People v. Eirish, 03CA2225.

Docket NºNo. 03CA2225.
Citation165 P.3d 848
Case DateFebruary 08, 2007
CourtCourt of Appeals of Colorado
165 P.3d 848
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Scott C. EIRISH, Defendant-Appellant.
No. 03CA2225.
Colorado Court of Appeals, Div. III.
February 8, 2007.
Rehearing Denied April 19, 2007.
Certiorari Denied August 27, 2007.

[165 P.3d 851]

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROMÁN.

Defendant, Scott C. Eirish, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute a schedule II controlled substance, methamphetamine. We remand for further proceedings.

According to the affidavit submitted in support of a search warrant, police officers used a confidential informant to set up a drug buy between an undercover officer and a methamphetamine broker. During the attempted transaction, the broker said that he needed to go to Golden Gate Canyon to obtain the drugs from his source and would return with the requested methamphetamine within an hour.

Police officers then followed the broker to a rural property in the canyon and watched him open the gate and drive onto the property "up a steep road to a recreational vehicle parked high above a home on a ridge." One of the officers conducting the surveillance watched the broker back down the road,

165 P.3d 852

followed by a pickup truck. The truck drove down to the property's main home while the broker "drove to a large tin garage located 50-60 yards north of the main home." The broker walked into the garage. After about thirty minutes, the broker exited the garage and returned to his vehicle. Surveillance units followed the broker back to where the undercover officer was waiting to purchase the drugs. The broker explained that his source only had one gram of methamphetamine but that the source would have two ounces in two more hours. The broker then sold the drugs he had to the undercover officer.

Based on the affidavit, a magistrate issued a search warrant for the "premises." The police executed a simultaneous search of the garage and the home. The police found equipment and chemicals used to make methamphetamine in the garage. They also found drugs, a methamphetamine recipe, and other paraphernalia in the home. Defendant, who lives in the home, admitted to owning the drugs found inside the home.

Prior to trial, defendant filed a motion to suppress evidence obtained as a result of an allegedly unlawful search and statements he made at the time of his arrest. The trial court conducted an evidentiary hearing and denied defendant's motion.

I. Sufficiency of Factual Allegations

Defendant first contends that the factual allegations contained in the affidavit in support of the search warrant were insufficient to establish probable cause to search the premises, particularly the home. We agree in part and remand for further proceedings.

Both the United States and Colorado Constitutions prohibit the issuance of a search warrant except upon a showing of probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized. U.S. Const. amend. IV; Colo. Const. art. II, § 7. The purpose of this particularity requirement is to prevent the use of general warrants authorizing wide-ranging rummaging searches in violation of the Constitution's proscription against unreasonable searches and seizures. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

Probable cause must be established within the four corners of the affidavit in support of a search warrant. The affidavit establishes probable cause if it contains sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Pacheco, ___ P.3d ___, 2006 WL 2864645 (Colo. No. 06SA132, Oct. 10, 2006).

In determining whether probable cause exists, we must look at the totality of the circumstances and make a practical, commonsense decision whether a fair probability exists that a search of a particular place will reveal contraband or evidence of a crime. People v. Pacheco, supra.

We give great deference to a magistrate's probable cause determination. We must decide whether an affidavit provided a substantial basis for the issuing magistrate to conclude that probable cause existed for a valid search warrant and not whether we would have found probable cause in the first instance. People v. Hebert, 46 P.3d 473 (Colo.2002).

Doubts must be resolved in favor of a magistrate's determination of probable cause because such deference supports the preference for police to seek a judicial determination of probable cause, rather than resorting to warrantless searches in the hope of relying on consent or another exception to the warrant requirement that might develop at the time of the search. People v. Hebert, supra.

Probable cause must be established with respect to each place to be searched. People v. Randolph, 4 P.3d 477 (Colo.2000); People v. Bachofer, 85 P.3d 615 (Colo.App. 2003). Vague allegations in the affidavit will not suffice. A connection must be shown between the crime suspected and the area to be searched. People v. Kazmierski, 25 P.3d 1207 (Colo.2001). Where the affidavit describes a variety of locations without specifying the crime being perpetrated at each, the

165 P.3d 853

geographic scope of the affidavit comes under close scrutiny. People v. Randolph, supra.

Use of the word "premises" in a search warrant will not in all instances authorize a search of all land encompassed in the description of property contained in the warrant. The word "premises" does not have a particular meaning beyond that dictated by the circumstances in which it is used. Therefore, it can refer to a single room, a large tract of farmland, an apartment building, or another multiple use building which could not be searched without specificity in both affidavit and warrant. People v. Muniz, 198 Colo. 194, 597 P.2d 580 (1979).

Here, the affidavit stated that the broker agreed to provide a sample of methamphetamine to the undercover officer, but "his source lived in the `mountains,'" and the broker "needed to go to the area of the Golden Gate Canyon in Golden to obtain the drugs." After saying that he would return in about one hour, the broker "drove directly to a large property in the canyon."

[The broker] opened the cattle gate at the entrance to the property and drove to the right, driving up a steep road to a recreational vehicle parked high above a home on a ridge. Detective [V] observed [the broker] back down the steep road. He was followed by a newer model Ford pickup truck which was near the site where the RV was located. The Ford truck drove back down to the property's main house while [the broker] drove to a large tin garage located 50-60 yards north of the main home. After 30 minutes [the broker and his girlfriend] exited the large tin shed and returned to their vehicle. Surveillance units followed [the broker] back to [the undercover officer's] location where the transaction was completed.

The affidavit further states:

Based on [the affiant's] training, experience and participation in other drug investigations, [he is] aware that it is common for drug dealers to maintain books, records, notes, ledgers, money orders and other papers relating to the transportation, ordering, storage, sale, and distribution of controlled substances and other items relating to drug dealing, in locations used as storage facilities. These records include bank records, other documents of financial transactions, telephone records, computer records and telephone directories.

The magistrate issued a search warrant for the described "premises," including "any/ all closed containers and the person of any occupants of the residence and all vehicles situated on the property."

A. Garage

Defendant first argues that the affidavit does not support a finding of probable cause to search the garage. Specifically, he asserts that no nexus exists tying him to the broker as the drug source because (1) the broker did not identify defendant as such; (2) the police did not observe the broker contact defendant or anyone else on the property; (3) the police did not observe any behavior indicating drugs were on the property; and (4) the police had no evidence or knowledge indicating that defendant engaged in drug activity. We disagree.

The Colorado Supreme Court has held that during a controlled drug transaction, probable cause exists to search the location to which the seller went before selling the drugs to the police. In People v. Chase, 675 P.2d 315 (Colo.1984), the supreme court found probable cause existed to search a house when a drug dealer stated that he had to go to his source for the drugs, went to the house where he stayed for eleven minutes, and then went immediately to complete the drug transaction. The Chase court recognized that even though the drug dealer could have obtained the drugs from another place, such as his car or residence, the fact that he said that he needed to go to his source for the drugs established probable cause to believe that the house was his drug source.

Courts in other jurisdictions have also found probable cause under similar circumstances to search the locations to which drug dealers go during controlled drug transactions. See, e.g., United States v. Ribeiro, 397 F.3d 43 (1st Cir.2005); United States v. Tellez, 217 F.3d 547 (8th Cir.2000); United

165 P.3d 854

States v. Lightbourne, 104 F.3d 1172 (9th Cir.1997); United States v. Corral, 970 F.2d 719 (10th Cir.1992); Moore v. State, 441 So.2d 1003 (Ala.Crim.App.1983); State v. Witwer, 642 P.2d 828 (Alaska Ct.App.1982); Chavez-Quintanilla v. United States, 788 A.2d...

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