People v. Stoppel

• Decision Date: 07 December 1981
• Docket Number: No. 81SA248,81SA248
• Citation: 637 P.2d 384
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jay STOPPEL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 384

637 P.2d 384

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jay STOPPEL, Defendant-Appellee.

No. 81SA248.

Supreme Court of Colorado, En Banc.

Dec. 7, 1981.

Alexander M. Hunter, Dist. Atty., Twentieth Judicial Dist., Peter Michael Maguire, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Gehler & Cohen, Patrick D. Williams, Commerce City, for defendant-appellee.

ERICKSON, Justice.

This is an interlocutory appeal by the prosecution from a ruling of the trial court which granted defendant's motion to suppress certain items of evidence relating to a bombing incident. We reverse the ruling of the trial court which suppressed evidence seized in the search of the defendant's residence, and remand for further proceedings consistent with this opinion.

The evidence at the suppression hearing established the following sequence of events. On October 24, 1980, the Longmont Police Department received a report of an incident wherein the defendant, Jay Alan Stoppel, harassed Mary Ann Glaser and Michael Holland. During the subsequent police investigation, Holland reported that he had participated with Stoppel in the bombing of a Longmont residence on June 19, 1980. Holland described the construction and placement of the bomb in detail, and his description was later corroborated by the reports of the police investigation of the bombing. Holland also reported that he, Stoppel, and Brad Weber had detonated the same type of explosive device on an abandoned vehicle on April 12, 1980. The details of the vehicle bombing were also corroborated by the police reports of that incident, and by a subsequent police interview of Weber. In addition, Glaser reported to the police that, within the previous several months, she had observed Stoppel, Holland, and Weber making explosive devices.

Both Holland and Weber agreed to assist the police, as informants, in their investigation of Stoppel's bombing activities. At the request of the police, Holland and Weber visited the defendant and observed marijuana plants, marijuana fray, and drug paraphernalia at his residence. After leaving the defendant's residence, Holland and Weber were each questioned separately by the police. On the basis of their observations and conversation with Stoppel during the visit, ¹ the Longmont Police Department prepared an affidavit for a search warrant. Thereafter, the Boulder District Court issued a warrant to search Stoppel's residence for marijuana and other drug-related items. At that time, the court also issued a warrant for Stoppel's arrest for felony menacing, ² felony criminal mischief, ³ first degree arson, ⁴ and two counts of possession and use of explosives or incendiary devices. ⁵ The arrest warrant and accompanying affidavit did not contain any drug-related charges or allegations.

During the execution of the arrest and search warrants on October 28, 1980, police officers recovered several marijuana plants, marijuana fray, and various items of drug paraphernalia from Stoppel's residence. While conducting the search for drugs, the police also discovered evidence relating to bombing activities, including safety fuses, ignitor squibs, and two handbooks pertaining to the manufacture of explosive devices. At first, the officers did not seize the bombing-related items, but secured the residence after arresting Stoppel and seizing the drug-related items. Later the same day, the police obtained a second search warrant, and returned to Stoppel's residence to seize the evidence relating to the bombing incidents.

Thereafter, the prosecution filed an information charging Stoppel with felony criminal mischief, first degree arson, and one count of unlawful possession and use of explosives or incendiary devices. ⁶ No charges were filed against Stoppel for menacing, harassment, or drug-related activities. Stoppel entered pleas of not guilty to all charges and, after probable cause was found at a preliminary hearing, the matter was set for trial.

The defendant filed a Motion to Suppress, which alleged that the affidavit for the first search warrant failed to present sufficient evidence regarding the reliability or identification of the source of the information to establish probable cause that the drug-related items described were located in his residence. Further, the defendant alleged that the first search warrant was a sham requested solely for the purpose of obtaining entry into his residence to gather evidence of the bombing activities. The trial court found in favor of the defendant on both issues and suppressed all evidence seized at the search of the defendant's residence on October 28, 1980.

The prosecution filed an interlocutory appeal, urging: (1) that the affidavit for the first search warrant was supported by sufficient information to establish the reliability of the information or the credibility of the informants; and (2) that the search of the Stoppel residence was not a subterfuge designed to allow the police to enter and search for incendiary devices. We agree and, for the reasons set forth in this opinion, we reverse the trial court.

I.

We first address the issue of the sufficiency of the affidavit for the first search warrant. In our view, the affidavit provided sufficient information to determine the credibility of the informants. Accordingly, we hold that the affidavit was sufficient to support a finding of probable cause for the issuance of the first search warrant and that the initial search for drugs was valid.

An affidavit based upon information derived from an informant must satisfy a two-prong test to establish probable cause for the issuance of a search warrant. First, the affidavit must allege facts from which the issuing judge can independently determine whether there are reasonable grounds to believe that illegal activity is being carried on in the place to be searched. Second, it must set forth sufficient facts to allow the judge to determine if the informant is credible or the information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also, People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973); People v. Baird, 182 Colo. 284, 512 P.2d 629 (1973); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971). See generally 1 W. LaFave, Search and Seizure § 3.3 (1978).

Information provided as a result of personal observations of an informant is sufficient to satisfy the first requirement, or the "basis of knowledge" test. See People v. Clark, 175 Colo. 446, 488 P.2d 565 (1971); People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971). See also People v. Harris, 182 Colo. 75, 510 P.2d 1374 (1973). The record in this case clearly indicates that Holland and Weber both told the police they personally observed Stoppel growing and using marijuana in his home at a specific and recent time. Accordingly, we conclude that the first prong of the Aguilar-Spinelli test was satisfied by the allegations in the affidavit that the informants had witnessed Stoppel's criminal activity. See People v. Montoya, 189 Colo. 106, 538 P.2d 1332 (1975); People v. Montoya, Colo.App., 616 P.2d 156 (1980); People v. MacDonald, supra.

The second prong of the Aguilar-Spinelli test requires that the affidavit for the search warrant establish the credibility of the informant or the reliability of the information. One method of demonstrating informant credibility is by the use of collateral corroboration of information. See People v. Clark, supra; People v. MacDonald, supra. In this case, each informant independently corroborated the information that the other gave to the police. Although both Holland and Weber observed marijuana plants in the defendant's bedroom, and marijuana fray and drug paraphernalia in the living room, each gave detailed, independent accounts to the police regarding the location and nature of the drug-related items in Stoppel's residence. ⁷ In addition, the information of both informants was corroborated by collateral information in the subsequent police investigation of Stoppel's drug-related activities. The conversation taped by Holland during the visit he and Weber made to Stoppel's residence revealed that Stoppel discussed the possibility of removing the marijuana plants from his residence because of his concern that Glaser might call the police. Such information was independent of that provided by Holland's and Weber's personal observations. Consequently, we conclude that the affidavit provided sufficient information to determine the credibility of the informants through independent corroboration.

Declarations against the penal interests of informants may also establish informant credibility in an affidavit for a search warrant. Even if the informants were granted freedom from prosecution for their assistance to the police, the admissions of crime carry their own indicia of credibility sufficient to support a finding of probable cause to search:

"Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility ... sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct." United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

See also People v. Trontell, 188 Colo. 253, 533 P.2d 1124 (1975); DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972). In this case, both Weber and Holland made declarations against their penal interests which were included in the affidavit for the issuance of the first search warrant. Weber told the police that he had smoked two "bongs" of marijuana during his visit to the Stoppel residence with Holland. Holland reported to the police his participation with Stoppel in the manufacture of explosive devices, the destruction of the abandoned vehicle, and the...