People v. Siegl

• Decision Date: 08 February 1996
• Docket Number: No. 93CA1600,93CA1600
• Citation: 914 P.2d 511
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert A. SIEGL, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 511

914 P.2d 511

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert A. SIEGL, Defendant-Appellant.

No. 93CA1600.

Colorado Court of Appeals Div. II.

Feb. 8, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Eric V. Field, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Michael J. McCarthy, Hotchkiss, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Robert A. Siegl, appeals his multiple convictions for possession and cultivation of controlled substances. We affirm.

On October 7, 1991, the Undersheriff for Delta County, Colorado, received a Crime Stoppers report from an anonymous female caller identifying the defendant as the owner of a house near Hotchkiss, Colorado. Co-defendant was a tenant. The informant told the Undersheriff that: (1) she had been in the house; (2) she had seen large overhead lights on the second floor; (3) she had been told by the tenant that the tenant and defendant grew marijuana in the house; and (4) she could smell a strong odor of marijuana in the house. The informant also described the exterior of the house in detail, including the unusual fact that the upstairs windows were covered with tin foil.

For three days after the informant's call, the Undersheriff and a detective for the Delta County Sheriff's Department observed the house. They verified the informant's description of the house and obtained its electric bills for the preceding fifteen months, noting a sudden and substantial increase in electric use during the most recent summer months. They also did a computer check of vehicles registered to the defendant and saw that they were kept at the house in question.

With this information, the detective obtained a search warrant for the house to search for and seize any material evidence which might aid in a prosecution of the defendant for the sale or cultivation of a controlled substance.

Upon execution of the search warrant on August 13, 1991, the Sheriff's department found large quantities of live marijuana plants, psilocybin, mushrooms, Peyote, drug paraphernalia, and numerous instruction books on the cultivation of marijuana. The inside of the house proved to have been accurately described by the informant. Defendant was later arrested and charged with possession and cultivation of controlled substances.

Defendant and his tenant filed pre-trial motions accompanied by affidavits challenging the credibility, reliability, and veracity of the anonymous informant. Defendant requested a veracity hearing to challenge the validity of the search warrant and a court order requiring the prosecution to disclose the informant's identity.

Defendant's affidavits alleged that: (1) he and his tenant had never told anyone that they grew marijuana at the house in question or at any other location; (2) they had never allowed anyone into the house for the several months preceding the date of the execution of the search warrant; and (3) they had never given permission to anyone to enter the house. Defendant therefore insisted that the anonymous informant's statements to the contrary, which were used in the affidavit of probable cause, must necessarily have been false.

After receiving briefs on defendant's motions, conducting an in-camera hearing with the Undersheriff regarding the informant, and hearing arguments by counsel, the trial court supplied defendant with a partially excised note taken by the Undersheriff during the informant's call. However, the trial court denied defendant's motion for a veracity hearing and his motion to disclose the identity of the anonymous informant.

Just before trial, the Undersheriff received another call from the informant who then revealed her first name. The Undersheriff did not fully identify the informant or obtain her presence before the trial court.

Defendant then filed additional motions to require the prosecution to disclose the informant's identity or, in the alternative, to require the prosecution to disclose all portions of the Undersheriff's notes taken during the informant's calls so that the defendant could identify and locate the informant. The trial court conducted a second in-camera hearing, denied defendant's motions, and ordered certain records, notes, and exhibits sealed in the court record. Defendant was convicted of multiple offenses involving possession and cultivation of a controlled substance.

I.

Defendant contends that the trial court erred in refusing to require the prosecution either to produce the informant for a veracity hearing or, at least, to disclose the identity of the alleged anonymous informant to help him prepare his defense. We disagree with both contentions.

A.

Defendant first contends that the trial court erred in refusing to grant a hearing to challenge the veracity of the informant and the validity of the search warrant.

Initially, we address and reject the People's contention that only the veracity of the officer-affiant, and not that of the informant, can be attacked in a veracity hearing. The same contention has been rejected by the supreme court. People v. Flores, 766 P.2d 114, (Colo.1988)(fn.8); People v. Nunez, 658 P.2d 879 (Colo.), cert. granted, 464 U.S. 812, 104 S.Ct. 65, 78 L.Ed.2d 80, cert. dismissed, 465 U.S. 324, 104 S.Ct. 1257, 79 L.Ed.2d 338 (1984).

The applicable standard for determining whether an informant's statements established probable cause for a search warrant is the "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); People v. Pannebaker, 714 P.2d 904 (Colo.1986).

In Gates, the Supreme Court rejected the then-existing so-called Aguillar/ Spinelli test which required a strict showing of both the basis of the informant's knowledge and his or her reliability largely because of its difficulty in analyzing tips from anonymous informants. Strict application of the veracity prong prohibited a finding of probable cause absent knowledge of an informant's reliability. And, since anonymous or first-time informants cannot be considered reliable, their information was often deemed worthless for purposes of determining probable cause.

The Gates court held that sufficient corroboration of an anonymous informant's tip could substitute for an informant's unknown reliability in establishing probable cause by the common sense totality of the circumstances approach. Illinois v. Gates, supra; People v. Pannebaker, supra.

Using the Gates analysis, in Pannebaker, our supreme court applied the totality of the circumstances test in a factual situation similar to the instant case. There, police received a tip from a first-time, confidential informant that Pannebaker was growing marijuana in his home. In addition to detailed descriptions of the operation and the property, the informant mentioned that the upstairs windows of the house were covered by black plastic for climate control and privacy.

Because the informant had no track record, the police could not allege in their affidavit that he or she was reliable. However, there, as here, the police independently investigated the tip to corroborate its details and found: (1) the house was just as the informant had described it, including the unusual window coverings; and (2) the owner had a previous record of marijuana arrests. The supreme court concluded that, when this corroboration was included in the totality of the circumstances, it established probable cause for a search warrant. People v. Pannebaker, supra.

In this case, the information was received through the Crime Stoppers telephone line which offers members of the public the opportunity anonymously to provide information to the police about criminal activity. Callers on the Crime Stoppers telephone line are assigned a number which guarantees anonymity and is the only means of identification unless the callers elect to identify themselves.

Here, as in Pannebaker, the Undersheriff did not claim that the anonymous Crime Stoppers caller was reliable. Rather, he undertook an independent investigation and corroborated the details given to him by the caller including: (1) ownership of the house, its occupants, and their vehicles; (2) unusual use of tin foil to cover the upstairs windows; and (3) unusual electric usage. Thus, by corroborating a tip of unknown veracity, the Undersheriff established probable cause. See People v. Pannebaker, supra.

We thus conclude that defendant's request for a veracity hearing was misplaced. Although such a request might have been justified if the police had asserted the veracity and credibility of the anonymous informant, here, the affiant made no such claim. Rather, the totality of circumstances was based upon the fact of the call, combined with the independent corroboration by the Undersheriff.

We also note that, in the one published opinion we have found involving a Crime Stoppers program, the court held that the police did not have a duty to determine and disclose to defendant the identity of the informant. The court reasoned:

Such an investigatory burden would not only be onerous and frequently futile, it would destroy programs such as...