People v. Warner, 06CA2252.

• Decision Date: 19 August 2010
• Docket Number: No. 06CA2252.,06CA2252.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Bo Richard WARNER, Defendant–Appellant.
• Court: Colorado Court of Appeals

251 P.3d 556

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Bo Richard WARNER, Defendant–Appellant.

No. 06CA2252.

Colorado Court of Appeals, Div. VI.

Aug. 19, 2010.

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Elizabeth Hunt White, Boulder, Colorado, for Defendant–Appellant.Opinion by Judge MILLER.

Defendant, Bo Richard Warner, appeals his multiple convictions for possession of controlled substances, drug paraphernalia, and firearms. He also appeals his conviction and enhanced sentence as a special offender. We affirm.

I. Background

Police searched a residence identified as defendant's home pursuant to a warrant and found various items of contraband. Defendant asserted at trial that he no longer lived at the residence on the date it was searched, had begun moving out approximately six weeks earlier, and had not slept there since being shot in a murder attempt two weeks earlier. He argued that the items seized belonged to an alternate suspect he alleged was the sole tenant of the residence at the time of the search.

II. Analysis

A. Suppression of Evidence

Defendant contends that the trial court improperly denied his motion to suppress evidence seized pursuant to a search warrant based on allegedly false statements by a first-time informant. We disagree.

In the context of a suppression motion, we defer to a trial court's findings of fact, but analyze de novo its application of legal standards to those facts as a question of law. People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.2001).

1. Veracity Hearing

Defendant contends that the trial court erred by refusing to consider, as substantive evidence at his veracity hearing, an affidavit by an investigator who interviewed the informant whose alleged statements were used to obtain a warrant to search his residence. We disagree.

A defendant challenging the veracity of a search warrant affidavit is entitled to a hearing only if he or she (1) establishes a good faith basis in fact for the challenge and (2) describes with specificity the precise statements being challenged. People v. Dailey, 639 P.2d 1068, 1074–75 (Colo.1982); People v. Flores, 766 P.2d 114, 119 (Colo.1988). Thus, the defendant's suppression motion must be supported by one or more affidavits to meet these threshold requirements. Dailey, 639 P.2d at 1075.

At a veracity hearing, the court must first determine whether there are erroneous statements in the affidavit. If so, it must decide whether the source of the error is intentional falsehood or reckless disregard for the truth on the part of the affiant. If the court finds that the defendant has shown by a preponderance of the evidence that the source of the error is intentional falsehood or reckless disregard for the truth, then the false statements must be stricken from the affidavit. Flores, 766 P.2d at 119. False statements resulting from any other source need not be stricken if the trial court determines that other sanctions, or no sanctions, are appropriate. Id.

Here, the police officer who searched defendant's residence obtained a search warrant based on statements attributed to a first-time, named informant. In support of his suppression motion, defendant submitted an affidavit (suppression affidavit) of a defense investigator who interviewed the informant one year after the search and who stated that the informant denied making most of the statements attributed to him in the search warrant affidavit.

The trial court found that the suppression affidavit was sufficient to support defendant's request for a veracity hearing, but refused to consider the affidavit as substantive evidence at the veracity hearing because it constituted inadmissible hearsay. Defendant offered no other evidence in support of his claim that the search warrant affidavit was based on false information, and the trial court based its decision on the only substantive evidence before it: the testimony of the police officer who had obtained the warrant. Accordingly, the trial court denied defendant's suppression motion.

Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. CRE 801(c). Hearsay is not admissible as evidence in criminal proceedings except as specifically provided by rule or statute. CRE 802; see also CRE 1101.

Here, defendant relied on the suppression affidavit without attempting to call the informant, whose purported statements were extensively quoted and paraphrased in the affidavit. The affidavit itself constituted pure hearsay, and the statements allegedly made to the investigator by the informant amounted to unsworn hearsay within hearsay. Moreover, no exclusion or exception to the hearsay rule applied to this evidence, nor does any statute or other rule of criminal procedure allow the use of an affidavit as substantive evidence in a veracity hearing.

It is one thing for a trial court to accept an affidavit to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit. It is quite another to accept the same affidavit for the purpose of resolving that dispute. See, e.g., Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So.2d 668, 670 (Fla.Dist.Ct.App.2000) (affidavit not generally admissible at evidentiary hearing because it is not subject to cross-examination). Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant's personal knowledge will not suffice. See CRE 602; State v. Pearson, 145 N.C.App. 506, 551 S.E.2d 471, 475 (2001).

Here, many of the questions and responses from the interview reported in the suppression affidavit were confusing. For example, one of the paragraphs of the suppression affidavit stated:

I stated to [the informant] that the Search Warrant Affidavit stated he said that “during the time of his second stint on work release, April 20, 2005 through June 1, 2005 he would purchase methamphetamine from [defendant] about twice a week; and that he would usually purchase about one gram of methamphetamine at a time and that he would charge him $50.00 dollars.” I asked [the informant] if that was true. [The informant] answered, “No.”

It is impossible to determine from this response whether the informant intended to assert that the entire quotation was false or whether he merely purchased methamphetamine only once week, in different amounts than one gram, for a different price, or during a different time period.

The prosecution called the officer who wrote the search warrant affidavit; he affirmed the statements contained in that affidavit and was available for full cross-examination by the defense. The trial court thus had the opportunity to assess the officer's credibility.

No one testified for defendant at the veracity hearing. The prosecution had no opportunity to cross-examine the informant or to obtain clarification of his responses to leading and compound questions, and the trial court could not assess his demeanor. Moreover, the investigator lacked personal knowledge of the substantive statements contained in the suppression affidavit; he merely reported the informant's unsworn responses to his questions. Thus, even if the trial court had considered the suppression affidavit at the veracity hearing, the affidavit would not have sustained defendant's burden.

We therefore conclude that the trial court did not err by determining that defendant failed to establish by a preponderance of the evidence that the search warrant affidavit contained false statements.

Accordingly, we next proceed to assess whether the unexcised search warrant affidavit supported a showing of probable cause.

2. Probable Cause

Defendant contends that the search warrant lacked probable cause because it was based on largely uncorroborated statements by a first-time informant. We disagree.

An affidavit supporting a request for a search warrant establishes probable cause if it contains sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Kerst, 181 P.3d 1167, 1172 (Colo.2008). A reviewing court can consider only the information contained within the four corners of the affidavit in assessing whether an affidavit establishes probable cause. People v. Randolph, 4 P.3d 477, 481 (Colo.2000).

The court must consider the totality of the circumstances in assessing probable cause. People v. Miller, 75 P.3d 1108, 1113 (Colo.2003). “A probable cause determination ‘does not lend itself to mathematical certainties and should not be laden with hypertechnical interpretations or rigid legal rules.’ ” Kazmierski, 25 P.3d at 1211 (quoting People v. Altman, 960 P.2d 1164, 1167 (Colo.1998)). Instead, probable cause necessary to obtain a search warrant is measured by reasonableness. People v. Campbell, 678 P.2d 1035, 1040 (Colo.App.1983).

We must uphold the validity of a warrant if the search warrant affidavit creates a substantial basis for concluding that probable cause exists. Miller, 75 P.3d at 1112. Any doubts must be resolved in favor of the issuing judge's determination. People v. Eirish, 165 P.3d 848, 852 (Colo.App.2007).

Here, the search warrant affidavit alleged that a named informant provided information including the following:

• he had known defendant for a year and a half;

• he and defendant had been “business partners” in the distribution of drugs;

• he had been to defendant's house about ninety times and had seen drugs there each time;

• defendant kept drugs in a safe in his laundry room;

• defendant had sold him drugs about sixty times, including approximately twelve times in the past six weeks;

• he had purchased drugs from defendant about fourteen hours prior to speaking with police;

• defendant carried a gun, specifically a Ruger 9mm, and he had...