People v. Pannebaker

• Decision Date: 03 March 1986
• Docket Number: No. 85SA222,85SA222
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John A. PANNEBAKER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 904

714 P.2d 904

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John A. PANNEBAKER, Defendant-Appellee.

No. 85SA222.

Supreme Court of Colorado En Banc.

March 3, 1986.

Alexander M. Hunter, Dist. Atty., John M. Haried, Deputy Dist. Atty., Boulder, Eric R. Perryman, Sp. Deputy Dist. Atty., Denver, for plaintiff-appellant.

Carl F. Manthei, P.C., Boulder, for defendant-appellee.

VOLLACK, Justice.

The People appeal the district court's suppression of evidence seized pursuant to warrants issued upon affidavits. The People claim the district court erred in ruling that there was insufficient probable cause contained within the affidavits for the issuance of the search warrants. Alternatively, the People argue that if the district court was correct as to its ruling that there was insufficient probable cause, the court erred in ruling that the "good faith" exception to the exclusionary rule was inapplicable to save the defective affidavits in this case. We reverse the suppression of the evidence.

I.

On November 19, 1984, based on the affidavit of Denver Detective Larry Subia, Denver County Judge Samuel M. Kirbens issued two warrants to search two residences owned by John Pannebaker. The warrants were based on information Detectives Subia and Martinez received from a first-time, confidential informant. The informant related that John Pannebaker was growing marihuana for illegal sale from two residences in Boulder County. The informant was familiar with the apparent use and sales methods of marihuana because the informant had used marihuana in the past. The informant stated that Pannebaker lived in one of the residences and rented out the other. Further, the informant was inside both residences within the "recent past" and observed marihuana plants growing in what Pannebaker termed the "genesis root system." According to the informant, the growing rooms in the houses were constantly lit with special sunlights. The informant also related that the marihuana growing room was on the second level of the residence which Pannebaker rented and in the attic space of the residence in which Pannebaker lived. At the rented residence, the informant stated that all the windows in the second level growing room were covered with a dark window covering. This was to keep the room warm and to prevent anybody from looking inside. The informant provided a full description of both houses and noted that the residence in which Pannebaker lived did not have an address on the outside of the house. The informant then provided detailed guidance on how to reach that residence.

On November 15, 1984, Detectives Subia and Martinez and the informant drove to the residences to verify the information. Both houses matched the description provided by the informant. The detectives observed the windows on the second level of the rented residence to be covered with black plastic and reflector covering. The detectives noticed that one of several U.S. postal mail boxes contained the name John Pannebaker. Detective Subia looked in the mailbox and found unopened mail addressed to John A. Pannebaker.

At the residence in which Pannebaker was residing, the detectives observed a small, silver car which was parked in a detached carport. Both the car and house descriptions were as the informant had earlier related.

Detectives Martinez and Subia, through further investigation, found that John A. Pannebaker had a N.C.I.C. operator's license number listing under John Andrew Pannebaker at the address where Pannebaker was residing. The license stated that Pannebaker was a male, six-feet tall 155 pounds, blond hair, blue eyes. This description matched the one provided by the informant. The officers further discovered that Pannebaker had a criminal history stemming from arrests for possession and distribution of marihuana in 1972 and 1974.

Boulder authorities did not execute the search warrants immediately upon receipt. The Boulder district attorney questioned the time period of "recent past." As a result of this concern, Boulder Detective Hall prepared a second affidavit. In it, he stated that he contacted Detective Subia, who relayed that, without jeopardizing the safety of the confidential informant, information was available to show that the informant had been in the house within the last thirty days.

Detective Hall then presented his affidavit, incorporating the Denver warrants and Detective Subia's affidavit, to Boulder County Judge Torke on November 21, 1984. The Hall affidavit contained additional information of further independent corroborative observations and research.

Detective Carolyn Roberts of the Boulder County Sheriff's Department checked the Boulder County Assessor's records for residences owned by John A. Pannebaker. The records on file showed John Pannebaker to be the owner of both residences in question.

Detective Hall also included in his affidavit information relayed by the informant through Detective Subia that a large portion of the first house, as well as the attached portion of the second house, was being utilized for this growing process. Further, the marihuana being grown was not for personal use, but rather for sale in the Denver and Boulder metropolitan area. The Hall affidavit also stated that the confidential informant provided Detective Subia with a great deal of additional information, which would not be disclosed in the affidavit for fear of identifying the confidential informant.

Based on Detective Hall's affidavit, the Denver warrants, and Detective Subia's affidavit, Judge Torke issued warrants to search both houses of the defendant. The officers immediately executed the warrants and found a marihuana growing operation inside both residences. At the house that Pannebaker was alleged to have rented, officers discovered 88 mature marihuana plants, $5,000 in cash, grow lights, fertilizer, pumps, plastic bags, a scale, a file cabinet "literally filled" with literature describing indoor marihuana growing methods, and bags of marihuana. At the residence of John Pannebaker, officers found 260 marihuana plants and seedlings "fed from ... automatically controlled timers that controlled ventilation, light, and the nutrition flow." Officers also found a dismantled "genesis root system."

The district court suppressed all evidence seized from both of the defendant's houses. It concluded that the assertion in Detective Subia's affidavit as to "recent past" was too vague to permit a magistrate to conclude that there was probable cause to believe the house contained marihuana. The court further concluded that the sentence in the Hall affidavit that the confidential informant "had been in the residence of Mr. Pannebaker within the last month, and saw the marihuana growning [sic]," failed to establish the affiant's basis of knowledge for that assertion. The court held that both affidavits failed the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as well as the "totality of the circumstances" analysis mandated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Moreover, the court concluded that the affidavits and search warrants did not meet the "good faith" exception to the exclusionary rule stated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), or in People v. Deitchman, 695 P.2d 1146 (Colo.1985). The basis of the court's conclusion was that, while the officers properly chose to protect the informant, the method that they chose was to limit what they told the magistrate. Such an intentional omission, in the court's view, removed the case from the good faith exception. Because we hold that the Hall affidavit, coupled with the previously issued warrants based upon the Subia affidavit, was sufficient for a finding of probable cause by Judge Torke to issue warrants to search both houses, we reverse the district court ruling on the issue of probable cause, and we, therefore, make no conclusion as to the applicability of the good faith exceptions.

II.

The issue before us is whether the Hall affidavit, which incorporated the Subia affidavit, contained sufficient information within its four corners to establish probable cause for the issuance of a warrant under the fourth amendment to the United States Constitution and under Art. II, Sec. 7, of the Colorado Constitution. Both constitutions provide that no warrant shall issue without probable cause. See also section 16-3-303, 8 C.R.S. (1978); Crim.P. 41. The rigid "two-pronged test" under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 783 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for determining whether an informant's tip establishes probable cause for issuance of a warrant was abandoned in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and the "totality of the circumstances" approach that traditionally has informed probable-cause determinations was substituted in its place. The elements under the "two-pronged test" considering the informant's "veracity," "reliability," and "basis of knowledge," according to Gates, should be understood simply as closely intertwined issues that may usually illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. Accordingly, the task of the issuing magistrate is simply to make a practical, common-sense...