People v. Hill

• Decision Date: 19 November 1984
• Docket Number: No. 84SA202,84SA202
• Parties: PEOPLE of the State of Colorado, County of Boulder, Plaintiff-Appellant, v. Donald Eugene HILL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 856

690 P.2d 856

PEOPLE of the State of Colorado, County of Boulder Plaintiff-Appellant, v. Donald Eugene HILL, Defendant-Appellee.

No. 84SA202.

Supreme Court of Colorado En Banc.

Nov. 19, 1984.

Alexender M. Hunter, Dist. Atty., Richard F. Good, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Steven K. Jacobson, Deputy State Public Defender, Boulder, for defendant-appellee.

LOHR, Justice:

In an interlocutory appeal from the District Court for Boulder County, the People challenge an order suppressing evidence seized from the defendant's motel room and statements made by him after his ensuing arrest. The court ruled that the affidavit supporting the warrant pursuant to which the search was performed did not establish probable cause. We reverse the suppression order.

I.

On September 14, 1983, John Haney, an owner of the Bar L Motel, notified Longmont police of activity that he considered suspicious. Haney told Officer Daniel Kinsey that Donald Eugene Hill, the defendant, had occupied Room # 3 at the motel since September 2, 1983. Hill received approximately twenty visitors daily, and each of them stayed for only a few minutes. Haney observed that the visitors appeared to be buying small items from Hill, but Haney could not identify the purchases. In addition, Haney reported that he had overheard Hill talking with a visitor about money, that Hill continually burned incense in Room # 3, and that Hill would not permit motel employees to enter his room while he was gone or to change the beds. Haney's wife, Mildred, told Officer Kinsey that Hill's visitors usually did not enter the room, but rather stood talking in the doorway. She also reported that Hill paid for his room in cash and, when doing so, had a large amount of money in his billfold.

On the strength of these statements, and with the help of Officer Craig Earhart, Officer Kinsey set up an observation post in a room across the courtyard from Hill's room on September 15. A detailed description of the results of this surveillance was set forth in an affidavit for search warrant signed by Kinsey. He reported that during approximately nine hours of observation, the two officers saw more than twenty people arrive at different times at the motel parking lot and proceed to Room # 3. Of those who found the room occupied, most stayed less than five minutes. The officers saw one man return from the room, sit in his car and place in his mouth something that appeared to Officer Kinsey to be a marijuana cigarette. Another man was seen on two occasions leaving the room carrying a small cellophane package. The second time, Officer Earhart observed that the package contained a white powdery substance. Earhart, who had previous experience in identifying controlled substances, thought that the contents of the package resembled cocaine.

Officer Kinsey's affidavit, which included the observations reported by the Haneys, was used to obtain a search warrant for Room # 3. Police officers entered the room, removed Donald Hill and another individual, and found various items of drug-related paraphernalia as well as a small quantity of marijuana and eight bindles of cocaine. The defendant was charged with possession, possession with intent to sell, conspiracy, and sale--all relating to cocaine ¹--and possession of not more than one ounce of marijuana. ²

After a suppression hearing, the district court ordered that the statements in the affidavit concerning the man carrying the cellophane packets be struck as untrue. Without these statements, the court concluded that the information in the affidavit did not provide reasonable grounds to believe that criminal activity was taking place in the motel room. See generally People v. Dailey, 639 P.2d 1068, 1073-76 (discussing procedure for challenging veracity of statements in an affidavit, and effect of finding some statements untrue). Because what the trial court described as a recitation of "numerous visits of short duration" did not "rise to a level sufficient to establish probable cause," the court held that the officers were not validly on the premises, and ordered the evidence suppressed. ³ The court also suppressed statements made by the defendant after his arrest because the arrest was based upon the evidence obtained during the unlawful search. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Saiz, 620 P.2d 15 (Colo.1980). The People appealed the suppression order. ⁴ We disagree with the district court's analysis of the affidavit and conclude that it establishes probable cause to support the search of Hill's motel room.

II.

" 'Probable cause' depends upon probabilities and not certainties, on knowledge grounded in the practical considerations of everyday life on which reasonable and prudent persons act." People v. Chase, 675 P.2d 315, 317 (Colo.1984); accord, e.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Ball, 639 P.2d 1078 (Colo.1982). If an affidavit for a search warrant sets forth sufficient facts for a person of reasonable caution to believe that contraband or material evidence of criminal activity is to be found on the premises, it establishes probable cause to support a search warrant. People v. Chase, 675 P.2d 315 (Colo.1984); People v. Conwell, 649 P.2d 1099 (Colo.1982); see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. In scrutinizing an affidavit to determine whether it establishes probable cause, a court must interpret that document in a common sense fashion and not hypertechnically. E.g., United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; People v. Hearty, 644 P.2d 302 (Colo.1982); People v. Ball, 639 P.2d 1078 (Colo.1982). Moreover, police officers should be encouraged to seek a warrant before performing a search, and cases raising doubts concerning probable cause should be resolved in accordance with this preference for warrants. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979); People v. Whisenhunt, 173 Colo. 109, 476 P.2d 997 (1970).

The trial court concluded that the only evidence of criminal activity remaining in the affidavit after the false statements were excised was the observation of a man putting what looked like a marijuana cigarette to his lips. Since the affiant did not state grounds to support a belief that it was not a hand-rolled tobacco cigarette, since he did not claim expertise in what a marijuana cigarette looks like, and since he did not state that he could...