People v. Varrieur

• Decision Date: 24 April 1989
• Docket Number: No. 88SA400,88SA400
• Citation: 771 P.2d 895
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Barnum Lee VARRIEUR, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 895

771 P.2d 895

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Barnum Lee VARRIEUR, Defendant-Appellee.

No. 88SA400.

Supreme Court of Colorado En Banc.

April 24, 1989.

Stephen K. ErkenBrack, Dist. Atty., Stephen L. Laiche, John J. Fuerst, III, Deputy Dist. Attys., Grand Junction, for plaintiff-appellant.

Justin Dean Kirk, Grand Junction, for defendant-appellee.

VOLLACK, Justice.

The Mesa County District Court suppressed evidence of heroin seized from the pocket of Barnum Lee Varrieur (Varrieur or defendant) ¹ pursuant to a search warrant. The district court concluded that the search warrant was not supported by probable cause because the information provided by a confidential informant was not supported by independent evidence corroborating the informant's statements. The prosecution through interlocutory appeal argues that the district court in suppressing the evidence failed to comply with the standards set by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by this court in People v. Pannebaker, 714 P.2d 904 (Colo.1986). We agree and reverse the suppression order.

I.

The following events are based on information contained in the affidavit supporting the search warrant in question. In the spring of 1988, the Mesa County Narcotics Enforcement Team (narcotics team) was operating in Grand Junction by conducting "controlled purchases" of illegal drugs through the use of confidential informants. An informant told a member of the narcotics team in March 1988 that he had just purchased heroin from Barnum Lee Varrieur. The informant told the narcotics team that Varrieur said he "sold heroin regularly in the Grand Junction area and received his supply of the narcotic from Denver, where he would go pick it up whenever necessary." Varrieur told the informant that that was the last heroin he had, and said that he "would have to go to the Denver area to obtain more of the drug." A field test revealed the substance purchased by the informant to be heroin.

On May 9, 1988, a second confidential informant ² told a Mesa County sheriff that Varrieur had flown to Denver that day to obtain heroin and was returning that night at 9:48 P.M. on Continental Airlines Flight 1168. This information was relayed to Steven R. Stogsdill, a Mesa County deputy sheriff, who is the affiant in this case. Stogsdill then called Continental Airlines and learned that Varrieur had indeed purchased a round-trip ticket to Denver that day and was scheduled to return to Grand Junction that night on Continental Airlines Flight 1168. After realizing from his training in drug enforcement that drug traffickers often use "quick turnaround flights" to purchase and transport drugs, Stogsdill spoke with a member of the narcotics team, who said that the confidential informant "had supplied him with information on four prior occasions within the last year" and said that his "information had been confirmed as reliable on each of these other occasions."

Stogsdill described Varrieur and sought a warrant to search him and his luggage at the airport for heroin and other evidence of his involvement in the sale, distribution, or possession of heroin. The search warrant was signed that day by Mesa County District Court Judge David A. Bottger.

Members of the narcotics team detained Varrieur that night as he disembarked from the plane. He was searched, and one and one-half grams of heroin were found in his shirt pocket. He was subsequently charged with possession of heroin in violation of section 18-18-105, 8B C.R.S. (1986).

Varrieur moved to suppress the heroin on the ground that the information provided by the first informant was stale because it occurred almost two months before the arrest and on the ground that the affidavit failed to provide a basis for the second informant's belief that Varrieur was going to Denver to buy drugs.

The district court held that the information provided by the first informant was not stale. The district court found the information was significant "to determine the kind of activity that Mr. Varrieur has engaged in the past[,] shedding, therefore, credibility possibly on the new information that was obtained on May 9, 1988 from another confidential informant."

The district court found, however, that the affidavit lacked "any indication as to where the information came from from [sic] the [second] informant, and any indication that it was not something that he had just thought of in terms of the important fact of Mr. Varrieur obtaining the heroin." As a result, the district court concluded from the totality of the circumstances that the search warrant was not supported by probable cause and granted the motion to suppress the heroin. ³

II.

The fourth amendment to the United States Constitution and section 7 of arti- cle II of the Colorado Constitution provide that no search warrant shall issue without probable cause to believe that contraband or material evidence of criminal activity is located in the place to be searched. See § 16-3-303, 8A C.R.S. (1986); People v. Hill, 690 P.2d 856, 859 (Colo.1984); People v. Ball, 639 P.2d 1078, 1082 (Colo.1982). In determining whether a search warrant is supported by probable cause, the issuing magistrate may look only at facts contained within the four corners of the affidavit. People v. Donahue, 750 P.2d 921, 923 (Colo.1988); People v. Atley, 727 P.2d 376, 377-78 (Colo.1986). The task of the issuing magistrate "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place." People v. Pannebaker, 714 P.2d 904, 907 (Colo.1986). Probable cause is measured in terms of reasonableness and not mathematical certainty, People v. Hearty, 644 P.2d 302, 310 (Colo.1982), and depends on "knowledge grounded in the practical considerations of everyday life on which reasonable and prudent persons act," Hill, 690 P.2d at 859.

Whether facts in an affidavit provided by a confidential informant establish probable cause for a search warrant depends not on a rigid set of legal rules but on a practical, nontechnical "totality of the circumstances" approach that considers an informant's veracity, reliability, and basis of knowledge. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1982); Pannebaker, 714 P.2d at 907. In rejecting as overly rigid the "two-pronged test" of information provided by a confidential informant created by 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), the United States Supreme Court stated that what had previously been treated as largely independent prongs of "veracity" or "reliability" on one hand and "basis of knowledge" on the other

are better understood as relevant considerations in the...