People v. Salazar, 83CA1066

Decision Date12 September 1985
Docket NumberNo. 83CA1066,83CA1066
Citation715 P.2d 1265
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joe R. SALAZAR, Defendant-Appellant. . II
CourtColorado Court of Appeals

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores S. Atencio, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Cecil L. Turner, Ted J. Malouff, Pueblo, for defendant-appellant.

KELLY, Judge.

Defendant appeals from a judgment of conviction on four counts of theft by receiving while engaged in the business of buying, selling, or otherwise disposing of stolen goods for profit, one count of possession with intent to distribute marijuana, one count of conspiracy to commit either of the aforementioned offenses, and one count of possession of a defaced firearm. We affirm.

I.

Defendant contends that virtually all of the evidence seized during a search of his house, including rifles, pistols, and packages of marijuana, should have been suppressed. He argues that the affidavit in support of the warrant did not establish probable cause, failed to state the place to be searched, was based on stale information, and that the police conducted an "exploratory" search.

The warrant for the search of defendant's home arose from information provided to the police by defendant's alleged co-conspirator, Sammy Silva, a person named Farris Bervig, and two others. In pertinent part, the warrant states that on January 19, 1983, Bervig told police that a Remington 870 shotgun, a Marlin .22 caliber rifle, a Remington BDL 30-06 rifle, and a Tasco 4-power scope had been stolen from an Alamosa hardware store.

On the same date, Silva told police that the guns and scope were stolen by a Kenneth Vigil, and that during the "first week in January" Silva and two others took the goods to defendant's residence, a "two-story house with a porch." The weapons were taken to defendant because a "Jimbo" DeLuna told Silva that defendant would trade illegal drugs for guns. Silva indicated that he traded the stolen items to defendant for marijuana and hashish.

The warrant further stated that on January 18 and 19, two persons, identified in the warrant, told the police that they overheard Silva discussing taking the guns to Walsenburg. One of the persons heard Silva say he traded for "grass," and this person had previously given reliable information resulting in the seizure of stolen property.

Additionally, the warrant stated that defendant owned three residential properties on West First Street in Walsenburg. Attached to the warrant were documents from the Huerfano County Clerk's office showing that the properties are on adjacent lots, and that the addresses are 203, 205, and 215 West First Street. There are pictures of the 205 and 215 structures. Both could be described as having two stories with a porch, but 205 most clearly meets this description. The property description of 203 indicates that the house is "in poor shape non-livable."

Finally, the warrant states that the Chief of the Walsenburg police verified Silva's "instructions" concerning the location of defendant's residence. Another officer "familiar" with defendant's "premises" stated there were five buildings "which can be used for storage and should be searched."

A.

Defendant argues that the affidavit failed to establish probable cause to believe that the guns and scope were stolen. Defendant notes that, although the affidavit does name Bervig, it does not explain his connection with the case or state the basis of his knowledge. With respect to Silva, defendant argues there is no basis for his knowledge that Vigil stole the weapons, and no demonstration that Silva is reliable.

In resolving this issue, we apply the long-standing rule that probable cause must be shown within the "four corners" of the affidavit. People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976). The affidavit is to be "read in a common sense and realistic fashion." People v. Hearty, 644 P.2d 302 (Colo.1982).

Applying these rules we conclude that there was probable cause to believe that the guns and scope were stolen. With respect to Bervig, a common sense reading of the affidavit is that Bervig was a "citizen informant" familiar with the items missing from the hardware store. People v. Williams, 42 Colo.App. 58, 595 P.2d 692 (1979). Therefore, his information was reliable and credible.

With respect to Silva, we apply the "totality of the circumstances" test announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See People v. Sullivan, 680 P.2d 851 (Colo.App.1984); People v. Gallegos, 680 P.2d 1294 (Colo.App.1983). Here, Bervig's statement corroborating Silva's information, and police confirmation of Silva's directions to defendant's house indicate the existence of a basis for Silva's "statements." People v. Sullivan, supra. Furthermore, Silva's admission of criminal involvement, both to the police and others, is indicative of his reliability. People v. Stoppel, 637 P.2d 384 (Colo.1981).

B.

Defendant next contends that the affidavit is defective because it failed to establish what property was to be searched. See People v. Arnold, 181 Colo. 432, 509 P.2d 1248 (1973). Defendant argues that Silva's failure to provide the police with defendant's address, and the failure to recite the instructions which were confirmed by the police, vitiates the warrant.

Applying the test of "reasonableness," we conclude the affidavit demonstrates reasonable grounds to believe the stolen goods would be found on defendant's property. People v. Hearty, supra. The police independently established that Silva knew how to reach defendant's property, and provided documentation showing that the property in fact belonged to defendant.

C.

Defendant next argues that the information contained in the affidavit was stale. He notes that Silva claimed to be at defendant's house the "first week in January" and the warrant was not obtained and executed until January 20.

The first information connecting the defendant to the crime was obtained on January 19, 1983, when Silva gave his statement to the police. Inasmuch as only one day had elapsed between the acquisition of probable cause and execution of the warrant, and less than three weeks between the alleged crime and the execution, the information was not stale. People v. Tafoya, 703 P.2d 663 (Colo.App.1985); People v. Thrower, 670 P.2d 1251 (Colo.App.1983).

D.

Defendant next contends that the warrant authorized an "exploratory" search because there was probable cause to search only the house where the transaction occurred, not three houses. See People v. Arnold, supra. We reject this argument because the affidavit established that all three residences were under defendant's control, and were situated on contiguous pieces of property. The law of probable cause does not require a "mathematical probability" that evidence will be located in a particular location, only a "reasonable" probability. People v. Hearty, supra. Under the circumstances, the test was met.

E.

Defendant also argues that even if the warrant was valid, the officers executed it in an illegal manner. Specifically, he contends that the police seized property which was not named in the warrant nor reasonably connected to any known offense.

The evidence indicates that of the three weapons and one scope listed in the warrant, only a scope matching the warrant description was found. However, in the course of the search the officers seized some 13 guns, a battery charger, some stereo equipment, a crossbow, a cutting torch, a large quantity of suspected drugs, and drug paraphernalia.

It is conceded that during the search the officers had no knowledge connecting much of the property with any offense. However, officers did identify one rifle and the battery charger as being stolen. Further, six of the rifles were found lying on a bed under a blanket.

The record also indicates that as the items were seized they were "stockpiled" in the dining room. After being advised of his Miranda rights defendant was asked if any of the items belonged to him personally, and he replied, "It looked like you did pretty good to me."

In order to seize evidence discovered in "plain view," but not described in the warrant, there must be a "nexus" between the evidence and criminal behavior. People v. Franklin, 640 P.2d 226 (Colo.1982). Factors relevant to this determination are whether the items seized are similar to items described in the warrant, whether the quantity and placement of the property renders it unlikely that the property is on the premises for ordinary use, and whether persons on the scene can offer information concerning the property. People v. Franklin, supra.

We agree with the trial court that application of these standards demonstrates a "nexus" between the property and criminal behavior. The weapons seized were similar to items described in the warrant, some of the items were known to be stolen, and the amount and location of the items were suspicious. These factors, in conjunction with defendant's statements, were sufficient to justify the police conduct in this case.

F.

Because we hold that the search and seizure was lawful, we need not address the argument that defendant's incriminating statements were the product of an unlawful search.

II.

Defendant next contends that the trial court erroneously instructed the jury in accordance with § 18-4-411, C.R.S. (1984 Cum.Supp.). He argues that because no single count of the information charges possession of "three or more separate things of value," the statute was inapplicable. We disagree.

Section 18-4-411 provides that:

"If any person commits theft by receiving as defined in section 18-4-410(1), when such offense involves three or more separate things of value each of which is the property of a separate owner, such commission of theft...

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