People v. Titus

• Citation: 880 P.2d 148
• Decision Date: 12 September 1994
• Docket Number: No. 94SA173,94SA173
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas TITUS, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 148

880 P.2d 148

63 USLW 2259

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas TITUS, Defendant-Appellee.

No. 94SA173.

Supreme Court of Colorado,

En Banc.

Sept. 12, 1994.

John Suthers, Dist. Atty., Fourth Judicial Dist., David J. Young, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Dennis J. Sladek, Colorado Springs, for defendant-appellee.

Justice VOLLACK delivered the Opinion of the Court.

The People bring this interlocutory appeal pursuant to C.A.R. 4.1 to challenge a suppression ruling made in the course of a pending criminal case in which the defendant, Thomas Titus (Titus), was charged with possession of marijuana with intent to distribute or sell ¹ and possession of marijuana. ² The trial court ruled that the affidavit underlying the warrant to search Titus' residence did not establish probable cause, and suppressed the evidence seized during the search. The District Attorney for the Fourth Judicial District, El Paso and Teller Counties, then filed this interlocutory appeal. We affirm the ruling of the trial court suppressing the evidence and hold that the warrant to search Titus' house was not supported by probable cause.

I.

In July 1993, the Colorado Springs Police Department received a letter from a first-time anonymous informant alleging that the occupants of 716 Arcadia Place, Colorado Springs, were engaged in selling marijuana. The informant stated that she had observed a large number of visitors to the home, who stayed for short periods of time. The informant included in the letter a list of the license plate numbers of approximately twenty cars belonging to the visitors, and descriptions of the vehicles. Additionally, she stated that on several occasions she had smelled the odor of burning marijuana coming from the residence.

Detective Curtis Richter checked the license plate numbers provided by the informant in a computer data base and found that they matched the descriptions of the vehicles given by the informant. The anonymous informant later provided two more lists of vehicle license plates and descriptions, which Detective Richter also confirmed. He determined that approximately forty-seven different vehicles had stopped at the residence in the one-month period between late July 1993 and late August 1993.

On the afternoon of August 22, 1993, Detective Richter sent a police informant to 716 Arcadia Place to try to buy marijuana from the defendant, who happened to be holding a yard sale that day. The police informant was wearing a hidden tape recording device. According to Detective Richter's affidavit to support the warrant, the following conversation took place between the police informant and Titus: ³

CI [Confidential Informant] asked the male if the property out in front was for sale, specifically a VCR. The male party stated that the VCR was for sale, and CI asked, "Are you Tom?". The male replied, "Yeah", and CI told Tom Titus that he was a friend of "Barb's", which was the first name of a person whose license plate had been seen at Titus' residence by Crime Stopper # 1789E. At that time, Tom Titus stated, "Oh, uh, Mimi".

At that time, CI stated, "I'll buy that (the VCR), and can you get me a quarter?", meaning a quarter ounce of marijuana. Titus stated, "No.... don't have any". CI, at that time, asked, "Can I get some later, if I bring Mimi?". Tom Titus stated, "We'll see, if you bring Mimi". CI[ ] and Tom Titus then continued to talk about the VCR, and several seconds later, CI asked again for a quarter ounce of marijuana. Tom Titus told CI, "That's something I won't do ... I've got hard and pat rules about that".

At that time, CI stated, "I'll give you sixty for both, just an eighth (meaning an eighth of an ounce of marijuana[) ]". CI stated further, "I want to get high, man". Tom Titus then stated to CI, "I can't do it ... bring Mimi".

CI continued to talk to Tom Titus about the marijuana, and Titus told CI, "To this date in my life, I've dealt with a very select group of people ... I don't need new customers ... so, bring Mimi".

The affidavit also stated that Detective Richter conducted surveillance of the house between August 1 and August 30, stopping three times and remaining between one-half and one hour each time, but saw no activity. On October 11, 1993, Detective Richter spoke again with the anonymous informant, who reported that the number of visitors to 716 Arcadia Place continued unchanged.

The affidavit also reported that Titus is self-employed and operates a telephone repair business out of his home.

Additionally, Titus' attorney stated at the suppression hearing that the anonymous informant has had a "long-standing feud" with Titus.

Detective Richter applied for a warrant to search the residence on October 15, 1993, and a county judge signed the warrant. On October 21, 1993, officers of the Colorado Springs Police Department executed the warrant. They seized approximately two ounces of marijuana (58.1 grams), a triple beam balance, and a box of Ziploc baggies. Titus told police that the marijuana belonged to him and that he purchased approximately four ounces of marijuana each month for personal use.

Titus was charged with possession of marijuana with intent to distribute or sell, and possession of marijuana. The trial judge granted Titus' motion to suppress the evidence on the grounds that sufficient probable cause did not exist to support issuance of the search warrant.

II.

The issue before us is whether the affidavit submitted by Detective Richter contained sufficient information to support a finding of probable cause to issue the search warrant. We do not review the decision of the county judge de novo; rather, it is the task of a reviewing court to determine whether the judge who issued the warrant had a substantial basis for concluding that probable cause existed. People v. Abeyta, 795 P.2d 1324, 1327 (Colo.1990).

The determination of probable cause must be made from the four corners of the affidavit. People v. Lindholm, 197 Colo. 270, 273, 591 P.2d 1032, 1034 (1979); People v. Brethauer, 174 Colo. 29, 39, 482 P.2d 369, 373-74 (1971). Probable cause exists when an affidavit alleges sufficient facts to warrant a person of reasonable caution to believe that evidence of criminal activity is located at the place to be searched. Abeyta, 795 P.2d at 1327; People v. Quintana, 785 P.2d 934, 937 (Colo.1990). When the information in an affidavit is based on the reports of an informant, a judge considers the "totality of the circumstances" and asks the common-sense practical question of whether, through the eyes of a reasonable police officer, there is probable cause to issue a warrant. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (abandoning formal application of the two-pronged test enunciated 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)). We adopted the Gates totality-of-the-circumstances test in People v. Pannebaker, 714 P.2d 904 (Colo.1986).

Even if an informant's allegations do not establish probable cause by themselves, it may be possible to obtain a warrant by corroborating the details of the tip through independent police work. Gates, 462 U.S. at 241-42, 103 S.Ct. at 2333-34. Police corroboration of significant aspects of an informant's tip is an important factor in the probable-cause calculation, but it is not a constitutionally required, indispensable component. People v. Paquin, 811 P.2d 394, 398 (Colo.1991). Neither is it necessary that police corroborate evidence relating directly to illegal--as opposed to innocent--conduct alleged by the informant. People v. Turcotte-Schaeffer, 843 P.2d 658, 660-61 (Colo.1993). Under the totality-of-the-circumstances test, it is possible to establish probable cause solely through corroboration of non-criminal activity. Id.

III.

Based on the four corners of the affidavit and the totality of the circumstances, we agree with the trial judge that the information contained in the affidavit was not sufficient to establish that probable cause existed to support the issuance of a search warrant for Titus' residence.

A.

We begin by recognizing that the police had no indication, apart from the anonymous informant's suspicions and the police informant's conversation with Titus, that Titus was engaged in criminal activity. Unlike Pannebaker or Turcotte-Schaeffer, for example, the anonymous informant in this case did not claim that Titus had ever sold marijuana to her, nor that she had ever seen Titus selling marijuana to anyone. Furthermore, the attempt by the police to manufacture a sale by Titus was unsuccessful. No sale ever took place, and Titus made no agreement to sell marijuana to the police informant posing as a buyer.

CI stated, "I'll buy that (the VCR), and can you get me a quarter?", meaning a quarter ounce of marijuana. Titus stated, "No.... don't have any". CI, at that time, asked, "Can I get some later, if I bring Mimi?". Tom Titus stated, "We'll see, if you bring Mimi". CI[ ] and Tom Titus then continued to talk about the VCR, and several seconds later, CI asked again for a quarter ounce of marijuana. Tom Titus told CI, "That's something I won't do ... I've got hard and pat rules about that".

At that time, CI stated, "I'll give you sixty for both, just an eighth (meaning an eighth of an ounce of marijuana[) ]". CI stated further, "I want to get high, man". Tom Titus then stated to CI, "I can't do it ... bring Mimi".

CI continued to talk to Tom Titus about the marijuana, and Titus told CI, "To this date in my life, I've dealt with a very select group of people ... I don't need new customers ... so, bring Mimi".

Although Titus' remarks create an inference that Titus was engaged in criminal activity, absent anything further than reasonable suspicion, the conversation does not--either by itself or when considered with the...