People v. Pate

• Decision Date: 11 July 1994
• Docket Number: No. 93SA155,93SA155
• Citation: 878 P.2d 685
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant/Cross-Appellee, v. Donald Hugh PATE, Defendant-Appellee/Cross-Appellant.
• Court: Colorado Supreme Court

Page 685

878 P.2d 685

The PEOPLE of the State of Colorado Plaintiff-Appellant/Cross-Appellee, v. Donald Hugh PATE, Defendant-Appellee/Cross-Appellant.

No. 93SA155.

Supreme Court of Colorado En Banc.

July 11, 1994.

Rehearing Denied Aug. 8, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol., Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Paul Koehler, Asst. Atty. Gen., Criminal Enforcement Section, Denver, John W. Suthers, Dist. Atty., Gordon R. Dennison, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant/cross-appellee.

David F. Vela, State Public Defender, Samuel Santistevan, Julie Iskenderian, Deputy State Public Defenders, Denver, for defendant-appellee/cross-appellant.

Justice MULLARKEY delivered the Opinion of the Court.

The People of the State of Colorado appeal the trial court's ruling that section 42-2-123.6, 17 C.R.S. (1993), requiring defendants convicted of certain drug offenses to surrender their drivers licenses to the court for forwarding to the Colorado Department of Revenue, violates the principle of separation of powers found in Article III of the Colorado Constitution. ¹ The defendant also filed a separate notice of appeal with the court of appeals challenging his convictions for possession of marihuana with intent to distribute and possession of between one and eight ounces of marihuana, on the ground that the trial court erred in denying his motion to suppress evidence seized from his residence pursuant to a search warrant. We consolidated the two appeals ² and, for the reasons stated below, reverse the trial court's ruling as to the constitutionality of section 42-2-123.6, affirm the trial court's judgment of conviction, and remand the case to the trial court for further proceedings consistent with this opinion.

I

On May 11, 1992, an anonymous caller (the informant) contacted Officer Thomas A. Lehmann (Officer Lehmann) of the Colorado Springs Police Department to report that an individual by the name of Michael Acosta (Acosta) had been arrested one week earlier on outstanding warrants from New Mexico. The informant specified that the warrants had been for narcotics offenses. She also reported to Officer Lehmann that, according to a friend of hers, whose name she would not divulge, Acosta called his girlfriend, Lola Schafer, to request that she arrange to have marihuana removed from his residence because the police "were on to him." The informant told Officer Lehmann that her friend had overheard a telephone conversation between Schafer and someone named "Donny." Schafer was using the friend's phone at that time. The informant stated that her friend saw Schafer dial the number "260-1716" and speak to a person she believed to be "Donny." During that conversation, the friend heard Schafer arrange for Donny to pick up thirty-three pounds of marihuana from Acosta's residence and store it at Donny's residence. The informant stated that she had not previously met Donny or Schafer and did not know where Donny lived.

In response to this tip, Officer Lehmann called 260-1716 and spoke to a woman who identified herself as "Mrs. Pate" and stated that she lived at 2853 Buttermilk Circle. ³ When Officer Lehmann checked the utilities listing for 2853 Buttermilk Circle, he found that it was registered under the names "Donald H. Pate" and "Anita C. Pate." He then checked the criminal history of a "Donald Hugh Pate" and found a traffic record but no criminal arrests. He also checked the criminal history of a "Michael Anthony Acosta" and found that he had been arrested on May 9, 1992, for active warrants from New Mexico. Those warrants were for the possession of marihuana with the intent to distribute. ⁴ Finally, Officer Lehmann called the El Paso Criminal Justice Center and confirmed that Acosta was incarcerated at that facility.

Based upon the informant's tip and his own efforts to corroborate that information, Officer Lehmann applied for and received a warrant to search the Pate residence at 2853 Buttermilk Circle. ⁵ Officer Lehmann and other police officers then went to the Pate residence and asked for Donald Pate (Pate). He was not home, however, and Officer Lehmann spoke with his wife. Prior to presenting the search warrant, Officer Lehmann told Mrs. Pate that he had information indicating that marihuana could be found in her home and asked for her consent to search the residence. Mrs. Pate apparently agreed and signed a written consent-to-search form. ⁶ Officer Lehmann then presented her with the search warrant and Mrs. Pate told him that the marihuana was stored in the crawlspace of an extra bedroom. The officers found approximately eight ounces of marihuana packaged for street sale at that location.

Soon thereafter, Pate arrived at the residence and was arrested and taken into custody. After waiving his Miranda ⁷ rights, Pate told the police that he had been storing the marihuana for a friend named "Lola" and that he was not a drug dealer. Pate was subsequently charged with possession of between one and eight ounces of marihuana ⁸ and possession of marihuana with the intent to sell and distribute. ⁹

Prior to trial, Pate filed a motion to suppress evidence seized from his residence, claiming that the search warrant was insufficient on its face and that Officer Lehmann's affidavit in support of the search warrant failed to set forth probable cause to believe that contraband was located at Pate's residence. Following a hearing on this issue, the trial court denied the motion, stating that "it is clear to the Court that there is sufficient corroboration to establish that the anonymous caller was reliable and that there is a fair probability that contraband would be found at the residence to be searched."

Pate waived his right to a trial by jury, and, after a trial to the court on March 3, 1993, he was convicted of possession of marihuana with the intent to distribute, a class four felony. The trial court also found that although the prosecution had proved that Pate possessed marihuana with the intent to distribute, it failed to prove beyond a reasonable doubt that the net weight of the marihuana, excluding packaging materials and contaminates, was greater than eight ounces. The trial court therefore convicted Pate of possession of between one and eight ounces of marihuana, a class one misdemeanor.

After a sentencing hearing on April 7, 1993, the trial court sentenced Pate to three years of probation. At that hearing, the prosecution requested that Pate be ordered to surrender his driver's license to the trial court pursuant to section 42-2-123.6. The trial court refused, however, ruling that it was an unconstitutional violation of the separation-of-powers doctrine to compel the court to take a convicted defendant's driver's license for forwarding to the Department of Revenue, because it would cause a judicial officer to become a bailee acting for the benefit of the executive branch. After a hearing on the prosecution's motion for reconsideration, the trial court adhered to its prior ruling that section 42-2-123.6 was unconstitutional.

The prosecution then filed a timely notice of appeal with this court, pursuant to section 16-12-102(1), 8A C.R.S. (1986 & 1993 Supp.), and C.A.R. 4(b)(2). Pate also filed a timely notice of appeal to the court of appeals, challenging the trial court's judgment of conviction. This court granted Pate's motion to consolidate the two appeals.

II

First we will address Pate's argument that the trial court committed reversible error in denying his motion to suppress the marihuana seized at his residence pursuant to the search warrant. Pate claims that Officer Lehmann's affidavit in support of the search warrant did not contain sufficient information to support a finding of probable cause. We disagree.

Probable cause for a search warrant exists when the affidavit in support of the warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or other evidence of criminal activity is located at the place to be searched. People v. Arellano, 791 P.2d 1135, 1137 (Colo.1990); People v. Quintana, 785 P.2d 934, 937 (Colo.1990). Whether an affidavit based on information provided by a confidential informant satisfies the constitutional standard of probable cause must be evaluated on the basis of the totality-of-the-circumstances test formulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (abandoning the two-pronged Aguilar-Spinelli test). People v. Turcotte-Schaeffer, 843 P.2d 658, 660 (Colo.1993); People v. Pannebaker, 714 P.2d 904, 907 (Colo.1986) (adopting the Gates test in construing the Search and Seizure Clause of the Colorado Constitution). The Gates Court emphasized that a judge or magistrate reviewing an application for a search warrant should 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 a fair probability that contraband or evidence of a crime will be found in a particular place." 462 U.S. at 238, 103 S.Ct. at 2332.

Under the totality-of-the-circumstances test, "an informant's account of criminal activities need not establish the informant's basis of knowledge, so long as the informant's statement is sufficiently detailed to allow a judge to reasonably conclude that the informant had access to reliable information about the illegal activities reported to the police." People v. Abeyta, 795 P.2d 1324, 1327-28 (Colo.1990). Moreover, even if an affidavit does not establish the informant's basis of knowledge or the veracity of the reported information, police corroboration of some of the information provided by the informant may be sufficient to support a finding of probable...