*1 Nо. 25842 Ward, v. Mark A. Susan State Colorado Jones, and John Marshall
(508 1257) P.2d April 16, Decided 1973. *2 Tooley, Seccombe, Attorney, Dale W. District
Jarvis Attorney, Rodgers, Deputy, Frederic B. Brooke District plaintiff-appellant. Wunnicke, Deputy, for Rogers, Defender, MacFarlane, State Public J. D. R. Rollie Stephen Rench, Deputy, Deputy, Chief C. for defendants- appellees. opinion
MR. JUSTICE GROVES delivered the Court. attorney interlocutory appeal is an the district
This (as 1, 1971), pursuant April C.A.R. 4.1 from to amended on granting defendants’ motion a of the district court suppress evidence. to relating
On the basis of a affidavit provided large part by informant, separate an unidentified search Ogden warrants were issued Street, for 1377 Apartment and 930 E. 14th Avenue. #B Both addresses are building. located in the basement of Following the same warrants, execution of the charged three defendants were possession marijuana conspiracy with possess marijuana. suppress
The defendants moved to during evidence seized pursuant the search conducted ground to the warrants on the support affidavit in of the warrants failed to inform magistrate as to apartment in which the marijuana. informаnt had seen relating specific affidavit information as to when and where marijuana the informant had seen read as follows: my “On 10-3-72 present informant was inside the residence st. and 930 E. #B 14th ave. did (sic) observe narcotics plastic baggies.”
The district court ruled that the evidence should be suppressed, apparently ground on the above-quoted that the did sufficiently not identify specific the in which marijuana. the informant had seen We reverse.
I.
“prong”
The first
Aguilar-Spinelli
of the
test for
determining probable cause for issuance of a search warrant
provided by
based on information
an unidentified informant
is that
the
support
allege
affidavit in
of the warrant must
issuing magistrate
facts from which the
independently
can
probable
determine whether there is
cause to believe that
illegal activity
being
carried
in the place
on
to be searched.
Spinelli v. United
410,
393 U.S.
584,
21
(1969);
Aguilаr
Texas,
L.Ed.2d 637
and
v.
108,
378 U.S.
84
1509,
(1964).
S.Ct.
249 Aguilar- prong argue first of the People the that in by above-quoted sentence Spinelli satisfied test was meaning sentence is plain of the (1) because the affidavit: marijuana in both saw personally informant that reality (2) apartments in two were because the apartments; or commonly occupied residence. one “plain agree People that with
We cannot saw meaning” sеntence is that the informant of the meaning clarity The lack of in the apartments. in both pointed the district court which stated out sentence was in that he was advised officers that “the informant them, of the two or and sоmewhere within one residences support other, both, or the I’m not sure....” or one meaning” argument, People v. “plain People cite their Clark, (1971) People 565 v. Colo. 488 P.2d 175 MacDonald, (1971). P.2d Colo. 555 Neither Clark, factually People case. In case similar to this both MacDonald, supra, People supra, location one was question there as to the location involved and was no drugs. where the saw
II. agree People above-quoted We do with the that satisfy prong of the sentence in the affidavit would reality, were, if Aguilar-Spinelli test the two addresses Alarid, commonly occupied residence. Cf. 289, 483 P.2d made Colo. district court no regard finding in this and it is not clear whether this argument even made to the court. the affidavit a common
We hold does show said occupancy. The affidavit stated that the informant in the of a addresses are located basement two open; building; all of the doors basement doors; and no numbers or letters on the that there were “living sleeping are parties named the affidavit *4 apartments.” previously Officers had each of who #B, Street, Apartment warrant at 1377 executed a or on the there were no numbers letters doors related that no and that there were locks on the doors. the basement assumption On the occupancy” the “common argument was not made to the trial suppression court at the hearing, believe we that fairness to the requires defendants they given opportunity be refuting an to introduce subject. evidence on the If the district court finds that the premises reality commonly occupied residence, deny then it must the defendants’ motion to suppress. Otherwise, granting of the motion should stand.
III. argue The that, defendants here even if the affidavit satisfy does prong of the Aguilar-Spinelli test, the — prong i.e., was not satisfied the affidavit failed to set forth sufficient magistrate facts to allow the to determine independently whether the informant was credible or his Peoрle Peschong, information reliable. v. supra. disagree. We police affidavit included a statement the affiant provided by officer information had proven past reliable on “at least 2 recent oсcasions which People resulted in narcotics arrests and . .” seizures . . In Peschong, supra, reliability we held that by, among unidentified informant had not been established things, other a statement in the affidavit that the “informant given has рrior reliable information on at least 3 occasions.” Peschong, might we stated that the affidavit have indicated the nature previously given by of the information informant and whether such information led to arrests or рroved convictions or case, otherwise to be true. In this previous affidavit did indicate supplied by the informant had led to narcotics arrests and seizures. We view the statement in this affidavit to be sufficient reliability People establish the Peppers, informant. Schmidt, (1970); 172 Colo. is reversed and the cause remanded for proceedings expressed consonant with the views herein. DAY,
MR. JUSTICE MR. JUSTICE LEE and MR. JUSTICE ERICKSON dissent. dissenting:
MR. JUSTICE ERICKSON
251
the affidavit
An examination of
respeсtfully dissent.
I
two
that
there were
unequivocally shows
warrants
search
two
police
that
there were
and that
knew
apartments
1377
executing
search warrant at
an earlier
apartments.
B,
police
there wеre
Street,
Apartment
noted
Therefore,
in this instance
separate apartments.
two
warrants,
each
sought
two
one for
police
and obtained
places
affidavit
several
in the
Reference was made in
address.
B,
Ogden Street, Apartment
930 East 14th
to 1377
clearly
who
The affidavit also
indicates
Avenue.
the clear
occupants
apartment.
In view of
were of each
existed,
need
recognition
seрarate apartments
two
People v.
disputed.
separate warrants cannot be
for two
Alarid,
(1971); People v.
289, 483
Colo.
P.2d 1331
174
(1970). Moreover, the
Avery,
315,
Colo.
standards,
source is set forth for some of
because no
probable
upon
cause.
which
relied
to establish
A
statement attributed to an informant established
marijuana
plastic baggies
of
was seen
apartments,
not disclose where or in
but the affidavit does
mаrijuana
plastic baggies containing
which
apartments
both
cannot
seen. Probable cause to search
upon
predicated
be
an informant’s observation of contraband
apartments.
Moorе v. United
461 F.2d
(D.C.
1972).
Cir
probable
The determination
cause must meet
Texas,
Aguilar
108,
two-prong test
forth in
378 U.S.
set
Brethauer,
(1964),
S.Ct.
overlooked. For of who are called warrant, to a following issue seаrch we offer reminder: review “3.1 Issuance or warrants. of judge upon “Whenever a trial is called to issue a warrant for search, or arrest for or to review the issuance such of a thereof, warrant or the carefully execution he should observe statutory constitutional and permit norms and not these procedures perfunctory to become mechanical or . . . .” Bar Association [American Standards Criminal Justicе for Relating Judge. to The Function the Trial ] of Court, Camara Municipal U.S. (1967), 18 L.Ed.2d Court said: investigation, a criminal police may “[I]n undertake to specific goods. recover stolen or public contraband But that hardly justify sweеping interest would an search of entire city hope goods conducted in might that these be found. Consequently, goods, a search for warrant, these even with a ‘probable is ‘reasonable’ when there is causе’ believe to ” they dwelling. will in a particular be uncovered [Emphasis added.] properly
A warrant could have been issued to search for where it seen informant, but not elsewhere.
The trial court has determined thаt
there were two
apartments, and
finding
upon
the trial court’s
is binding
us.
Hinton,
United
States v.
supra; Keiningham v. United
(D.C.
1960).
D.W. Beach, Members Individually and as Arnhold, M. Rose of Voters of the “Association Representatives The Walker Colorado,” Association Unincorporated *7 Body Authority, a Colorado Field, Airport Public Colorado Colorado, Junction, Politic; of Grand City Corporate County The Board of Corporation; Municipal A County, Colorado of Mesa Commissioners 1245)
(508 P.2d April 16, 1973. Decided