People v. Leftwich

• Decision Date: 07 March 1994
• Docket Number: 93SA291,Nos. 93SA290,s. 93SA290
• Citation: 869 P.2d 1260
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jeffrey LEFTWICH, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Alan WADE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1260

869 P.2d 1260

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v.Jeffrey LEFTWICH, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v.David Alan WADE, Defendant-Appellee.

Nos. 93SA290, 93SA291.

Supreme Court of Colorado En Banc.

March 7, 1994.

Alexander M. Hunter, Dist. Atty., Twentieth Judicial Dist., William F. Nagel, Appellate Chief Deputy Dist. Atty., Bryan Quiram, Chief Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Howard Bittman, Boulder, for defendant-appelleeJeffrey Leftwich.

Philip L. Dubois, Boulder, for defendant-appelleeDavid Alan Wade.

Justice ERICKSONdelivered the Opinion of the Court.

The prosecution in this interlocutory appeal challenges suppression orders entered by the Boulder County District Court in the prosecutions of Jeffrey Leftwich(Leftwich) and David Alan Wade(Wade).¹ Leftwich and Wade are each charged with possession of marijuana concentrate with intent to sell ² and cultivation of marijuana ³ and are being tried separately.The prosecution obtained evidence it intends to use at the trial of Leftwich and the trial of Wade as the result of a warrant to search their residence.⁴ Leftwich moved to suppress the evidence asserting that the search warrant was not valid and Wade joined the motion.After a hearing, the trial court concluded the affidavit that resulted in the search warrant did not set forth sufficient facts to allow a magistrate or judge (magistrate) to find probable cause to search Leftwich's home.The trial court also held that the good-faith exception to the exclusionary rule and section 16-3-308, 8A C.R.S.(1986), are not applicable and therefore suppressed the evidence obtained in the search of the residence.We affirm the trial court's rulings.

I

In March of 1993, Detective Kurt Weiler(Detective Weiler), an officer of the Boulder Police Department, received an anonymous letter addressed to the "Boulder Colorado Police Department--Drug Squad," which stated:

This letter is to inform you that the person described below is an active drug dealer and warrants investigation.This is based on first-hand knowledge and eyewitness accounts by me and others.Below are some facts that may help you.

Person

Name: Jeff

Age: 35-40

Height: 5'9"'

Weight: 170 lbs.

Race: white

Features: Bald on the top of his head.

Crooked front teeth.

Address: Lives in Boulder, Colorado and is a student at the University.

Vehicle

Two door van with a large window on the drivers [sic] side.

The passenger side has a sliding door.

Color is steel blue.

License plate number is MXS 518 or MSX 518, Colorado.

Drugs are collected at a music store located in Kansas City just North of the intersection of 39th and Main on the East side of the street.The collection times may coincide with the vacation times of the university in Colorado.The drugs are then taken to Boulder for resale.

We hope that this information will help you and are sorry that we must remain anonymous as other innocent people may get involved.

Your friends in Kansas City, March, 1993.

Detective Weiler commenced an investigation based on the information contained in the letter.He was able to confirm the non-incriminatory factual details recited in the letter, but the investigation did not yield any information implicating Leftwich in illegal activity.⁵ At the suppression hearing, Detective Weiler stated: "I think based on the anonymous letter that I had, I really didn't have [the] opportunity to corroborate criminal activity, a lot of other facts [were] corroborated, not the criminal acts."He also stated: "I'm always going to try to look at the evidence and corroborate criminal activity.That's my job.In this case it didn't happen."⁶

There was no corroboration that Leftwich was involved with drugs.Nothing in the record establishes Leftwich ever visited the music store described in the letter or collected drugs at the music store in Kansas City.Nothing supports the claim that the music store was a site of drug activity, or that any drugs were taken to Boulder, Colorado.In addition, the record is devoid of any facts linking illegal activity to Leftwich's residence.The investigation only established that Leftwich lives in Boulder, goes to the University of Colorado, and took a trip to Kansas City during spring break.⁷

Despite the lack of any corroboration of the vague allegations of criminal activity in the letter and the absence of information linking drugs to Leftwich's residence, Detective Weiler prepared an affidavit for a search warrant for Leftwich's home.The affidavit was reviewed by Weiler's supervisor, the Boulder Police Department legal advisor, and the Boulder County Chief Deputy District Attorney.The chief deputy district attorney advised Detective Weiler that the affidavit presented a close case and that a judge might not sign it.Weiler nonetheless filed the application and a district court judge issued a warrant.A search of Leftwich's home was conducted and marijuana plants and marijuana concentrate were found.⁸

II

A

The Fourth Amendment to the United States Constitutionandarticle II, section 7 of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and objects to be seized.Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched.People v. Abeyta, 795 P.2d 1324, 1327(Colo.1990);People v. Quintana, 785 P.2d 934, 936(Colo.1990).

To determine if probable cause exists, the totality of the facts and circumstances known to the officer at the time of the search must be considered.Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983)(abandoning the two-pronged test that was set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964), andSpinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969)).We have adopted the totality-of-the-circumstances test formulated in Gates in construing the Search and Seizure Clause of the Colorado Constitution.People v. Pannebaker, 714 P.2d 904, 907(Colo.1986).

The totality-of-the-circumstances test does not lower the standard for probable cause determinations; it simply gives reviewing courts more flexibility to determine the overall reliability of information from a confidential informant:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is fair probability that contraband or evidence of crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332;see alsoAbeyta, 795 P.2d at 1327("Whether facts in an affidavit provided by a confidential informant establish probable cause for a search warrant depends not on a rigid set of legal rules but on a practical, nontechnical totality of the circumstances approach that considers an informant's veracity, reliability, and basis of knowledge.")(quotations omitted).Gates provides that veracity or reliability and basis of knowledge should not be accorded independent status: "Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability."Gates, 462 U.S. at 233, 103 S.Ct. at 2329.

A reviewing court does not review a magistrate's determination of probable cause de novo because the determination is entitled to great deference.Spinelli, 393 U.S. at 410, 89 S.Ct. at 584.The duty of a reviewing court is only to ensure that a magistrate had a substantial basis for concluding that probable cause existed.Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33(quotingJones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. at 725, 735-36, 4 L.Ed.2d 697(1960));see alsoAbeyta, 795 P.2d at 1327.

B

The anonymous letter that implicates Leftwich does not establish a substantial basis for concluding there was probable cause to search Leftwich's residence.Pursuant to Gates, we consider "the various indicia of reliability (and unreliability) attending an informant's tip" in assessing the basis for a probable cause determination.Gates, 462 U.S. at 234, 103 S.Ct. at 2330.

Because the letter came from an anonymous informant, it is difficult to assess the veracity of the information contained in the letter.Detective Weiler could not consider or rely on the past performance of the informer and nothing in the letter constitutes a declaration against the informer's penal interest.SeeGates, 462 U.S. at 227, 103 S.Ct. at 2326;see alsoPeople v. Paquin, 811 P.2d 394, 398(Colo.1991)(emphasizing that the confidential informant personally spoke to the affiant and the informant had previously provided information which resulted in a felony arrest);Abeyta, 795 P.2d at 1328-29(sustaining the finding of probable cause based in part on the fact that the affiant had personally spoken to three anonymous informants);People v. Diaz, 793 P.2d 1181, 1184-85(Colo.1990)(finding lack of probable cause in part because there was no information provided from which the court could assess the informants' veracity).

The inability of Detective Weiler to establish the informant's reliability and veracity does not end the inquiry because a deficiency regarding reliability and veracity can be overcome by a strong showing as to the informant's basis of knowledge or some other indicia of reliability.SeeGates, 462 U.S. at 233, 103 S.Ct. at 2329-30;Diaz, 793...