People v. Flores, 88SA82
| Decision Date | 19 December 1988 |
| Docket Number | No. 88SA82,88SA82 |
| Citation | 766 P.2d 114 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Helen Mary FLORES, a/k/a Helen Bambi Flores, and Robert B. Flores, Defendants- Appellees. |
| Court | Colorado Supreme Court |
Norman E. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., L. Douglas Jewell, Deputy Dist. Atty., Denver, for plaintiff-appellant.
Lozow, Lozow and Elliott, Charles W. Elliott, Denver, for defendant-appellee Helen Mary Flores.
Lozow, Lozow and Hughes, Brad Lozow, Denver, for defendant-appellee Robert B. Flores.
The People bring this interlocutory appeal 1 from the Denver District Court's order suppressing the evidence which was seized during two searches of the defendants' residences pursuant to search warrants. The suppression motion was granted after the prosecution refused to identify and produce, for an in camera interview, the confidential informant who gave the officer-affiant information contained in the affidavits supporting the search warrants. We reverse the suppression order and remand the case for further proceedings consistent with this opinion.
Helen and Robert Flores, 2 the defendants below and the appellees in this proceeding, were charged in two informations filed against each of them in Denver District Court with multiple counts of unlawful distribution, manufacturing, dispensing, sale and possession of numerous Schedule II and Schedule IV controlled substances. The cases arose from two separate searches of the defendants' homes, performed pursuant to two separate search warrants. The first search was conducted on June 16, 1986, and the second search was on August 18, 1986.
In June of 1986, a Denver Police Department Detective prepared a search warrant and supporting affidavit requesting authorization for a search of the residence where Helen and Robert Flores lived together, located at 39 Lowell Boulevard in Denver. The warrant was authorized, and on June 16 a search of the Lowell Boulevard residence was conducted (the June search). Evidence was seized from the defendants' home and the defendants were arrested. This search gave rise to the charges filed in the second information. 3
The defendants were released on bond and moved into a new residence, at 455 Newton Street. In August 1986 the detective prepared another search warrant and supporting affidavit, which was again approved by a judge. The warrant was executed on August 18, 1986, at the defendants' Newton Street address (the August search). Evidence was seized and the defendants were arrested. The second search gave rise to the charges filed in the first information. 4
After the charges were filed, the defendants filed numerous motions in both cases attacking the search warrants and the supporting affidavits. 5 These challenges were essentially directed to the veracity of the information found in the affidavits supporting the two search warrants. 6 This information had been provided to law enforcement authorities by a confidential informant. The defendants' specific argument was that the information in the affidavit which they challenged as being untrue or inaccurate was material to the determination of probable cause by both judges and that, without that information, probable cause would not have existed to support issuance of the warrants. The suppression motions were filed with supporting affidavits executed by relatives and a friend. Based on the argument that there was not probable cause for issuance of the search warrant, the defendants moved for suppression of all the evidence as unlawfully obtained.
A motions hearing was held in Denver District Court in February 1988. The trial judge prefaced his ruling in this way:
[W]e have a number of principles involved, but two of them are of prime concern. The first of these is that contrary to the federal rule, which requires a substantial showing before a veracity challenge is allowed, our state supreme court in People v. Dailey[, 639 P.2d 1068 (Colo.1982),] has indicated that it only has to be some good faith basis. What "some" means, of course, is subject to interpretation.
Good faith would indicate something more than frivolous. It has to be a basis in fact, not just a basis in opinion, but a basis in fact.
....
So my first conclusion is that we don't have to have a substantial basis on the part of the defendant. We merely have to have a good faith basis in fact.
My second concern is how does the defendant establish his or her veracity challenge and, indeed, his or her right to a veracity challenge?
....
If in Colorado you are entitled to a veracity challenge upon some showing of a good faith basis in fact to question the accuracy upon which the search warrant is to be issued, then I find it very difficult for the court to understand why, if you have that right, you are not accorded the access to the materials as to which that right could be accomplished, the general privilege of a nondisclosure of informant to the contrary notwithstanding.
The judge then explained that, given the facts of this particular case, he was going to fashion his own remedy.
I'm going to fashion a remedy in this case, and I don't know if it's appropriate or not.
....
I am going to interview the informant in camera, in confidence. If I then determine that the informant's testimony would be helpful to the defendants in supplementing their request and making a threshhold [sic] requirement for a veracity challenge, then I am going to disclose the information ... to ... the defendants--and give them the opportunity to supplement their showing of good faith.
If I determine that such testimony is not availing to the defendants, then I will have to give you a ruling as to whether this constitutes a good faith basis for veracity challenge independently thereof.
(Emphasis added).
The judge explained that he would conduct this in camera interview at a convenient place, and that the only people present at the interview would be himself, the confidential informant and the court reporter. He ruled that the recorded interview would be sealed and not copied into the file, but would be made available for appellate review. During a discussion in chambers, the court said that "in the event that [the informant] is ... unsupportive at all of the defendants' position in this case, then I ... probably will not disclose the identity." On the contrary, if it turned out that the informant "never told" the police what he was alleged to have said, then the defense was "probably" entitled to know the identity of the informant. The hearing was scheduled to continue at 8:30 the next morning, in order to give the prosecution and the investigating detective an opportunity to locate and talk with the confidential informant.
At the continuation of the motions hearing the next morning, the prosecutor and investigating detective told the judge that the informant was not willing to come forward. The judge noted: "[B]ecause of various reasons best known to the investigating detective and the district attorney, ... they have elected not to identify the informant or have him produced for purposes of interrogation by the court in camera." Because the informant was not produced for this in camera interview, the court granted the defendants' motions and suppressed all the evidence arising from both searches. The judge actually ruled on the motion to suppress evidence in conjunction with the motion for disclosure of the informant and the motion for a veracity hearing. He held:
I conclude thereby that inasmuch as the prosecution is not willing to identify and produce the informant for purposes of the in camera interview by the court for possible revelation to the defendant, or defendants I should say, incident to the veracity challenge and incident to the motion to suppress, that as an appropriate and proper sanction for the refusal to obey the order of court and to further protect the rights of the defendants in accordance with Brady v. Maryland, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] that I am going to grant the motions to suppress filed by both defendants.
Therefore, no items seized incident to the search of the premises or directly arising therefrom will be allowed to be received into evidence in this trial. I am granting the motions to suppress.
The prosecution filed this interlocutory appeal from the judge's suppression order.
This case requires us to consider the interrelation of a veracity challenge and a request for disclosure of an informant's identity. Our cases have recognized the appropriateness of veracity hearings, which are inquiries into the accuracy of statements found in an affidavit supporting a search warrant, "at least where the good faith of the police officer-affiant was explicitly or tacitly at issue." People v. Dailey, 639 P.2d 1068, 1073 (Colo.1982). Veracity 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 the affidavit for the purpose of destroying the factual foundation for a determination of probable cause." 639 P.2d at 1073. We discussed the United States Supreme Court's standard in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), describing the circumstances under which a veracity hearing must be held when a defendant has challenged the accuracy of an affidavit supporting a search warrant. Dailey, 639 P.2d at 1074-75.
As is the case here, Dailey involved a challenge to the accuracy of statements in an affidavit supporting a search warrant. In Dailey, we set forth this two-part test:
[A]s conditions to a veracity hearing testing the truth of averments contained in a warrant affidavit, under our state law we shall require that a...
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People v. Warner, 06CA2252.
...with specificity the precise statements being challenged. People v. Dailey, 639 P.2d 1068, 1074–75 (Colo.1982); People v. Flores, 766 P.2d 114, 119 (Colo.1988). Thus, the defendant's suppression motion must be supported by one or more affidavits to meet these threshold requirements. Dailey,......
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...with specificity the precise statements being challenged. People v. Dailey, 639 P.2d 1068, 1074-75 (Colo. 1982); People v. Flores, 766 P.2d 114, 119 (Colo. 1988). Thus, the defendant's suppression motion must be supported by one or more affidavits to meet these threshold requirements. Daile......
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