People v. Martinez

• Decision Date: 07 February 1983
• Docket Number: No. 82SA294,82SA294
• Citation: 658 P.2d 260
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Sonia E. MARTINEZ, also known as Sonia Lujan, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 260

658 P.2d 260

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Sonia E. MARTINEZ, also known as Sonia Lujan, Defendant-Appellee.

No. 82SA294.

Supreme Court of Colorado En Banc.

Feb. 7, 1983.

R. Dale Tooley, Dist. Atty., Second Judicial Dist., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

James M. Smith, Denver, for defendant-appellee.

ERICKSON, Justice.

This appeal was taken by the district attorney after the information charging Sonia E. Martinez with narcotics offenses was dismissed by the district court for failure of the prosecution to produce a confidential informant for an in camera hearing. We affirm the district court.

On January 11, 1982, Denver Detective Mario P. Luchetta signed an affidavit for the issuance of a search warrant for the premises located at 4825 West 11 th Avenue in Denver. Detective Luchetta's affidavit specifically provided:

"Your affiants informant contacted your affiant between the dates of 1-9-82 and 1-11-82 and stated he was in the premises of 4825 W. 11th ave. during this period of time and while he was in the premises he observed a female party known to him as Sonja, who was approximately 5' tall, weighing approximately 105 pounds, and who was approximately 23 years old. The informant stated that he observed Sonja with several folded sno-seal papers of suspected Cocaine, which she was selling for $25.00 each. The informant further stated that he observed the Cocaine in the Kitchen area of the residence. The informant further stated that Sonja drove a black Thunderbird which she parks in front of the residence.

"Your affiants informant further stated that he is familiar with the appearance and packaging of Cocaine as he has observed Cocaine on several occasions in his life.

"Your affiant and his partner checked the location of 4825 W. 11th ave. and found the premises, and your affiant further observed a Black Thunderbird (CN-2700), which listed to Sonia Martinez on a 1967 Ford. Your affiant further observed a 1976 Chevrolet (BC-6117). This vehicle listed to Sonia Lujan at 4825 W. 11th ave. Your affiant further checked the Denver Police Dept. Vice/Drug Control files and found Sonja Martinez who matched the above description given to your affiant.

"Your affiant requests the issue of this warrant before the use, sale, or distribution of the above stated contriband.

"Your affiant further showed the confidential reliable informant a Denver Police Dept. Mug Shot (264762) and the informant stated that the photo was that of Sonja Martinez. Denver Police Dept. photo (264762) belongs to Sonja Martinez."

(Spelling retained from original.) Narcotics were seized in the course of the search and Martinez was subsequently arrested. The defendant then filed a motion to suppress, coupled with a motion for the disclosure of the name of the confidential informant supported by a conclusory affidavit. At a hearing on the motions the defendant testified that no person had been inside of her home from January 9, 1982 to January 11, 1982 when the informant claimed to have been in her home.

Relying on our decision in People v. Dailey, 639 P.2d 1068 (Colo.1982), the court ordered that the prosecution produce the confidential informant for an in camera hearing. See also Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Court also directed that defense counsel submit in writing any questions that he desired the court to ask the alleged informant.

In People v. Dailey, supra, we suggested that an in camera hearing is a proper method of protecting the identity of confidential informants. We outlined in footnote 11 of Dailey ¹ an in camera procedure which could be followed. See also People v. Bueno, 646 P.2d 931, 938 n. 8 (Colo.1982). The in camera procedure allows the court to protect the anonymity of informants while protecting defendants and the judicial process against abuse by false affidavit or testimony. In this case, the trial court ordered an in camera hearing so that the confidential informant could be examined by the court and prosecution. Flexibility was left as to the hearing date to protect further the anonymity of the informant. At the in camera hearing, however, the Denver Police Department detective who had secured the warrant reported to the court that the informant refused to appear before the court. The case was thereafter dismissed.

In People v. Dailey, 639 P.2d 1068, 1074-75 (Colo.1982), we said:

"We consider it appropriate that the defendant show some good faith basis in fact to question the accuracy of an affidavit for search warrant before a veracity hearing need be held. Additionally, fairness to the prosecution requires that the motion to suppress specify which statements in the affidavit will be challenged, so that the prosecution can prepare for the suppression hearing. Consequently, as conditions to a veracity hearing testing the truth of averments contained in a warrant affidavit, under our state law we shall require that a motion to suppress (1) be supported by one or more affidavits reflecting a good faith basis for the challenge and (2) contain a specification of the precise statements challenged. We limit the requirements which we announced today, however, to prospective application."

The motions and the affidavit which were filed to support disclosure of the identity of the informant were conclusory and did not, in our view, comply with the prerequisites required by the Dailey case. However, the defendant did testify that no one was in her home during the period specified in the affidavit and the prosecution did not object to the foundation laid by defense counsel at the hearing (except to question credibility) or to the procedure followed by the trial judge.

In our view, the threshold showing required by People v. Dailey, 639 P.2d 1068 (Colo.1982), was woefully inadequate here. However, once the hearing was held and an order for an in camera hearing was entered, the record suggests that the prosecution voiced no objection to the procedure. Thereafter, Detective Luchetta advised the court that the informant refused to appear and that Luchetta did not think the informant should appear. Under the circumstances of this case, we cannot rob the trial judge of the discretion to determine the credibility of the witnesses and to evaluate the evidence which caused him to order an in camera hearing. When the prosecution appeared to accept the procedure outlined for the protection of the informant, it was within the discretion of the trial court to order dismissal when the informant was not produced for an in camera hearing.

Under the circumstances here we will not disturb the lower court's factual determinations which are not clearly erroneous. See People v. Johnson, 653 P.2d 737 (Colo.1982); People v. Ellis, 189 Colo. 242, 539 P.2d 132 (1975). The trial court resolved the factual and credibility issues in favor of the defendant and found that a good faith basis existed for doubting the accuracy of the affidavit, thus necessitating an in camera veracity hearing. People v. Dailey, supra; People v. Bueno, supra. The court therefore acted within its discretion in ordering the hearing. Thereafter, it was not an abuse of the trial court's discretion to dismiss the charges when the prosecution refused to produce the informant in accordance with the court's order.

Accordingly, we affirm the district court.

ROVIRA, J., dissents.

HODGES, C.J., joins in the dissent.

ROVIRA, Justice, dissenting:

In this case the defendant filed a "Motion for Disclosure of Informants' Identity," seeking disclosure of the informant referred to in the affidavit of Detective Mario P. Luchetta, and a "Motion to Suppress and for Return of Property." In support of the latter motion the defendant submitted an unverified affidavit in which she stated: "I hereby verify the facts and contentions contained in the attached MOTION TO SUPPRESS" and "[A]ny additional statements of fact will violate my constitutional privilege against self-incrimination." In addition she stated that her attorney had informed her that the search and seizure was unlawful and, as such, violated her constitutional rights. The motion to suppress did not specify the...