*1 No. 25985 of the State of Colorado v. Bowles, Treadway, Douglas Kim H. T. Adams Gary George L. (512 275) July 16, Decided 1973. A. Meveren, Attorney,
Stuart Van Schall, District Loren B. Assistant, Harry McCabe, Deputy, L. for plaintiff-appellant. Saint-Veltri,
Davies and Joseph Saint-Veltri, for defend- ants-app ellees.
En Banc.
MR. JUSTICE GROVES opinion delivered Court. Attorney appeal by the District interlocutory is an This 1971) from (as April 1, on 4.1 amended C.A.R.
pursuant motion granting defendants’ court ruling the district *2 ruling. disapprove We the suppress evidence. which in the search warrant under was seized evidence containing the follow- upon an affidavit predicated
turn was ing statements: advise the confidential, informant did reliable a
“1. That forty-eight prior the immediate person, that within in affiant a observe personally see and hours, did the informant marijuana in the commonly as substance, known narcotic Roosevelt, Larimer, County of as 308 North premises known Colorado; State of by an of the advised officer
“2.
the affiant was
That
a
had on
Department
that
the informant
Police
Loveland
months, supplied
occasion,
past
the
fourteen
previous
within
Department
Police
the Loveland
reliable
concerning marijuana;
was accurate and
that said information
arrest
conviction of an individual
resulted in the
drug;
narcotic
Gary
a
that a
Bowles and
“3. That
the informant
related
premises.
an
Treadway
at the
That
Kim
lived
above-named
advised the
Department
Police
of the Fort Collins
officer
Investigative
a
of the
check with the
Division
affiant
that
a
University
Department
State
Police
revealed that
Colorado
Treadway
a
by the name Kim
had listed address
student
Collins,
Roosevelt,
Colorado;
308 North
Fort
Reed,
herein,
“4.
Howard L.
the
is
Police
That
affiant
City
Fort
Department,
of Fort Collins Police
Officer
assigned
Collins, Colorado, and is
to the Narcotics Bureau
by
execute
in
and is authorized
law to
Search Warrants
the
County
of Larimer
State Colorado.”
ruling by
predicated
upon People
solely
the
was
court
(1973),
Peschong,
wherein
29,
241 Peschong gives judges plenty in “The Case trial this State doing testing against of alarm. I am What this affidavit paying any affidavit in and I am not attention in making ruling Peschong to what this as said about some Peschong contained Supreme matters in it. The Court said Testing not affidavit, a sufficient affidavit. which is held by Supreme against our Court not to be sufficient Court, affidavit reluctantly now before this the Court sustains suppress, the motion to for the reason that affidavit now before the Court much, does not contain as opinion, this Court’s justify would authorize to issuance of a warrant Peschong.” as what was set forth in suppression hearing
Since the 30, was held on March 1973, the court did Ward, not have before it 246, Colo. announced April 16, on 1973. In Ward we ruled that the suppress motion to should have been denied, gave and we some Peschong. clarification to Peschong affidavit in only generalities contained and conclu sory by statements *3 police affiant officer. The affidavit in Ward contained permit sufficient facts to finding a that the informer regard was reliable. We the affidavit here as also containing sufficient facts to finding a reliability. Peschong affidavit stated that “given the informant had reliable information on at least prior three occasions.” No given clue was as to what kind of given. information was No statement was made that the information any led to arrests or convictions.
In 2 paragraph contrast of the affidavit here related that given previously informant had relating information to marijuana, and that the information resulted in the arrest and possession conviction an individual for drug. of a narcotic points The defendant out that there lapse was a 14 month in time between the provided information by the informant which resulted in the arrest and conviction person for possession drug, of a narcotic and the provided information by the informant Although in this case. may there be significant circumstances in which a lapse of time in providing might information affect a court’s determination of 242 a be such view this to reliability, do not we
the informer’s case. direc- with remanded and the cause
Ruling disapproved suppress. to deny the motion tions to dissents. ERICKSON JUSTICE MR. dissenting: ERICKSON
MR. JUSTICE dissent. respectfully I number two in that statement majority holds opinion for the facts forth sufficient case sets affidavit in this that independently determine magistrate
issuing
to
magistrate
requirement
that
reliable. The
informer
reliability of the informant
independently determine
hearsay
considering
is based on
an affidavit which
when
Aguilar-
of the well-known
part
is the second
Texas,
Aguilar
108, 84 S.Ct.
378 U.S.
Spinelli rule.
States,
U.S.
(1964);
v. United
Spinelli
12 L.Ed.2d
(1969);
584,
Statement smidgen of fact. Based on statement only a concrete provides magistrate independently conclude two, no could number analysis of An statement the informant was reliable. (1) hearsay two That there is conclusion number shows: supplied the informant once “reliable” information (2) concerning marijuana. That there the conclusion set supplied that whatever information was was “accu- forth (3) rate.” That the information said have “resulted” in of some conviction of some individual narcotic drug. affidavit, support allegations said in the which are magistrate’s finding independent reliability
informant, give magistrate specific truth, no concrete *4 upon independent judgment. an facts which to base The accept judgment judge simply police the is asked the gave reliable, which once accu- informant rate, and in the conviction of resulted some unnamed magistrate individual. Once accepts conclusions, the these he proceed is asked to particular general from the to the and then conclude that consistently the informant reliable, although the affidavit forth no set facts which establish that the informant is reliable. majority supra, relies on v. where we general conclusory
held
by
statement
the affiant
police
provide
necessary
did not
officer
factual basis for
magistrate’s constitutionally
independent
mandated
reliability
However,
determination
of the informant.
majority
feel that
details
the affidavit in issue
dignify the officer’s
required
conclusions and establish the
magistrate’s independent
factual basis for the
decision. In the
case,
magistrate
instant
was told that the information
previously given
marijuana
concerned
and that the informa-
tion had resulted in a conviction of some individual for
drug.
of some narcotic
He was not told what the
concerning marijuana
informant said
nor was he told what
the connection was between the information and the
“resulting”
State,
See
conviction.
347,
16 Md. App.
Kraft
(1972).
A search warrant authorizes a serious invasion of a citizen’s
privacy. The
magistrate
neutral and detached
has the sacred
duty of determining
probable
whether
cause exists to
right
override the constitutional
privacy
citizen to
security in his home
Coolidge
and habitation.
New
Hampshire,
443,
403 U.S.
91 S.Ct.
“Whenever a trail called to issue a warrant for search, arrest or for or to review the issuance such a thereof, warrant or carefully the execution he should observe *5 statutory and not these norms constitutional . . . .” perfunctory or to become mechanical procedures ruling of stated, uphold I would the reasons For court. trial
No. 26006 v. Industrial Commission Jr. Anaya, Frank Floyd Noffsinger of the State of Colorado (512 625) July 16, 1973. Decided