People v. Trontell, 26594

• Decision Date: 14 April 1975
• Docket Number: No. 26594,26594
• Citation: 188 Colo. 253,533 P.2d 1124
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard John TRONTELL and Thomas Richard Fillmore, also known as Tom Fillmore, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1124

533 P.2d 1124

188 Colo. 253

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard John TRONTELL and Thomas Richard Fillmore, also known as Tom Fillmore, Defendants-Appellees.

No. 26594.

Supreme Court of Colorado, En Banc.

April 14, 1975.

J. E. Losavio, Jr., Dist. Atty., Donald M. Hoerl, Deputy Dist., Atty., Pueblo, for plaintiff-appellant.

Darol C. Biddle, Pueblo, for Thomas Richard Fillmore.

Bollinger, Flick & Young, Pueblo, for Richard John Trontell.

HODGES, Justice.

Defendants Trontell and Fillmore were charged with possession of narcotic drugs. After entry of pleas of not guilty, the defendants filed motions to suppress evidence seized pursuant to a search warrant executed at the premises where the defendants resided. The trial judge granted the motion to suppress, and the district attorney initiated this interlocutory appeal. Contrary to the trial court's findings, we hold that the affidavit in support of the search warrant is sufficient to show the credibility of the informant and the reliability of the information he furnished to the affiant. We therefore reverse the ruling of the trial court.

A warrant for the search of defendants' residence was issued by a judge of the Pueblo County court. It was supported by the affidavit of a law enforcement agent of the Southern Colorado Drug Agency. The affidavit itemized facts and statements made to the affiant by one David Clair Bickle, who was identified in the affidavit by name and address. The affidavit set forth that Bickle reported that on four occasions he had been in defendants' residence; that he had seen marijuana being used in the residence; that he had observed the place in the residence where the marijuana was secreted; and that he had purchased a large quantity of marijuana on three separate occasions in the residence. Also specified in the affidavit was a description of the receptacle where the marijuana was secreted, and the dates when Bickle was in the residence and when he purchased the marijuana. In the execution of the search warrant, a large quantity of marijuana was seized.

Several felony narcotic charges against informant Bickle were reduced to misdemeanors to which he pled guilty.

The Aguilar-Spinelli test by which affidavits in support of search warrants must be judged has been outlined in numerous cases, one of the most recent being People v. Arnold, Colo., 527 P.2d 806 (1974). It is set forth therein that:

'An affidavit which relies on information supplied by a confidential informant must allege sufficient underlying facts from which the issuing magistrate can make an independent determination that illegal activity is being carried on in the place to be searched. In addition, the affidavit must set forth sufficient information so that the magistrate can determine independently that the informant is credible, or that his information is 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).'

In the trial court, the defendants raised no attack against the so-called Basis-of-knowledge prong of the Aguilar-Spinelli test. Rather, they argued that the affidavit demonstrates that the informant is neither credible nor his information reliable. On these grounds, the trial court granted the defendants' motion to suppress.

Because the informant's identity is set forth in the affidavit, it is suggested that the Aguilar-Spinelli test is not fully applicable and that the reliability of this informant should be measured on the basis of the citizen-informer rule announced and adopted in People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971). That rule essentially provides that a citizen who is identified by name and address and was a witness to criminal activity will not be considered on the same basis as the ordinary confidential informant. When the affidavit specifies the identity of the citizen-informer who is a witness to criminal activity and there is included a statement of the underlying circumstances, the affidavit will be deemed sufficient without the requirement that further facts demonstrating the credibility of the informant and the reliability of his information be set forth.

In People v. Hubbard, Colo., 519 P.2d 951 (1974), the citizen-informer rule was further explained. A citizen-informer who was an eyewitness to the crime and is identified in the affidavit is presumed to be reliable, and thus, there is no requirement that either his credibility or the reliability of his information be further demonstrated. See also People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973).

The information provided by the citizen-informer is given this preferred position primarily because the informant is not protected behind a cloak of secrecy, and also because his sole motivation in reporting the criminal activity which he observed is that of a good citizen who is acting in the best interests of society. People v. Glaubman, Supra. In other words, the ordinary citizen, in reporting a crime which he viewed, is not considered with the same skeptical eye which is cast upon the unidentified informant who in most cases is part of the 'criminal milieu.' See United States v. Harris, 403 U.S. 573, 599, 91 S.Ct. 2075, 2089, 29 L.Ed.2d 723 (1971) (Harlan, J., dissenting); State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 765--773 (1974).

The trial court ruled that informant Bickle could not be classified as a citizen-informer. We agree because it is clearly shown here that his primary motivation in reporting criminal activity is not that of a citizen who is acting in the best interests of society. Rather, his obvious reason was to trade his information and cooperation for a reduction in the severity of criminal charges pending against him. In granting the suppression motion, the trial court, in effect, found also that the second prong of the Aguilar-Spinelli test was lacking in the affidavit. In other words, it was the trial court's opinion that the affidavit did not set forth sufficient information to enable the magistrate to make an independent determination that informant Bickle is credible or that his information is reliable. We disagree with this conclusion.

The second prong of the Aguilar-Spinelli test can be satisfied by showing either that the informant is credible or that his information is sufficiently detailed to demonstrate reliability. By satisfying either spur of this prong, the affidavit passes analysis. The most frequent manner by which the informant is shown to be credible and his information reliable is by stating that he has previously supplied information which has proven to be accurate. This has been discussed by this court in numerous cases. Arnold, supra; People v. Ward, 181 Colo. 246, 508 P.2d 1257 (1973); People v. Baird, 182 Colo. 284, 512 P.2d 629 (1973). However, the Aguilar-Spinelli requirements can be satisfied in other ways. This affidavit records the declarations by informant Bickle that on three occasions he smoked marijuana with defendant Fillmore, and that on each of these occasions, he purchased a large quantity of marijuana at the defendants' residence. These declarations against his penal interest carry with them an indicia of reliability.

In United States v. Harris, Supra, the Supreme Court of the United States stated that:

'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.'

See also United States v. Marihart, 472 F.2d 809 (8th Cir. En Banc, 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971); United States v. Long, 449 F.2d 288 (8th Cir. 1971); United States ex rel. DiRienzo v. Yeager, 443 F.2d 228 (3rd Cir. 1971). This court has also recognized that such statements are sufficient to support the issuance of a warrant. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

The statements by informant Bickle to the affiant are specific admissions of criminal offenses. Under United States v. Harris, Supra, this is sufficient to determine that his information is reliable. But the facts here are even more compelling than the facts presented in United States v. Harris, Supra. There, the informant was not named, as informant Bickle is in the affidavit before us in this case. The 'residual risk and opprobrium' is correspondingly greater where the informant is identified by name nd address as in this case. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) which discusses the indicia of reliability which attaches to statements against penal interest.

The ruling is reversed.

DAY and ERICKSON, JJ., dissent.

ERICKSON, Justice (dissenting):

I respectfully dissent. Probable cause for an arrest or search must be based on information provided by an inherently reliable source. People v. Hubbard, Colo., 519 P.2d 951 (1974); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). When the source of information for a search warrant is a citizen-informer, reliability is presumed and need not be further established in the affidavit. However, when hearsay information upon which a search warrant is issued is supplied by an individual who does not fall within the definition of a citizen-informer, the search warrant must contain some of the underlying details from which the issuing magistrate could independently conclude that the informer was credible or the information supplied was reliable and would justify the action...