People v. Montoya

• Citation: 44 Colo.App. 234,616 P.2d 156
• Decision Date: 01 May 1980
• Docket Number: Nos. 77-640,77-783,s. 77-640
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward Rudolph MONTOYA, Defendant-Appellant. . II
• Court: Court of Appeals of Colorado

Page 156

616 P.2d 156

44 Colo.App. 234

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward Rudolph MONTOYA, Defendant-Appellant.

Nos. 77-640, 77-783.

Colorado Court of Appeals, Div. II.

May 1, 1980.

As Modified On Denial of Rehearing May 22, 1980.

Certiorari Denied Aug. 25, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Gerash & Springer, P. C., Scott H. Robinson, Walter L. Gerash, Denver, for defendant-appellant.

STERNBERG, Judge.

Defendant, Edward Rudolph Montoya, appeals his conviction of conspiracy to possess for sale a narcotic drug. We affirm.

Montoya's conviction stems from extensive and long term investigation of drug trafficking in and around Pueblo, Colorado. The investigation, which focused largely on the activities of Montoya who was believed to be the head of a large heroin and cocaine distribution organization, was initially unsuccessful because of Montoya's alleged refusal to deal with anyone he did not personally know. Therefore, a Denver Police Department detective assigned to the Attorney General's Organized Crime Strike Force, by affidavit, requested wiretap authorization for three telephones, two of which were subscribed to by associates of Montoya and one, in his wife's name, was located at Montoya's residence in Pueblo.

The 29-page affidavit included information from four confidential informants, designated "A," "B," "C," and "D," as well as other information obtained through police investigation. The crux of the affidavit was that Montoya was using the telephones to run a drug distribution operation. The wiretap request was granted by District Judge Philip J. Cabibi on October 20, 1974, and interception of telephone calls commenced on October 22, 1974.

On October 28 and 29, 1974, information obtained from monitored calls indicated that a drug transaction was imminent. Conversations between Montoya and one Ben Maciel suggested that Maciel was about to leave on a trip for the purpose of obtaining illegal drugs. Investigators staked out the Maciel residence in Colorado Springs and observed Montoya deliver to Maciel a business-sized envelope allegedly containing money. Maciel was then followed to the airport; he flew to Denver and then to Tucson. In Tucson he was followed to a motel where he met a John Peebly. He was later followed to the Mexican border on two occasions. Upon his return from the second trip to Mexico, agents observed him taking a wrapped bundle to his motel room. Later that day, agents observed Maciel and Peebly secreting newspaper covered parcels in an automobile. Maciel was followed back to the airport where he boarded a plane for Denver. Peebly, in the automobile, was tailed, with the aid of an electronic device known as a "bumper-beeper", as he traveled toward Colorado.

Shortly before the Peebly vehicle reached the Pueblo County line, officers of the Pueblo Police Department picked up Judge Cabibi at his home, provided him with an affidavit requesting a search warrant for the Peebly vehicle, and drove him at high speed to the county line where a road block had been set up. There the affiant was sworn and signed the affidavit before the judge, who then authorized the search. The automobile, which had previously been stopped, was searched and a quantity of heroin seized.

An information was subsequently filed against Montoya charging him with employing another to transport a narcotic drug, conspiracy to employ another to transport a narcotic drug, possession for sale of a narcotic drug, and conspiracy to possess for sale a narcotic drug. He was convicted of the last offense only.

Prior to trial, Montoya filed motions to suppress the conversations seized as a result of the wiretap and the evidence obtained from the search of the Peebly vehicle. These motions were denied.

I. The Wiretap

Montoya correctly maintains that his conviction could not have been obtained absent introduction at trial of the recorded telephone conversations. He asserts two grounds upon which these conversations should have been suppressed: First, that there was insufficient evidence of present probable cause for issuance of the wiretap authorization; second, that the facts and circumstances set out in the affidavit requesting the wiretap were insufficient to permit an independent determination of reliability of the confidential informants. We disagree with both assertions.

A court order authorizing the wiretapping of telephonic communications must be scrutinized under the same stringent standards as other Fourth Amendment searches and seizures. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). And, in Colorado affidavits in support of a request for an ex parte wiretap order must establish that there is probable cause to believe that evidence of specific enumerated crimes will be obtained through the substantial intrusion upon the individual's privacy. Section 16-15-102, C.R.S.1973. Dealing in narcotics is one of the enumerated offenses included in the wiretap statute. Section 16-15-102(1)(a)(VI), C.R.S.1973.

As stated in People v. Peschong, 181 Colo. 29, 32, 506 P.2d 1232, 1234 (1973), "(t)he standards of probable cause for issuance of a search warrant based on information given to an affiant police officer by an unidentified informant are set forth in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)." See also People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). Under the Aguilar-Spinelli test, the affidavit must (1) provide sufficient underlying circumstances to enable the magistrate to determine independently whether there is probable cause to believe that illegal activity is being carried on in the place to be searched, and (2) set forth sufficient facts to allow the magistrate to determine independently that the informant is credible or his information reliable. People v. Lucero, 196 Colo. 268, 583 P.2d 287 (1978).

A. Underlying Circumstances

We note initially that a substantial amount of information in the affidavit is either extraneous or innocuous, and thus could not serve alone as the basis for a determination of probable cause. Also, included in the affidavit is some information which is allegedly erroneous. However, if after striking this information probable cause still exists, the wiretap authorization must be sustained. See People v. Hampton, 196 Colo. 466, 587 P.2d 275 (1978).

We conclude that the information in the affidavit provided a sufficiently detailed statement of underlying facts and circumstances upon which the authorizing court could reasonably conclude that the telephones were being used in connection with illegal drug activities, thereby satisfying the first prong of the Aguilar-Spinelli test.

Informants "A" and "C" related personal knowledge of Montoya's illegal enterprise. At the time they made their statements, both informants asserted that Montoya's drug activities had been carried on for several years. Police investigation, as presented by the affiant, also indicated that a long-standing drug distribution organization was involved. In March of 1974, informant "A" stated specifically that he had been in the Montoya residence "within the last six months," and had overheard drug transactions being arranged by Montoya over the telephone. He also related that Montoya had solicited him for the purpose of selling heroin.

Informant "C" related that he had purchased heroin from Montoya on from six to ten occasions, the most recent being in the later part of 1973. He stated that some of the arrangements for the purchases were made by Montoya over the telephone. The affidavit states that on June 11, 1974, informant "C" introduced agent Kenneth Brown to Montoya for the purpose of arranging a drug purchase, and that arrangements were made, and sales of heroin took place, on June 13, June 24, and July 19, 1974. The affidavit asserts that the purchases were made from Maciel who stated to agent Brown that he handled most of Montoya's business.

Montoya next asserts that the information in the affidavit upon which the determination of probable cause could have been based was "hopelessly stale" and therefore inadequate to support the issuance of the wiretap authorization. We disagree.

It is true that the element of time is crucial to a determination of the existence of probable cause, United States v. Johnson, 461 F.2d 285 (10th Cir. 1972); see People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976); and if information provided the issuing magistrate does not reasonably demonstrate that the suspect is continuously engaged in criminal activity, a warrant based on dated, or "stale," evidence is invalid. People v. Erthal, 194 Colo. 147, 570 P.2d 534 (1977). Probable cause ceases to exist when it is no longer reasonable to presume that the criminal activities are still being carried on in the place to be searched. United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978).

In the instant case, it was not unreasonable for the trial court to conclude that at the time the wiretap was authorized, criminal activities continued to be carried on through the use of Montoya's telephone. Unlike the situation in People v. Erthal, supra, where a search warrant based on an affiant's observation of easily disposed of stolen goods in a carpenter's shop two months prior to the request for the warrant was held invalid, the information here indicated a long-standing and continuous conspiracy to distribute narcotics. The court in Erthal noted that, in that case, there was no indication that the suspect continuously engaged in criminal activity, or continued to use feloniously obtained...