Peoplev.Arnold

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Colorado. En BancOct 29, 1974
186 Colo. 372 (Colo. 1974)
186 Colo. 372527 P.2d 806

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No. 25938

Decided October 29, 1974 Rehearing denied November 18, 1974.

Defendant was convicted of possession of dangerous drugs and conspiracy to possess dangerous drugs and appealed.

Affirmed

1. SEARCHES AND SEIZURESAffidavit — Aguilar-Spinelli Test. Under the Aguilar-Spinelli test, 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; and 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.

2. Affidavits — Warrants — Tested — Interpreted — Common Sense — Realistic. Affidavits for search warrants must be tested and interpreted by magistrates and courts in a common sense and realistic fashion.

3. DRUGS AND DRUGGISTSAffidavit — Informant — Present — Apartment — Reliable — Probable Cause. Where affidavit which contained informant's statement that he was present in defendant's apartment and that he was defendant in possession of dangerous drugs and which also contained a statement that informant was reliable and that information from him had resulted in narcotics arrest and seizures on at least two past occasions, held, this affidavit, as such, was sufficient to establish probable cause for issuance of search warrant.

4. SEARCHES AND SEIZURESWarrants — Reliability of Informant — Established — Previous Information — Arrests — Convictions — Unnecessary. Reliability of informant whose information serves as a basis for application for a search warrant is satisfactorily established if the previous information supplied by him led to arrests; however, informant's previously supplied information does not have to result in convictions in order to establish his reliability.

5. WITNESSESInformant — Disclosure — Non-Disclosure — Discretion. When evidence of lack of credibility is presented to the trial judge, he may, in his discretion, order disclosure of the informant; and if the trial judge finds that the police officers relied in good faith upon credible information supplied by a reliable informant, the informant's identity need not be disclosed.

6. Affidavit — Challenge — Informant — Hearing — Controvert — Proper. Where defendant challenged affidavit in support of search warrant on the ground that informant who stated in affidavit that he observed defendant in possession of drugs on two nights was fictitious, held, trial court's action — in holding a hearing at which defendant was allowed to produce testimony that no person had been in defendant's apartment on such nights to controvert facts stated by informant in affidavit — was proper.

7. Judge — Discretion — Integrity — Affidavit — Police Officer — Defendant — Negative. Where trial judge did not find testimony of single defense witness credible, he was clearly within his discretion in choosing to assign integrity to the statements made in police officer's affidavit, and not to statements of defendant's witness.

8. Informants — Disclosure — Negative — Unless — Necessary — Defense. Informants need not be disclosed unless there has been a showing that the disclosure is necessary to assist in a meaningful defense.

9. DRUGS AND DRUGGISTSExigent Circumstances — Justify — Entry — Without Prior Identification. Exigent circumstances are always present in searches for narcotics, justifying entry without prior identification and announcement.

10. SEARCHES AND SEIZURESEntry — Without Prior Identification — Knock — No Response — Proper. Where investigating officers knocked repeatedly on door of defendant's apartment at a reasonable hour and defendant did not respond and officers only used force to enter apartment after they heard movement inside, held, under these circumstances, entry without prior identification and announcement was not unreasonable and did not render subsequent search of apartment unlawful.

11. DRUGS AND DRUGGISTSPossession — Conspiracy — Evidence — Sufficient — Convictions. Evidence was sufficient to support convictions of possession of dangerous drugs and conspiracy to possess dangerous drugs of defendant who occupied apartment where drugs were found; hence, trial court correctly denied defendant's motion for acquittal.

Appeal from the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.

John P. Moore, Attorney General, John E. Bush, Deputy, Robert C. Lehnert, Assistant, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.


Defendant appeals from conviction of possession of dangerous drugs and conspiracy to possess dangerous drugs. On his appeal, he contends that certain evidence seized in his apartment should be suppressed because (1) the affidavit in support of a search warrant issued to search his apartment was insufficient, (2) the trial court erred in denying a motion for disclosure of a confidential informant, and (3) the police forcibly entered his apartment without prior identification and announcement of purpose. The defendant also argues that the evidence was insufficient to support a conspiracy conviction. Under the facts here, the defendant's contentions are without merit. The judgment of the trial court is therefore affirmed.

Defendant's apartment was searched pursuant to a search warrant. In the course of the search, the police officers seized a quantity of a drug known as D-L Meth-Amphetamine, which was introduced as an exhibit at trial to a jury. The defendant and one Marshall, a co-occupant of the apartment, were arrested at the scene of the search.

I.

[1] Defendant contends that the affidavit presented in support of the issuance of the search warrant is insufficient to establish probable cause. In testing the sufficiency of affidavits in support of search warrants, this court has followed the mandate of the United States Supreme Court in applying the two-pronged Aguilar-Spinelli test. 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, 85 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); People v. Masson, 185 Colo. 65, 521 P.2d 1246 (1974); People v. Harris, 182 Colo. 75, 510 P.2d 1374 (1973); People v. Treadway, 182 Colo. 239, 512 P.2d 275 (1973); People v. Ward, 181 Colo. 246, 508 P.2d 1257 (1973); People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973).

[2] In applying these standards, it is important to keep in mind that the guidelines set forth must be grounded in the practical considerations of criminal investigation. These considerations are well explained in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) as follows:

". . . affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting."

[3] The affidavit involved in this case contains the statement by the informant that he was present in the apartment of the defendant, and that he saw the defendant in possession of dangerous drugs. The direct observations of the informant are sufficient to satisfy the first prong of the Aguilar-Spinelli test. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); People v. Baird, 182 Colo. 284, 512 P.2d 629 (1973); Peschong, supra; People v. Clark, 175 Colo. 446, 488 P.2d 565 (1971); People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971).

The second prong of the Aguilar-Spinelli test is satisfied by the statement in the affidavit that the information was received from "a previously reliable confidential informant whose information has resulted in narcotics arrest and seizures on at least two past occasions . . ." The statement is very similar to that approved in Ward, supra, where the information supplied by the informant had "proven reliable 'on at least 2 recent past occasions which resulted in narcotics arrests and seizures . . .'" See also Baird, supra.

[4] Appellant urges that the reliability of the informant is not established unless the previously supplied information resulted in convictions. That the information resulted in arrests is, in our view, sufficient. The issue involved is the reliability of the informant; this reliability is satisfactorily established if the previous information led to arrests. To impose the more stringent requirement that the information led to convictions would impose an undue restriction on law enforcement officers. The information previously furnished may be in connection with cases not yet tried or may relate to prosecutions dismissed for reasons unrelated to the reliability of the informant's information. Of course, the fact that the information previously supplied has resulted in convictions would strengthen the reliability factor of the informant. Cf. People v. Treadway, supra.

II.

Next, the defendant claims the trial court erred in denying his motion for disclosure of the informant, or in the alternative, the trial court erred in not allowing an in camera hearing as to the sufficiency of the allegations of the affidavit, after certain defense testimony challenged the integrity of the affidavit.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court indicated that a trial judge, when confronted with a motion for disclosure of an informant, must balance the public interest in the continued flow of reliable information against the individual's right to prepare his defense.

[5] This court has ruled that when evidence of lack of credibility is presented to the trial judge, he may, in his discretion, order disclosure of the informant. If the trial judge finds that the police officers relied in good faith upon credible information supplied by a reliable informant the informant's identity need not be disclosed. People v. Quintana, 183 Colo. 81, 514 P.2d 1325 (1973); De La Cruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

Defendant here challenges the trial court's refusal to order disclosure of the informant after the defendant had introduced testimony at a pretrial suppression hearing that the informant was fictitious. A witness for the defendant testified that no person has been in Apartment Number 9 on May 16 and on May 17, 1972. This is in direct opposition with the statement that the informant was present in the apartment on both days.

A majority of states adhere to the rule that, on a motion to suppress, the trial court is confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted. People v. Healy, 126 Ill. App. 2d 189, 261 N.E.2d 468 (1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1365, 28 L.Ed.2d 645 (1971); Smith v. State, 191 Md. 329, 62 A. 287, 5 A.L.R. 2d 386 (1948); State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973); Southard v. State, 297 P.2d 585 (Okla.Crim. 1956). These cases are often based on the rationale that a perjuring affiant would be subject to independent prosecution.

[6] We think the trial judge below followed the better procedure when confronted with such an allegation. A hearing was held at which defendant was allowed to produce evidence to controvert the facts stated in the affidavit. This procedure finds support in the federal courts, United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d (1970); Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962); King v. United States, 282 F.2d 398 (4th Cir. 1960).

[7] Approval of this procedure does not indicate that the trial judge erred in not requiring the People to disclose the identity of the informer. Such a requirement would unduly hamper valid police investigative techniques. In this case, the trial judge apparently did not find the testimony of the single defense witness credible. He was clearly within his discretion in choosing to assign integrity to the statements made in the police officer's affidavit, and not to the statements of the defendant's witness.

[8] Informants need not be disclosed unless there has been a showing that the disclosure is necessary to assist in a meaningful defense. No such showing was made in this case. Roviaro, supra, and Quintana, supra. Cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). See Generally, Comment, Controverting Probable Cause in Facially Sufficient Affidavits, 63 J. Crim. L.C. P.C. 41, 49 (1972).

III.

[9,10] Finally, the defendant contends that an otherwise lawful search was vitiated by the entry into the apartment without prior identification and announcement of purpose. In People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971), this court indicated those situations in which exigent circumstances would justify entry without prior identification and announcement. That decision clearly indicates that exigent circumstances are always present in searches for narcotics. The ease with which narcotics can be expended or destroyed is the justification for this practical rule. The search in this instance is clearly within the guidelines laid down in Lujan. In addition, the investigating officers knocked repeatedly on the door, at a reasonable hour, and defendant did not respond. The officers testified that they heard movement inside the apartment. Only at this point did they use force to enter the apartment. Such an entry is clearly not unreasonable.

IV.

[11] With regard to the defendant's assertion that the evidence is insufficient to support the guilty verdicts, we have reviewed this record and in our view, the trial court correctly denied the defendant's motion for acquittal. The evidence of the defendant's guilt on both charges is sufficient to sustain the guilty verdicts.

Judgment affirmed.

MR. JUSTICE ERICKSON dissents.


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