People v. Montoya
| Decision Date | 30 June 1975 |
| Docket Number | No. 26678,26678 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Luther MONTOYA, Defendant-Appellee. |
| Court | Colorado Supreme Court |
J. E. Losavio, Jr., Dist. Atty., Cecil L. Turner, Asst. Dist. Atty., Pueblo, for plaintiff-appellant.
Darol C. Biddle, James A. Carleo, Pueblo, for defendant-appellee.
This is an interlocutory appeal from the trial court's order granting the defendant's motion to suppress tangible evidence. The defendant is charged with possession of a narcotic drug (heroin) and with theft (over $100). A warrant had been issued for the search during which the evidence was seized. The warrant was supported by an affidavit of a police officer whose information came from an anonymous informant.
The issues argued on appeal are whether there was probable cause for the issuance of the warrant; and, if not, whether there was probable cause for the arrest with the search and, if so, whether the search was incident thereto. The court ruled only that the warrant was not supported by probable cause. This we affirm. We remand for a ruling on the other questions.
The affidavit supporting the issuance of the warrant in this case was sworn to by a police officer on February 11, 1974. It is long and filled with immaterialities. We paraphrase it as follows:
In June, 1973, the defendant was arrested and charged with possession of heroin. The defendant was personally known to the affiant. The defendant had been seen by the affiant entering and leaving the residence sought to be searched. Another police officer had also observed the defendant at the residence. At a different time, the defendant was seen with a named woman who was arrested at that residence for a charge not specified in the affidavit. The woman stated that the defendant was a friend of hers.
The affiant has been contracted several times by a confidential unnamed informant, who had been 'furnishing the affiant with drug traffickers and drug information' in the area. In April, 1973, the informant told the affiant that a named individual (not the defendant) who lived on Evans Avenue, was dealing in heroin. That same month, that individual was arrested and subsequently convicted. The informant correctly identified the residence of the individual. The informant told the officer-affiant that the defendant was associating with another individual who was using narcotics. The officer consulted the Pueblo Police Department, and determined that this last named individual had a reputation for being a user of narcotics.
The informant told the officer-affiant that still another individual was 'now out of confinement, and was driving an orange Corvette car, and was beginning to associate with persons reputed to be drug dealers.' The affiant saw the individual one day later, and he was driving an orange Corvette. The affiant was told by another police officer that this individual was seen with a person reputed to be dealing in drugs.
In June, 1973 (eight months before the date of this affidavit), the informant contracted the officer-affiant and told him that the defendant was living at a certain address, that the defendant had shown the informant a powder substance in a clear baggie; and that the defendant stated that it was heroin which was for sale. A search then made when the defendant was not present revealed no powder substance, although narcotics paraphernalia were found. The informant subsequently told the officer that the defendant had taken the baggie with him when he left the premises.
On February 11, 1974, the affiant was contacted by the informant who told him that the defendant was living at the address sought to be searched, and that, while the informant was inside the house, the defendant had shown him some powder substance wrapped in foil and had told the informant that the powder was heroin, and that it was for sale. The informant said that the defendant then placed this foil packet in his pocket.
During all contacts with the informant, the affiant has found him to be accurate and reliable.
The two-pronged Aguilar-Spinelli test, as enunciated by the United States Supreme Court, requires first--that the affidavit set forth underlying circumstances so as to enable the magistrate to independently judge the validity of the informant's conclusion that criminal activity exists. The second prong requires--that the affiant--police officer support his request for a warrant with information showing that the informant was credible, or his information was reliable. 1
The first prong goes to the logic of the proposition--What caused the informant to conclude that criminal activity was taking place? This prong can be satisfied in several ways, one of which is the assertion of personal knowledge: The informant saw the incriminating activity, and that fact is related to the magistrate.
The second prong goes to the trustworthiness of the informant--What caused the police officer to believe the information relayed by the informant? To satisfy this test, an assertion that the informant has previously furnished solid material information of specified criminal activity will suffice. An affidavit does not satisfy the second prong by merely stating that the informant is reliable, or that he has supplied information in the past which proved to be accurate. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971). Nor are irrelevant, albeit correct, details sufficient.
We hold that the first prong of the Aguilar-Spinelli test is met by the informant's assertion of personally viewing the powder; and by being told by the defendant that it was heroin and that it was for sale.
The fatal defect in the affidavit is its failure to satisfy the second prong of the Aguilar-Spinelli test. The affidavit fails to give sufficient information so that the independent judicial determination of the informant's credibility, or the information's reliability can be reached.
There is no allegation that any information supplied by the informant led to any arrests or convictions. Although the...
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