People v. Winden

• Decision Date: 24 September 1984
• Docket Number: No. 83SA335,83SA335
• Citation: 689 P.2d 578
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David WINDEN and Ben Montgomery, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 578

689 P.2d 578

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David WINDEN and Ben Montgomery, Defendants-Appellees.

No. 83SA335.

Supreme Court of Colorado En Banc.

Sept. 24, 1984.

G.F. Sandstrom, Dist. Atty., Matthew Martin, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

Darol C. Biddle, Pueblo, for defendants-appellees.

KIRSHBAUM, Justice.

The People brought this interlocutory appeal pursuant to C.A.R. 4.1 challenging an order of the trial court granting defendants' motions to suppress certain tangible evidence and statements. We reverse and remand.

I

On February 15, 1983, four members of the Pueblo Police Department and two Pueblo County deputy sheriffs executed a search warrant issued that day to search premises described as "544 Clarion Dr. Pueblo West Colorado." At that time, the residence was occupied by defendants David Winden and Ben Montgomery. The search revealed approximately thirty pounds of marijuana on the premises. Subsequent to the search, and after both defendants were placed under arrest, defendant Winden allegedly made several inculpatory statements to police officials.

The search warrant was issued by a county judge in reliance upon an affidavit of Officer Richard Van Zandt of the Pueblo Police Department. The first paragraph of the affidavit stated that a "confidential reliable informant" related to Officer Van Zandt that on February 15, 1983, the informant observed a large quantity of suspected marijuana in the possession of defendant Winden at 544 Clarion Drive. The second paragraph of the affidavit stated as follows:

The confidential reliable informant mentioned in paragraph # 1 of this affidavit has supplied the affiant with information that led to the arrest of Phillip Jon G[o]nzales DOB 07-22-65 on 02-13-83, for possession of marijuana under one ounce, and possession of marijuana for sale.

Prior to trial, defendants filed motions to suppress all tangible property seized pursuant to the search warrant and to suppress Winden's statements. The motion to suppress tangible items contained the following assertions:

1. There was no probable cause for issuance of the search warrant pursuant to which the aforesaid premises were searched, and the Affidavit on the basis of which the warrant was issued did not comply with the constitutional standard of probable cause as required by the Fourth and Fourteenth Amendments to the United States Constitution. In other words, there was not probable cause for believing the existence of the grounds on which the warrant was issued.

....

5. The search warrant and the affidavit on the basis of which the warrant was issued are void and invalid since the affidavit on the basis of which the warrant was issued contains certain inaccurate and misleading statements and allegations in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 7 of the Colorado Constitution.

At the hearing on these motions, which commenced July 15, 1983, defense counsel questioned Officer Van Zandt about the circumstances surrounding his relationship with the confidential informant. The prosecuting attorney objected to defense counsel's interrogation of the officer on the sole ground that any responses would lead to an impermissible disclosure of the identity of the informant. Thereupon, the trial court questioned Officer Van Zandt in camera about the circumstances surrounding the informant's prior reliability. ¹

Following this in camera hearing, the trial court informed the prosecuting attorney that if the identity of the informant were not disclosed to defendants, the trial court would permit defendants to inquire into the circumstances underlying the statements contained in the second paragraph of the affidavit concerning the reliability of the confidential informant. The hearing was continued to July 21 to permit the district attorney to consider the court's order. ²

The prosecuting attorney declined to disclose the identity of the informant, and at the outset of the proceeding on July 21 objected to further questioning of Officer Van Zandt by defendants on the ground that defendants had not met the procedural requirements of People v. Dailey, 639 P.2d 1068 (Colo.1982). The trial court overruled the objection, and defense counsel continued the cross-examination of Officer Van Zandt. This examination revealed the following additional facts: (1) on February 13, 1983, Officer Van Zandt asked the informant to assist Officer Eddie Rhodes and Van Zandt by purchasing suspected drugs at a particular Pueblo park where drug transactions were known to occur; (2) the informant was given marked city funds and instructed to go to the park and wait for someone to offer to sell him drugs; (3) at all times the informant was within the eyesight of Officer Rhodes; (4) Officer Van Zandt concealed himself near the park, but at all times maintained radio contact with Officer Rhodes, who was also concealed; (5) the informant purchased some marijuana cigarettes, immediately turned over the unused city funds and the contraband to Officer Van Zandt, and described the person who had sold the marijuana cigarettes; (6) this information was relayed to Officer Rhodes, who pursued the suspect; and (7) the suspect was stopped and arrested by Officer Van Zandt. Officer Rhodes testified that from his vantage point he only saw the informant "receiving something" from Gonzales and observed Gonzales "put something in his pocket."

Subsequent to the hearing, the trial court suppressed all of the tangible evidence seized pursuant to the search warrant. It also suppressed certain statements made by Winden to police officers on the ground that these statements were the product of the unlawful arrest. The trial court denied defendants' request to suppress certain statements found by the court to have been "volunteered" by Winden.

Concluding that the circumstances surrounding the apprehension of Gonzales were "contrived," the trial court ruled that the statement that the confidential informant had supplied Officer Van Zandt with information which led to an arrest was "not correct." The trial court then struck the second paragraph from the search warrant and concluded that, without the stricken information, the warrant did not satisfy the "reliability prong" of the Aguilar-Spinelli test. ³ The trial court further held that, absent the stricken paragraph, the affidavit failed to establish probable cause under the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The trial court did not rule on the other issues raised by defendants in their suppression motions.

II

The People first assert that defendants should not have been permitted to examine Officer Van Zandt on July 21 concerning the circumstances of the arrest of Phillip Jon Gonzales because they failed to establish any right to challenge the veracity of Officer Van Zandt's affidavit. We disagree with this argument in the circumstances of this case.

In People v. Dailey, 639 P.2d 1068 (Colo.1982), we held that a defendant who, under state law, seeks to challenge the veracity of a warrant affidavit must file a motion which contains a specification of the precise statements challenged and which is accompanied by one or more affidavits reflecting a good faith basis for the challenge. Upon a similar preliminary showing, a veracity hearing must be held in order to comply with the Fourth Amendment of the federal constitution. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Defendants' motion to suppress did not satisfy such procedural requirements here. However, the impetus for the critical evidentiary hearing which took place on July 21 was not the initial motion to suppress filed by defendants, but rather the order of the trial court on July 15 that, based upon its in camera questioning of Officer Van Zandt, it would permit further cross-examination of the officer by defendants unless the prosecutor revealed the identity of the informant referred to in the affidavit. No objection was voiced to the July 15 in camera hearing, and the People do not suggest that the trial court lacked authority either to conduct such in camera hearing or to enter such order after interrogating the officer. See People v. Bueno, 646 P.2d 931 (Colo.1982). Cf. People v. Martinez, 658 P.2d 260 (Colo.1983). While we reaffirm the necessity of compliance with the procedural requisites described in Dailey for veracity challenges formally raised by a defendant, we conclude that in this case defendants were authorized by the trial court's order of July 15 to pursue their examination of Officer Van Zandt. ⁴

III

The People next contend that the trial court employed an erroneous legal standard in striking the second paragraph of the affidavit. We agree.

In People v. Arnold, 186 Colo. 372, 527 P.2d 806 (1974), we recognized that in some circumstances the veracity of statements attributed to confidential informants in affidavits for search warrants may be challenged by a defendant. It is also well settled that a defendant may challenge the sufficiency of a warrant affidavit on the ground that statements of the affiant are false. People v. Bueno, supra. See People v. Ellis, 189 Colo. 242, 539 P.2d 132 (1975).

In People v. Dailey, supra, we addressed some of the problems arising from a conclusion that statements contained in a warrant affidavit are false. We held, following Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the Fourth Amendment of the United States Constitution requires false statements contained in such affidavits to be stricken if "the source of the error is intentional falsehood or reckless disregard for the truth on the part of the officer-affiant." Dailey, 639 P.2d at 1075. See also People v. Massey, 178 Colo. 141, 495 P.2d 1141 (1972). We also expressly indicated that if...