must set forth sufficient information to enable the judge to determine whether the informant is credible or some other basis exists to believe that the information is reliable. 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); People v. Stoppel, Colo., 637 P.2d 384 (1981).

Here, the informant's knowledge was allegedly obtained by personal observations of cocaine in the premises sought to be searched. This adequately established the informant's basis of knowledge and satisfies the first prong of the sufficiency test. E.g., People v. Stoppel, supra; People v. Arnold, 186 Colo. 372, 527 P.2d 806 (1974). The defendant does not dispute this.

The information furnished in the affidavit in support of the informant's credibility is challenged, however, as insufficiently specific to enable the judge to evaluate the informant's credibility. Affiant Luchetta stated that the informant's "information has proven reliable on at least two recent past prior occasions which resulted in the seizure of Cocaine, and arrests of parties with the contriband (sic), and cases which were filed in Denver District Court and whose information has never proven unreliable."

We have found similar but less specific statements to be adequate to establish an informant's credibility. In People v. Arnold, supra, we held that an affidavit which supported the informant's credibility by stating that he was a "previously reliable confidential informant whose information has resulted in narcotics arrest and seizures on at least two past occasions" to be sufficient. Id., 186 Colo. at 376, 527 P.2d at 808. We held a statement substantially identical to that in People v. Arnold to be sufficient to establish an informer's credibility in People v. Ward, 181 Colo. 246, 508 P.2d 1257 (1973). To the same effect is People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

We have drawn the line, however, where the affidavit reflected only the police officer's conclusion that an informant was reliable, and failed to provide a factual basis enabling an...