The PEOPLE of the State of Colorado, Plaintiff-Appellant/Cross-Appellee, v. Donald Hugh PATE, Defendant-Appellee/Cross-Appellant.
No. 93SA155.
Supreme Court of Colorado, En Banc.
July 11, 1994.
Rehearing Denied Aug. 8, 1994.
878 P.2d 685
In summary, we hold that the trial court employed an erroneous measure of damages when it awarded free tail coverage and/or specific performance to the doctors. On remand, the proper measure of damages is the difference between the cost of tail coverage originally contracted for by each doctor and the amount actually paid for the coverage, plus any other damages proximately caused by PHICO’s misconduct. The doctors who purchased prior acts coverage should be similarly compensated. We further hold that the trial court’s award of punitive damages is reversed as to seven doctors who are not entitled to punitive damages, and as to two doctors who qualify for punitive damages under the criteria established by the trial court.14 Additionally, the trial court’s award of prejudgment interest on punitive damages is reversed, and the trial court is directed to compute prejudgment interest on nonpunitive damages at the statutory rate of eight percent per annum compounded annually. The trial court’s order is affirmed in all other respects.
The case is returned to the court of appeals with directions to remand it to the trial court for further proceedings consistent with this opinion.
David F. Vela, State Public Defender, Samuel Santistevan, Julie Iskenderian, Deputy State Public Defenders, Denver, for defendant-appellee/cross-appellant.
Justice MULLARKEY delivered the Opinion of the Court.
The People of the State of Colorado appeal the trial court’s ruling that section
I
On May 11, 1992, an anonymous caller (the informant) contacted Officer Thomas A. Lehmann (Officer Lehmann) of the Colorado Springs Police Department to report that an individual by the name of Michael Acosta (Acosta) had been arrested one week earlier on outstanding warrants from New Mexico. The informant specified that the warrants had been for narcotics offenses. She also reported to Officer Lehmann that, according to a friend of hers, whose name she would not divulge, Acosta called his girlfriend, Lola Schafer, to request that she arrange to have marihuana removed from his residence be-
In response to this tip, Officer Lehmann called 260-1716 and spoke to a woman who identified herself as “Mrs. Pate” and stated that she lived at 2853 Buttermilk Circle.3 When Officer Lehmann checked the utilities listing for 2853 Buttermilk Circle, he found that it was registered under the names “Donald H. Pate” and “Anita C. Pate.” He then checked the criminal history of a “Donald Hugh Pate” and found a traffic record but no criminal arrests. He also checked the criminal history of a “Michael Anthony Acosta” and found that he had been arrested on May 9, 1992, for active warrants from New Mexico. Those warrants were for the possession of marihuana with the intent to distribute.4 Finally, Officer Lehmann called the El Paso Criminal Justice Center and confirmed that Acosta was incarcerated at that facility.
Based upon the informant’s tip and his own efforts to corroborate that information, Officer Lehmann applied for and received a warrant to search the Pate residence at 2853 Buttermilk Circle.5 Officer Lehmann and other police officers then went to the Pate residence and asked for Donald Pate (Pate). He was not home, however, and Officer Lehmann spoke with his wife. Prior to presenting the search warrant, Officer Lehmann told Mrs. Pate that he had information indicating that marihuana could be found in her home and asked for her consent to search the residence. Mrs. Pate apparently agreed and signed a written consent-to-search form.6 Officer Lehmann then presented her with the search warrant and Mrs. Pate told him that the marihuana was stored in the crawlspace of an extra bedroom. The officers found approximately eight ounces of marihuana packaged for street sale at that location.
Soon thereafter, Pate arrived at the residence and was arrested and taken into custody. After waiving his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)7 rights, Pate told the police that he had been storing the marihuana for a friend named “Lola” and that he was not a drug dealer. Pate was subsequently charged with possession of between one and eight ounces of marihuana8 and possession of marihuana with the intent to sell and distribute.9
Prior to trial, Pate filed a motion to suppress evidence seized from his residence, claiming that the search warrant was insufficient on its face and that Officer Lehmann’s affidavit in support of the search warrant failed to set forth probable cause to believe that contraband was located at Pate’s residence. Following a hearing on this issue, the trial court denied the motion, stating that “it is clear to the Court that there is sufficient
Pate waived his right to a trial by jury and, after a trial to the court on March 3, 1993, he was convicted of possession of marihuana with the intent to distribute, a class four felony. The trial court also found that although the prosecution had proved that Pate possessed marihuana with the intent to distribute, it failed to prove beyond a reasonable doubt that the net weight of the marihuana, excluding packaging materials and contaminates, was greater than eight ounces. The trial court therefore convicted Pate of possession of between one and eight ounces of marihuana, a class one misdemeanor.
After a sentencing hearing on April 7, 1993, the trial court sentenced Pate to three years of probation. At that hearing, the prosecution requested that Pate be ordered to surrender his driver’s license to the trial court pursuant to section
The prosecution then filed a timely notice of appeal with this court, pursuant to section
II
First we will address Pate’s argument that the trial court committed reversible error in denying his motion to suppress the marihuana seized at his residence pursuant to the search warrant. Pate claims that Officer Lehmann’s affidavit in support of the search warrant did not contain sufficient information to support a finding of probable cause. We disagree.
Probable cause for a search warrant exists when the affidavit in support of the warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or other evidence of criminal activity is located at the place to be searched. People v. Arellano, 791 P.2d 1135, 1137 (Colo. 1990); People v. Quintana, 785 P.2d 934, 937 (Colo. 1990). Whether an affidavit based on information provided by a confidential informant satisfies the constitutional standard of probable cause must be evaluated on the basis of the totality-of-the-circumstances test formulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (abandoning the two-pronged Aguilar-Spinelli test). People v. Turcotte-Schaeffer, 843 P.2d 658, 660 (Colo. 1993); People v. Pannebaker, 714 P.2d 904, 907 (Colo. 1986) (adopting the Gates test in construing the Search and Seizure Clause of the Colorado Constitution). The Gates Court emphasized that a judge or magistrate reviewing an application for a search warrant should make “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” 462 U.S. at 238, 103 S.Ct. at 2332.
Under the totality-of-the-circumstances test, “an informant’s account of criminal activities need not establish the informant’s basis of knowledge, so long as the informant’s statement is sufficiently detailed to allow a judge to reasonably conclude that the informant had access to reliable information about the illegal activities reported to the police.” People v. Abeyta, 795 P.2d 1324, 1327-28 (Colo. 1990). Moreover, even if an affidavit does not establish the informant’s basis of knowledge or the veracity of the reported information, police corroboration of some of the information provided by the informant may be sufficient to support a find-
A magistrate’s probable cause determination is given great deference and is not reviewed de novo. Leftwich, 869 P.2d at 1266. Rather, the duty of a court reviewing the sufficiency of an affidavit on a motion to suppress is simply to ensure that the issuing judge had a “substantial basis” for concluding that probable cause existed. 462 U.S. at 238-39, 103 S.Ct. at 2332-33; Turcotte-Schaeffer, 843 P.2d at 660. In making that determination, a reviewing court must restrict itself to the four corners of the affidavit and must analyze the affidavit in a “nontechnical and common sense fashion.” Paquin, 811 P.2d at 398; see also People v. Lubben, 739 P.2d 833, 834-35 (Colo. 1987). Finally, we have held that “doubts must be resolved in favor of magistrates’ determinations of probable cause in order to avoid giving police an incentive to resort to warrantless searches in the hope of relying on consent or some other exception to the warrant requirement that might develop at the time of search.” Abeyta, 795 P.2d at 1327-28; People v. Varrieur, 771 P.2d 895, 897 (Colo. 1989); see also Gates, 462 U.S. at 236, 103 S.Ct. at 2331.
In this case, Pate advances several reasons why, in his view, Officer Lehmann’s affidavit did not provide the issuing judge with a substantial basis for concluding that probable cause existed to search Pate’s home. His first claim is that the anonymous tip, by itself, failed to provide the kind of “detailed, intimate knowledge” about Pate and his activities which would indicate that the informant knew Pate personally.10 Therefore, according to Pate, the information given by the first-time informant lacked the necessary indicia of reliability to support a finding of probable cause. We are not persuaded.
It is important to note at the outset that there is no requirement under the Gates totality-of-the-circumstances test that an anonymous tip contain a highly detailed description of a suspect or the alleged criminal activity in which he or she is involved. Rather, the amount of detail provided in the tip is merely one of several factors which an issuing court should consider in determining the reliability or veracity of that information. Gates, 462 U.S. at 244, 103 S.Ct. at 2335; see also Paquin, 811 P.2d at 397. Yet, where the details provided by the informant indicate familiarity with the implicated individual or the alleged criminal activity or are facts which are difficult to obtain, the issuing judge may properly conclude that it was not unlikely that the informant had access to reliable information about the alleged illegal activities. Gates, 462 U.S. at 245, 103 S.Ct. at 2335-36; Leftwich, 869 P.2d at 1268.
In this case, the details provided by the informant included: (1) the type of contra-
Even if an anonymous tip, on its face, does not provide enough detailed information to establish that the informant had access to reliable information, independent police corroboration of some of those details which were provided in the tip nevertheless may support a finding of probable cause.13 Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30 (“It is enough, for purposes of assessing probable cause, that ‘corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.’”); Leftwich, 869 P.2d at 1267-68; Turcotte-Schaeffer, 843 P.2d at 661; People v. Diaz, 793 P.2d 1181, 1183 (Colo. 1990). Thus, the question before us is whether the information revealed by the informant, when combined with the information gained through Officer Lehmann’s independent investigation of that tip, provided the issuing court with a substantial basis to determine that probable cause existed to search Pate’s residence. See Diaz, 793 P.2d at 1183 (“Corroboration of an anonymous tip with facts learned by an investigating officer is sufficient for ‘the practical, common sense judgment called for in making a probable cause determination.’ ”). We answer that question in the affirmative.
As we noted above, the informant provided a fairly detailed account of a conspiracy to transfer a specified amount of marihuana in order to avoid detection by the police. The informant set forth the mechanics of the transaction as follows: Acosta had been arrested recently on drug charges and feared that the police “were on to him;” Acosta called his girlfriend, Lola Schafer, and asked her to arrange to have thirty-three pounds of marihuana removed from his residence; Schafer then called “Donny” and arranged for Donny to pick up the marihuana from Acosta’s residence and transport it to Donny’s residence for storage.
Although it may have been possible for Officer Lehmann to corroborate even more of the information provided by the informant, we disagree with Pate that additional police investigation of the tip was required in order to support the issuance of a search warrant for 2853 Buttermilk Circle.14 Pate claims, for example, that prior to seeking a search warrant, the police should have made some effort “to track activities at Acosta’s residence or to inquire among the neighbors about unusual activity.” Based on the information in the affidavit, however, it was reasonable for the police and the issuing judge to assume that surveillance of Acosta’s residence would have been futile because of the strong likelihood that the contraband already would have been removed from Acosta’s residence.15 As the informant indicated, the reason Acosta arranged for the marihuana to be taken to Donny’s house was that Acosta recently had been arrested and feared that the police “were on to him” and would search his residence.
Pate next claims the police also should have verified that Acosta did in fact have a girlfriend named Lola Schafer and that Schafer actually was speaking with Pate during the conversation in question. Although we agree that independent corroboration of the relationship between Acosta and Schafer would have constituted additional evidence of the informant’s reliability, it was not a prerequisite to a finding of probable cause. See Gates, 462 U.S. at 246, 103 S.Ct. at 2336. Because several other facts provided by the informant, some of which could not have been easily obtained, were proven to be accurate, the issuing judge reasonably could have inferred from the information included in the affidavit that the informant’s allegations of criminal activity were reliable. Abeyta, 795 P.2d at 1327 (“[B]ecause an informant is shown to be right about some things, [s]he is probably right about other facts [s]he has alleged, including the claim that the object of the tip is engaged in criminal activity.”). Furthermore, any attempt by Officer Lehmann to verify the alleged conversation between Schafer and “Donny” almost certainly would have alerted the suspects that the police were investigating their activities. We disagree with Pate’s suggestion that the police were required, as a prerequisite to a finding of probable cause, to jeopardize their entire investigation in order to verify a particular factual detail provided by an informant. Such a rule would be unreasonable and would give the police a strong incentive to resort to warrantless searches. See Id. at 1327-28.
Pate’s final claim is that anonymous informants are “inherently unreliable” and that, in cases involving anonymous tips, this court should require the police to do “extensive” corroboration before probable cause will be
III
We will now address the People’s argument that the trial court erred in finding that section
Article III of the Colorado Constitution provides:
The powers of the government of this state are divided into three distinct departments—the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
In construing Article III, we have held that the separation-of-powers doctrine “imposes
The question before us in this case is thus whether section
Section
Immediately upon a plea of guilty or nolo contendere or a verdict of guilty by the court or a jury, to an offense for which revocation of a license or permit is mandatory pursuant to section
42-2-122(1)(i) , the court shall require the offender to immediately surrender his driver’s ... license or instruction permit to the court. The court shall forward to the [Department of Revenue] a notice of plea or verdict ..., together with the offender’s license or permit, not later than ten days after the surrender of the license or permit.
The Department of Revenue is assigned by statute the duty to enforce the provisions in section
It is axiomatic that the judiciary has the exclusive power to impose sentences which fall within the limits determined by the General Assembly. People v. Montgomery, 669 P.2d 1387, 1390 (Colo. 1983); People v. Schwartz, 823 P.2d 1386, 1386-87 (Colo. App. 1991). In this case, the General Assembly specifically included the power to seize the driver’s license from an offender and to forward it to the Department of Revenue within the range of sanctions available to trial courts when sentencing persons convicted of certain drug offenses. See Zinn, 843 P.2d at 1353-55 (describing the license revocation and forwarding provisions as “sanctions designed to prevent criminal conduct and to punish persons who engage in criminal conduct”). Thus, a trial court’s decision to seize and forward an offender’s license to the Department of Revenue pursuant to sections
Furthermore, the fact that a court, in exercising such authority, is “cooperating” with the executive branch in an effort to enforce the license-revocation statute does not mean that the judiciary is thereby “interfering” with those duties statutorily committed to the executive branch. Smith, 153 Colo. at 40-41, 384 P.2d at 741. Rather, the license-forwarding requirement in section
Accordingly, we reverse the trial court’s ruling that section
Justice LOHR concurs in part and dissents in part.
Justice ERICKSON joins in the concurrence and dissent.
Justice LOHR concurring in part and dissenting in part:
I concur in part III of the majority opinion concerning separation of powers. In part II of that opinion, however, the majority holds that the affidavit offered in support of an application for a warrant to search the residence of the defendant, Donald Hugh Pate, set forth sufficient facts to allow a judge to find probable cause for issuance of the warrant. The majority therefore concludes that the trial court properly denied the defendant’s motion to suppress evidence seized at his residence in execution of the warrant. I do not agree that the affidavit was sufficient to support a finding of probable cause, and therefore dissent to part II of the majority opinion.
I.
The affidavit for search warrant, signed on May 11, 1992, was based on a telephone tip from an anonymous caller (the caller), supplemented by police corroboration of some of the information in the tip and by some other facts obtained by police investigation. The caller stated that Michael Acosta had been
The police then corroborated certain of the information. The officer who executed the affidavit called 260-1716 and talked to “a female who identified herself as MRS. PATE, at the address of 2853 Buttermilk Circle.” A check of the utilities listing for 2853 Buttermilk Circle produced the names of Donald H. Pate and Anita C. Pate. The affiant officer checked a criminal history on Donald Hugh Pate and found “a traffic record but no criminal arrests.” The officer also confirmed that a Michael Acosta had been arrested on May 9, 1992, on New Mexico warrants for possession of marijuana with intent to distribute and that he had been arrested in 1985 in Arizona for conspiracy to sell marijuana and in 1980 for felony larceny and first degree trespass. The officer also confirmed that Acosta was at the El Paso County Criminal Justice Center. The affidavit gave a description of the dwelling at 2853 Buttermilk Circle, stated that it was in Colorado Springs in El Paso County, and requested a search warrant for that dwelling. Based on the officer’s affidavit, a judge issued the search warrant that is contested in this proceeding.
II.
I agree with the majority’s summary of the abstract principles of law that apply when making a probable cause determination in cases such as this, where the affidavit in support of the search warrant is based on information provided by an anonymous informant. It is in the application of those principles to the facts of this case that I differ with the majority.
In determining the existence of probable cause, we have abandoned the two-pronged Aguilar-Spinelli test2 in favor of the totality of the circumstances test formulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See People v. Paquin, 811 P.2d 394, 397-98 (Colo. 1991); People v. Pannebaker, 714 P.2d 904, 907 (Colo. 1986). Nevertheless, “[t]he totality-of-the-circumstances test does not lower the standard for probable cause determinations....” People v. Leftwich, 869 P.2d 1260, 1265 (Colo. 1994), and the two prongs of Aguilar-Spinelli—veracity or reliability, and basis of knowledge—remain highly relevant considerations in assessing the totality of the circumstances. People v. Turcotte-Schaeffer, 843 P.2d 658, 661 (Colo. 1993); see People v. Diaz, 793 P.2d 1181, 1183 (Colo. 1990) (“informant’s reliability, veracity, and basis of knowledge are still important factors to be considered in determining whether probable cause exists”); People v. Contreras, 780 P.2d 552, 556 (Colo. 1989) (basis of knowledge, veracity and reliability are important and are closely related considerations to be taken into account when determining if probable cause exists). Information within the affidavit for search warrant in the present case satisfied neither prong and failed to meet the ultimate test for the existence of probable cause: whether the affidavit supplied the judge with a substantial basis for concluding that a search would uncover evidence of wrongdoing. See Gates,
Because the person who supplied the information to the police was anonymous and provided the information by telephone, it is impossible in this case to assess the veracity of the informant or the reliability of her information from the telephone tip itself. There is no indication that the informant had ever provided reliable information on past occasions, and her statements included no admission against penal interest. See Paquin, 811 P.2d at 394, 398 (emphasizing that the affidavit contained a statement that the confidential informant had purchased narcotics from the defendant and, further, that the informant had previously provided information that resulted in a felony arrest); Turcotte-Schaeffer, 843 P.2d at 661 (admissions against penal interest have traditionally been relied upon as a means of showing that information is reliable). The veracity deficiency is compounded because the caller did not purport to have personal knowledge of the facts concerning the call from Michael Acosta to Lola Schafer or from Schafer to “Donny,” but said that they were supplied to her by a girlfriend “whose name she would not volunteer.” Intrinsically, there is nothing in the informant‘s call to the police to establish the veracity of the anonymous caller or the reliability of the information that she supplied.
Basis of knowledge was absent as well. The affidavit contains no information on the source of the caller‘s information that Michael Acosta was arrested on New Mexico warrants for narcotics violations. The entire story concerning a telephone call from Acosta to Schafer and the later call by Schafer to “Donny” asking Donny to pick up marijuana at Acosta‘s residence and store it at Donny‘s residence came from the anonymous girlfriend of the anonymous informant. The informant herself did not purport to have personal knowledge that this information was true.
I recognize, of course, that under the totality of the circumstances test, we do not accord independent status to veracity or reliability, and basis of knowledge:
Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
Paquin, 811 P.2d at 397 (quoting Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30). In this case, however, there is nothing in the telephone tip itself to demonstrate the veracity of the informant, the reliability of the information, or an adequate basis for the informant‘s purported knowledge. Therefore, absent some other sufficient indicia of reliability of the telephone tip, probable cause for the search is lacking.
The majority holds that police corroboration of several of the details provided by the informant is enough to compensate for the absence of demonstrated veracity or reliability and basis of knowledge and to satisfy the totality of the circumstances test. Where an informant‘s allegations are insufficient by themselves to establish probable cause, it may be possible to overcome the deficiency by corroborating the details of the tip through independent police work. Gates, 462 U.S. at 241-45, 103 S.Ct. at 2333-36; Leftwich, 869 P.2d at 1267-68. These details need not necessarily relate to criminal activity. Gates, 462 U.S. at 243-44 n. 13, 103 S.Ct. at 2334-35; Leftwich, 869 P.2d at 1268.
The focus of a court in reviewing an affidavit that relies on corroboration of non-criminal activity is the degree of suspicion that attaches to particular types of corroborated non-criminal acts and whether the
No degree of suspicion concerning the defendant could attach to the facts that were corroborated, nor does knowledge of those corroborated facts suggest a familiarity with the activities of Acosta or the defendant. Certainly, confirmation of a mere phone number cannot be said to suggest that the person who supplied the number was familiar with the activities of the persons to whom the number was listed. No other information confirmed by the officer had any connection with the defendant or his alleged criminal conduct. The allegation that the defendant had a relationship, direct or indirect, to Acosta or his girlfriend was never corroborated. Moreover, the facts that the officer verified, including the facts concerning Acosta’s arrest, were not difficult to obtain. “Facts that are easily obtained ... add little to the decision of whether probable cause for a search exists.” Leftwich, 869 P.2d at 1268.
The instant case is analogous to People v. Leftwich, which was decided by this court just a few months ago, in which we held that an affidavit in support of a warrant to search the defendant’s home did not establish probable cause. In that case, an anonymous letter was received by the Boulder Police Department. The letter gave information about a man whom the letter identified as “Jeff’ and described as “an active drug dealer.” Leftwich, 869 P.2d at 1264. It described the man and his car in some detail and informed police that the man collected drugs “at a music store located in Kansas City just North of the intersection of 39th and Main on the East side of the street. The collection times may coincide with the vacation times of the university in Colorado. The drugs are then taken to Boulder for resale.” Id.
Many of the non-incriminating factual details recited in the letter were independently corroborated by the police. They corroborated the description of the defendant, Jeffrey Leftwich, and the defendant’s automobile, including license plate number. They verified that the defendant was a student at the University of Colorado and had traveled in his van to Kansas City during spring break, and they also confirmed the existence of a music store located near 39th and Main in Kansas City—a “[k]nown ... high drug area.” Id. at 1264 n. 5.
Despite the corroboration, we determined that there was not a substantial basis for concluding that the defendant “was engaged in any illegal activity, let alone that drugs would be found in his house.” Id. at 1268. Even fewer relevant facts were corroborated in the present case. The majority distinguishes Leftwich on the basis that in the present case the information provided by the anonymous informant to the police established a nexus between the alleged illegal activity and the defendant’s home, a connection absent in Leftwich. Maj. op. at 692 n. 14. This overlooks the essential similarity that in Leftwich we also determined on a more detailed factual basis than present here that there was no probable cause to believe that the defendant was engaged in illegal activity.5
Justice ERICKSON joins in this concurrence and dissent.