People v. Peschong

• Decision Date: 26 February 1973
• Docket Number: No. 25552,25552
• Citation: 181 Colo. 29,506 P.2d 1232
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gene Daniel PESCHONG, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1232

506 P.2d 1232

181 Colo. 29

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gene Daniel PESCHONG, Defendant-Appellant.

No. 25552.

Supreme Court of Colorado, En Banc.

Feb. 26, 1973.

As Modified on Denial of Rehearing March 19, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

GROVES, Justice.

This is an appeal by the defendant from a conviction of a charge of possession of marijuana. Prior to trial, the defendant moved to suppress certain evidence (marijuana in various forms) obtained from his residence during the execution of a search warrant. The motion was denied by the court and the evidence was admitted at trial. The defendant has maintained that the affidavit in support of the search warrant failed to establish probable cause. The Attorney General, admitting that the affidavit is fatally defective, has confessed error. We agree.

Under the decisions of the United States Supreme Court, some of which are hereinafter cited, we have no alternative but to declare the affidavit fatally defective and reverse the judgment of the trial court.

The contents of the affidavit are as follows:

'1. That I am an officer of the Grand Junction, Colorado, police department;

'2. That a known reliable informant has advised the undersigned that said informant has personally seen cannabis and other dangerous drugs at the residence of Gene Peschong located at 437 N. 18th St. Grand Junction, Colorado;

'3. That said informant saw such contraband on several occasions during the past week, and such contraband is the property of said Gene Peschong including a live and growing cannabis plants; (sic)

'4. That I have known said informant for approximately 2 years, and said informant has given reliable information on at least 3 prior occasions;

'5. That said Gene Peschong is a well known dealer in narcotic and dangerous drugs and said Gene Peschong has on at least one past occasion offered to sell illegal drugs to the undersigned;

'6. That the possession of cannabis and dangerous drugs is illegal and such would be material evidence in the event of a subsequent criminal prosecution;

'7. That there is probable cause to believe that such cannabis and dangerous drugs are presently located at the residence situate at 437 N. 18th St., Grand Junction, Colorado.'

The 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). Under the Aguilar-Spinelli test the affidavit must: (1) allege facts from which the issuing magistrate could independently determine whether there were reasonable grounds to believe that illegal activity was being carried on in the place to be searched; and (2) set forth sufficient facts to allow the magistrate to determine independently if the informer is credible or the information reliable. People v. Clark, 175 Colo. 446, 488 P.2d 565 (1971); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971), and People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971). See DeLaCruz v. People, Colo. 492 P.2d 627 (1972).

The affidavit in question states that the informant personally saw 'cannabis and other dangerous drugs' at the residence of the defendant. This is sufficient to meet the first prong of the Aguilar-Spinelli test. People v. Clark, Supra, and People v. MacDonald, Supra.

The question raised here is whether the affidavit contained sufficient facts to satisfy the second prong of the test, I.e., whether there was sufficient information in the affidavit to allow The magistrate to determine whether the informant was credible or his information reliable. The policy behind the requirement that an affidavit contain the underlying facts from which the police officer concluded that the informant was credible or his information reliable was stated in Aguilar v. Texas, Supra:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' . . . or, as in this case, by an unidentified informant.' (Citations omitted.)

The situation here is simply that the affidavit did not state detailed facts from which a magistrate could make an independent determination of the informant's reliability. Indeed, this affidavit in some part contains only the conclusions of the police officer--conclusions which are solely for the magistrate. In effect, the police officer took unto himself the role of magistrate. Had the police officer given detailed facts upon which he based his conclusions, the affidavit might well have been sufficient.

In analyzing this affidavit, it is obvious that paragraphs numbered 1, 6 and 7 have no relation to the reliability of the informant. Paragraph 2 related that the informant had seen cannabis and other dangerous drugs at the defendant's residence. So far as we are presently advised, this court has not held that a magistrate's finding of reliability may be based solely on detailed facts of the observations of the informant at the place to be searched. Assuming Arguendo that some day we may go that far, we cannot do so here because the statement in the affidavit advising the officer of what the informant had seen at the defendant's residence is most general.

In the hope that it will be of assistance to law enforcement officers, we include in our discussion of the affidavit several suggestions as to what information might have been included in the affidavit. Needless to say, the suggestions are not comprehensive nor is the inclusion of each...