People v. Quintana

• Citation: 785 P.2d 934
• Decision Date: 12 February 1990
• Docket Number: No. 89SA250,89SA250
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Billy QUINTANA and Dawnette Teresa Quintana, Defendants-Appellees.
• Court: Supreme Court of Colorado

Page 934

785 P.2d 934

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Billy QUINTANA and Dawnette Teresa Quintana, Defendants-Appellees.

No. 89SA250.

Supreme Court of Colorado,

En Banc.

Feb. 12, 1990.

G.F. Sandstrom, Dist. Atty., James S. Whitmire, Asst. Dist. Atty., and David K. Gardner, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

Law Offices of J.E. Losavio, Jr., Doyle T. Johns, Jr., Pueblo, for defendants-appellees.

Chief Justice QUINN delivered the Opinion of the Court.

In this interlocutory appeal, ¹ the People challenge the district court's suppression of marihuana plants, drug paraphernalia, and numerous items of evidence seized during a search pursuant to a warrant. The district court ruled that the affidavit supporting the search warrant was not sufficient to establish probable cause for the search. We reverse the suppression ruling.

I.

The defendants, Billy Quintana and Dawnette Quintana, are charged in the District Court of Pueblo County with possession of eight ounces or more of marihuana, cultivation of marihuana, and conspiracy to cultivate marihuana. The charges stem directly from evidence seized in the course of a search of the defendants' residence and detached garage at 321 Lucille, Avondale, Colorado, on November 11, 1988.

On November 10, 1988, Detective Richard Lancendorfer, who was assigned to the narcotics bureau of the Pueblo Police Department, filed with the Pueblo County Court an affidavit in support of a search warrant, along with numerous attached documents relating to the premises to be searched. The affidavit requested the judge to issue a warrant to search a single family dwelling and a detached garage at 321 Lucille, Avondale, Colorado, for marihuana, implements and other paraphernalia used in the manufacture and production of marihuana, and articles of personal property establishing the identity of persons in control of the premises. The affidavit recited the following facts.

On November 4, 1988, Lancendorfer received a phone call from the anonymous caller, who told the detective that Billy Quintana and his wife, Dawn Quintana, were growing marihuana in a separate room on the south side of a detached garage that was located behind the Quintana home at 321 Lucille in Avondale, Colorado. The caller stated that the Quintanas were using artificial electric "grow-lights" as a means of supplying light to the marihuana plants and also were irrigating the plants with automatic irrigation through the use of a timer. The informant also told the detective that Billy Quintana had begun to harvest the plants and to sell the marihuana.

After receiving the telephone call, Lancendorfer went to the Pueblo County tax assessor's office on November 8, 1988, and learned that the residence at 321 Lucille was approximately 698 square feet with a detached shed and was owned by a couple residing in Lubbock, Texas. Based on his previous training and experience, Lancendorfer was aware that growing marihuana in an enclosed and covered area, such as a garage or shed, required artificial lighting as well as adequate irrigation. The affidavit recited that the most common sources of artificial lighting for marihuana cultivation are high wattage sodium and metal halide lights which are positioned above the plants, are normally regulated by a timing device in order to produce a uniform product, and result in substantial increases in electrical usage.

Lancendorfer's investigation of marihuana cultivation was reported to the Pueblo Statutory Grand Jury, and a grand jury subpoena duces tecum was served on Centel Electric Company for "any and all records pertaining to customer identification and [electric] usage amounts" for the residence at 321 Lucille. ² The electric utility records were attached to the affidavit. The summarized contents of the records were as follows: the electric service at the residence was in the name of Dawn Quintana from November 5, 1987 through November 1988; the average electric usage per month from November 5, 1987 through August 5, 1988 was 622 kilowatt-hours; from August 5 to September 7, 1988, the electric usage rose to 1,675 kilowatt-hours; from September 7 to October 5, 1988, the electric usage was 1,333 kilowatt-hours; and from October 5 to November 3, 1988, the usage was 1,011 kilowatt-hours. A supervisor at Centel Electric Company informed Lancendorfer that the average electric usage for a residence the size of 321 Lucille, assuming a family of four, would be between 400 and 600 kilowatt-hours. A Centel Electric Company employee also informed Lancendorfer that no "customer initiated investigation" had been filed regarding the increased electric usage at 321 Lucille. Lancendorfer's affidavit further stated that on three separate occasions from May 1987 to May 1988 he executed three search warrants for various residences in Pueblo and that in each instance marihuana was cultivated inside the residences by artificial lighting with halide lights. This artificial lighting, as shown in the electric utility records for two of the residences, consumed an abnormally high amount of electricity.

The affidavit further described how Lancendorfer, after receiving the anonymous telephone call, drove to the residence at 321 Lucille, observed a detached garage, with locked doors, located behind and to the north of the residence and saw an unidentified male working on a blue Ford pickup truck that was parked in front of the residence. Lancendorfer determined that the license plate on the pickup was registered to Billy Quintana of 321 Lucille, Avondale, Colorado.

The county judge issued a search warrant on November 10, 1988. Detective Lancendorfer and other Pueblo police officers executed the search warrant on the same day and seized marihuana plants, electric lighting equipment, an electric heater, an electric timer and transformer, assorted marihuana cultivation paraphernalia, and several documents relating to the Quintanas' interest in the premises. The defendants moved to suppress the evidence seized on the grounds that the affidavit supporting the search warrant was insufficient on its face to support a finding of probable cause.

After hearing legal arguments on the sufficiency of the affidavit, the district court suppressed the evidence. Relying principally on the "totality of circumstances" test adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the court ruled in pertinent part as follows:

Considering the totality of the circumstances and the requirement that doubts be resolved in favor of the issuing Judge's determination that the affidavit was sufficient, this Court nevertheless concludes that the affidavit was not sufficient to support probable cause to believe that contraband would be found at 321 Lucille, Avondale, Colorado. The source of the anonymous caller's information is unknown, and when he obtained the information is unknown. However, the information would not appear to be stale, because electricity usage remained high at least until November 3, 1988, one week before the search warrant was issued. The affidavit is deficient in the amount of detail provided by the anonymous caller, which was corroborated by independent investigation by the affiant-police officer, especially when compared to the amount of information supplied in the Pannebaker case [People v. Pannebaker, 714 P.2d 904 (Colo.1986) ]. Lastly, unlike the Varrieur case, [People v. Varrieur, 771 P.2d 895 (Colo.1989) ], this anonymous caller had supplied no prior information, which had been confirmed as reliable.

II.

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution prohibits the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched or the objects to be seized. The probable-cause standard seeks not only "to safeguard citizens from rash and unreasonable interference with privacy," but also attempts "to give fair leeway for enforcing the law in the community's protection." People v. Hearty, 644 P.2d 302, 309 (Colo.1982) (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. Hearty, 644 P.2d at 309-10.

For some time this court followed the two-pronged test developed by the United States Supreme Court in 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), in determining whether an affidavit based on information provided by an anonymous informant established probable cause for the issuance of a search warrant. E.g., People v. Conwell, 649 P.2d 1099 (Colo.1982); People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971). The two-pronged test of Aguilar- Spinelli required a court to resolve the issue of probable cause by answering the following two questions: first, whether the affidavit contained sufficient facts from which the judge could determine independently whether the informant had an adequate basis in knowledge for his allegation that evidence of criminal activity will be found at the place to be searched; and second, whether the affidavit contained sufficient information to enable the judge to determine whether the informant is credible or his information is reliable. Spinelli, 393 U.S. at 412-13, 89 S.Ct. at 586-87; Aguilar, 378 U.S. at 114-15, 84 S.Ct. at 1514; People v. Dailey, 639 P.2d 1068, 1072 (Colo.1982).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court...