*1 present testimony specifically any direct question materiality,

addressed to she under circumstances

obligation to do so. The clear inference presented by

drawn from the evidence believed,

prosecution, alleg- if is that the

edly false statement of Scott before the

small court could have affected the claims

outcome case. reasons, judg-

For these we reverse

ment of and remand this the district court

case to that with directions to rein- court charge against perjury

state the Scott.

ROYIRA, J., participate. does Colorado, PEOPLE of State

Plaintiff-Appellant,

Billy QUINTANA and Dawnette Teresa

Quintana, Defendants-Appellees.

No. 89SA250. Colorado,

Supreme Court of

En Banc. 12, 1990.

Feb. Sandstrom, Atty.,

G.F. Dist. James S. Whitmire, Atty., Asst. Dist. and David K. Gardner, Pueblo, Deputy Atty., Dist. plaintiff-appellant. Losavio, Jr., Doyle

Law Offices of J.E. T. Johns, Jr., Pueblo, defendants-appel- lees. QUINN

Chief Justice delivered the Opinion of the Court. interlocutory appeal,1 In this challenge suppression the district court’s plants, drug paraphernalia, 4.1, appeal ruling pursuant terlocutory appeal 1. This is filed to C.A.R. from a of a district prosecution granting suppress which authorizes evidence. to file an in- motion

935 Quintanas during a The caller stated that the were evidence seized items of numerous using “grow-lights” artificial electric as a a The district pursuant to warrant. search supplying light to the supporting means of marihuana court ruled that plants irrigating also to and were was not sufficient the search warrant through irrigation automatic for search. with use establish of a timer. informant told the suppression ruling. reverse We Quintana had Billy begun to detective I. plants and to sell marihua- harvest the na. defendants, Quintana Billy and Daw- Quintana, charged in the District nette are receiving call, telephone Lan- After County possession with of of Pueblo County went tax to the Pueblo cendorfer marihuana, eight ounces or more of cultiva- 8, 1988, office on November and assessor’s marihuana, conspiracy and to culti- tion of at 321 Lucille learned that residence charges direct- vate marihuana. The stem square a approximately 698 feet with of a ly from evidence seized course couple detached shed and was owned a and residence the defendants’ Lubbock, residing in Texas. Based on his Avondale, garage detached 321 previous training experience, and Lancen- 11, Colorado, on November 1988. growing aware dorfer was marihuana area, enclosed as a an and covered such 1988, 10, Rich- On November Detective shed, garage lighting Lancendorfer, assigned to the ard who adequate irrigation. well as The affida- De- of the Pueblo Police narcotics bureau that the most common sources vit recited County partment, with the Pueblo filed lighting of artificial for marihuana cultiva- support of a search high wattage sodium metal tion are warrant, along numerous attached lights positioned which are halide above documents plants, regulated by timing normally are a requested searched. The affidavit produce prod- in order to a uniform device single judge to issue a warrant to search a uct, and result in substantial increases garage at family dwelling and a detached usage. Lucille, Avondale, Colorado, mari- electrical for huana, implements paraphernalia and other investigation of marihua- Lancendorfer’s production used manufacture reported to Pueblo cultivation was na marihuana, personal proper- and articles Jury, grand jury and a Statutory Grand identity ty establishing persons was served on Cen- subpoena duces tecum The affidavit re- control “any all Company Electric tel following cited the facts. pertaining customer identifica- records 4, 1988, usage amounts” for the re- November Lancendorfer tion

On [electrie] The electric utili- phone at 321 Lucille.2 a call from residence ceived caller, were attached affidavit. ty the detective that records who told wife, records Quintana, summarized contents Quintana and his Dawn follows: the electric service separate a were as growing Quinta- name of Dawn ga- side of detached residence room south 5, through Novem- Quintana November behind the na from rage that was located usage per Avondale, average at 321 Lucille in Colorado. ber home necessary grand subpoena for its deliber- statutory ‘all evidence that the 2. The affidavit recites 533, Losavio, Robb, 195 Colo. Jr. v. jury notified ations’". 536, for the Tenth Judicial District was 1152, (1978) (quoting A. v. P.2d investi- Detective Lancendorfer’s marihuana of gation 315, Court, 191 Colo. authorized a Dist. on November Quintanas' the issuance of Crim.P. 6.1 authorizes subpoena for the duces tecum subpoena jury tecum in accordance grand duces The defen- from Centel Electric Co. records expressly empowers a argue Crim.P. electrical dants in their brief usage their attorney “compel the attendance improperly prosecuting obtained records were tangible production of evi- argument. grand jury. witnesses no merit We find rule, subpoena upon of a grand jury given service them general dence ”[A]s appear examination.” investigatory powers and is entitled broad support finding through November Au- cient on its face to month from kilowatt-hours; cause. gust 1988 was 7, 1988, September the electric August 5 to hearing legal arguments on the After *3 1,675 kilowatt-hours; usage from rose affidavit, sufficiency of the the district 5, 1988, September 7 to October the electric Relying the evidence. 1,333 kilowatt-hours; usage and from was principally “totality on the of circumstanc- 3, 1988, usage October 5 to November adopted in es” test Illinois v. 1,011 supervisor at A kilowatt-hours. informed Lancen- Company Centel Electric pertinent part in court ruled average usage for a dorfer that the electric follows: Lucille, assuming residence the size of 321 Considering totality of the circum four, 400 and family would be between requirement stances and the that doubts A Electric Com- 600 kilowatt-hours. Centel in issuing resolved favor of the pany employee also informed Lancendorfer Judge’s determination that the affidavit investigation” that no “customer initiated sufficient, this Court nevertheless regarding the increased elec- had been filed concludes the affidavit was not suf usage tric at 321 Lucille. Lancendorfer’s support probable ficient to cause to be sepa- stated that on three affidavit further contraband lieve that would be found at May May rate from 1987 to occasions Lucille, Avondale, Colorado. The vari- he executed three search warrants for anonymous source of the caller’s infor ous residences in Pueblo and that each unknown, mation is and when he ob instance marihuana was cultivated inside tained the information is unknown. lighting the residences However, ap the information would not lights. lighting, This artificial halide stale, pear electricity to be because electric records for two shown high remained at least until No residences, abnormally consumed 3, 1988, vember one week before the high electricity. amount of search warrant was issued. The affida The affidavit further described how Lan- vit is deficient the amount of detail cendorfer, caller, receiving anonymous provided by anonymous after which call, by independent telephone to the residence at 321 was corroborated investi drove officer, garage, gation by affiant-police espe a detached observed doors, cially compared and to the locked located behind to the amount of supplied north of the residence and saw an unidenti- in the Pannebaker working pickup [People fied Ford case v. 714 P.2d male on blue (Colo.1986) Lastly, parked truck that was front of the resi- unlike the Var ]. Varrieur, [People dence. Lancendorfer determined that the rieur (Colo.1989)], plate pickup caller license on Lucille, Avondale, information, Billy Quintana supplied prior of 321 Colorado. had been confirmed as reliable. county judge issued a search war- II. rant on November 1988. Detective The Fourth Amendment to the Lancendorfer and other Pueblo offi- Unit ed Constitution and article sec cers executed the search warrant States plants, prohib day same and seized marihuana tion 7 of Colorado Constitution except lighting equipment, an electric its the issuance of a search warrant transformer, heater, upon probable supported by oath or an electric timer and particularly describing parapherna- affirmation assorted marihuana cultivation lia, objects place to be searched or the to be and several documents Quintanas’ probable-cause seized. The standard seeks interest safeguard suppress only “to citizens rash defendants moved to evidence priva and unreasonable interference with grounds seized on the attempts give leeway “to fair supporting cy,” was insuffi- but also the search warrant “veracity” or “reliabili- community’s enforcing the law the knowledge”.... his Hearty, ty” “basis protection.” (Colo.1982)(quoting Brinegar against persuasive arguments There are according these two elements such inde- United (1949)). 1302, 1311, Probable Instead, 93 L.Ed. 1879 they are better pendent status. an affidavit for a search cause exists when considerations as relevant understood alleges sufficient facts to warrant warrant totality-of-the-circúmstances reasonable caution to believe person probable- traditionally guided criminal ac evidence of that contraband or deficiency in one cause determinations: searched. tivity place is located for, compensated may be *4 P.2d at 309-10. Hearty, 644 tip, by strong reliability of a the overall other, or some showing as to the this court followed the For some time reliability. other indicia by the United developed test two-pronged MacDonald, based on for the issuance of mous People v. States issue 378 U.S. (1964), (1969),in following two 506 P.2d 1232 1982); Colo. 410, informant established Supreme People 108, required a court to resolve the 89 S.Ct. Conwell, 649 P.2d 1099 Spinelli two-pronged 482 P.2d 369 173 Colo. 84 S.Ct. questions: (1973); People v. Peschong, cause v. United 584, provided by an 1509, whether by answering the Aguilar first, probable cause warrant. 12 L.Ed.2d 480 P.2d 555 181 Colo. whether the an affidavit Brethauer, States, 393 Aguilar- People v. anony Texas, (Colo. E.g., basis for ... would ble-cause review of Reflecting long as the rant the Fourth more.... We think is the traditional cause determinations cedure and is more standard better encouraging recourse to n process, two-pronged test. uncover evidence of determination has been n [the] magistrate had a “substantial deference to the the traditional issuing magistrate’s concludpng]” that a search Amendment ^[*] preference serves the reaffirmation of consistent with our n magistrates the warrant requires for the war- standard for wrongdoing, purpose of ^[*] probable- that so ^[*] than pro- this that evidence of criminal which the second, found to determine ible quate sufficient dently whether the informant or his information is reliable. basis whether contained sufficient information to enable the judge whether the informant knowledge place could affidavit contained determine for his activity will be searched; and had an ade facts from allegation indepen is cred judge the-circumstances minations. In its [W]e our decisions ally has informed (cid:127) ^[*] n “two-pronged conclude that place we reaffirm the ^{[*] [*] [*] [*]} Aguilar analysis that tradition- it is wiser to abandon probable-cause deter- test” established ^{[*] [*]} # ^[*] totality-of- Spinelli. sk ^[*] 586-87; 412-13, at 393 U.S. is issuing magistrate The task 84 S.Ct. at 378 U.S. Aguilar, practical, common simply to make a Dailey, whether, given all the cir- sense decision (Colo.1982). the affidavit be- set forth in cumstances “veracity” him, including fore In Illinois v. supply- knowledge” persons “basis the Unit- L.Ed.2d 527 information, there is a fair hearsay Supreme Court abandoned ed States evidence that contraband probability two-pronged test and particular in a found totality-of-the-cir- crime will be place the of a adopted in its reviewing court test, duty of a offering following ob- place, cumstances magistrate support simply its decision: to insure that is servations for,... conclud- a “substantial basis “two-pronged test” directs [T]he cause existed.... ing” that channels— largely independent into two flexible, Thus, (1960)). even if an affi easi- We are convinced that the basis for the davit does not establish achieve ly applied standard will better knowledge of the informant’s public private the accommodation of veracity activity criminal or the of the re re- interests that the Fourth Amendment information, ported police corroboration of quires approach that than does the parts those of the information that obvious Spinelli. developed Aguilar ly relate to and describe criminal activities 233, 236-38, 462 U.S. at may properly probable- be considered (citations omitted).3 2331-32 determination. totality-of-the-cir Under Although we are to follow the test, cumstances the fact that decisions of the United States reciting account of criminal an informant’s resolving search and seizure establish the informant’s does not claims under the United States Constitu- prob is not fatal to the basis of tion, we are not bound such decisions determination, long so as the able-cause interpreting article section 7 of the Colo- sufficiently informant’s statement de We, however, previous- rado Constitution. judge reasonably tailed to allow a con *5 ly adopt totality-of-the- have elected to the clude that the informant had access to reli in circumstances test formulated Gates illegal able information about the activities construing the search and seizure clause of Gates, police. he to the See People the Colorado Constitution. v. 462 U.S. at 103 S.Ct. at 1 W. Pannebaker, (Colo.1986); 714 P.2d 907 LaFave, Seizure, 3.3(e), at Search and § Varrieur, People accord v. 771 P.2d 895 addition, greater signifi In (Colo.1989). Accordingly, inquiry the police cance is accorded to corroboration totality this case is whether the of facts Agui under the test than under the alleged in the affidavit established reason- lar-Spinelli standards. The court grounds able to believe that marihuana and Gates, example, acknowledged po for illegal drug other evidence of activities facts, lice corroboration of some of the premises would be found at arguably satisfy while question searched. It is to that we now “veracity prong” nonetheless turn. can reduc contribute “ III. prevari ‘the chances of a reckless or ” tale,’ and, cating if the corroboration is acknowledge, We as did the district court “ extensive, sufficiently provide can ‘a sub ruling, that the Lancendorfer affida- its ” crediting hearsay stantial basis’ degree vit does not contain the same Gates, statement of informant. present detail as was in the affidavits ana- (quoting at at 2335 lyzed in People v. 714 P.2d 257, 269, 904, Varrieur, v. 362 U.S. People Jones United 771 P.2d 895. 725, 735, 736, differences, however, 4 L.Ed.2d these 697 We do not view significance 3. The facts of Gates illustrate the confirmed that Lance Gates had a reservation to 5,May totality-of-the-circumstances fly police test for to West Palm Beach on flight, ble cause determinations. In the Bloom- surveillance established that he made the Illinois, ingdale, police department received an took a cab to a motel and entered a room name, stating letter that Sue and Lance in his wife’s and the next living selling drugs” morning departed family car with a wom- Gates "make their on $100,000 drugs highway presently used “have over worth of an and drove on an interstate Chicago. buys of their are travelers to A search warrant for the their basement” ”[m]ost upon car and house was issued an affida- done in Florida." 462 U.S. Gates’ facts, reciting police suc- S.Ct. at 2325. The letter further stated that their vit the above purchase cessfully The was for the wife to drive executed the warrant. trial method of evidence, Su- and leave the car to be and the Illinois their car to Florida suppression ruling up drugs, preme "loaded then Lance flies down Court affirmed the back,” driving satisfy failed to the "basis and drives it and that “the wife is because the affidavit "veracity reliability” May knowledge” and Lance will be down to Florida on flying back,” days prongs Aguilar-Spinelli. The United States in a few to drive [the car] down reversed, rejecting Aguilar- at which the trunk of the car will be time $100,000 drugs. in the text. test for reasons stated loaded with over using “grow-lights” sup probable cause fatal to the existence of ply light test to the marihuana and were totality-of-the-circumstances under the using timing irrigate and Varrieur device Pannebaker of Gates. Both reasonably suggests totality-of-the-circumstances plants. Such detail applied specific allegations of the affida- that the informant access reliable cases, and illegal in those vits under consideration information about as a reported. decision was intended bench- neither which he containing requirement for affidavits mark totality-of-the-circumstances Under fact-spe- an informant’s disclosures.4 test, specific disclosures of infor- totality-of-the-circum- cific nature of weighed along mant must with all other any reading analysis refutes such stances allegations in the affidavit to determine those cases. whether there is substantial basis crediting the informant’s statements. We are satisfied that lengthy affidavit contains a recital of inves- analyzed totality- police work which corroborates tigative “in a test and read of-the-circumstances fashion,” supplied by the information much of and realistic common sense Unit Ventresca, Specifically, the es- informant. 108- ed States Detective Lancendorfer was 741, 745-46, tablishes that Ball, verify that the residence able to occupied (Colo.1982), to Lucille Dawn probable cause establishes Quintana, informant, reported by Avon- garage or dale, that there was a detached shed Although the affidavit Colorado. *6 residence, to of as behind and the north the a direct statement estab does not contain informant, by to the also told the detective lishing the of the informant’s knowl source parked that a vehicle in front of the the and edge respect with to marihuana cultiva Quintana Lucille, was to it contain a de residence tion at 321 does at 321 Lucille. Detective Lancendorfer of manner in which description tailed the investiga- independent also determined illegal activity being out. that carried affidavit, tion, affidavit, dur- as described that According the the informant to preceding three months the electri- grown in a the stated that marihuana was the usage at 321 Lucille had exceeded end of a de cal separate room at the south usage during the the and three times garage, which located behind two tached preceding that Quintanas’ nine months and house Avon- the investigation dale, Colorado, Quintanas initiated an to and the customer had that Pannebaker, judge police days. county a detec- A issued warrants 4. In residences, alleged police that an informant told tive's affidavit two officers seized for the growing mari- that Pannebaker was plants him John and other evidence numerous specifically described residences huana two growing operation. The trial of a marihuana County. that in Boulder The informant stated both the evidence seized from “re- both residences within the he had been in Agui- two-pronged test the of residences under plants past” cent and observed marihuana reversing suppression lar-Spinelli. the rul- In special lights, growing rooms lit with one of ing, we that under Gates elements remarked being growing on the second floor in one rooms knowledge of informant’s basis the attic in the other. The residence and in reliability, as the informant’s veraci- as well police that all also related to the informant closely simply ty, in- “should be understood growing room on the second floor windows may usually illuminate the issues that tertwined coverings in covered with dark window were common-sense, practical question whether there prevent keep room order to anyone warm 'probable or to believe that contraband cause' looking from inside. affidavit particular place.” in a evidence is located residence, one that officer drove to stated Although the at 907. Pannebaker a Pannebaker’s name was on determined that allegation establishing the specific a contained unopened mail ad- mailbox which contained knowledge, finding our of informant’s basis and observed that dressed primarily upon predicated were of this residence covered windows description of the il- detailed covering. plastic The offi- and reflector black independent legal corrobora- affidavit, cer, according confirmed investigation resulting past" tion infor- that "recent to which the fact thirty preceding mant referred was within (1964); in- v. United the source of this dramatic determine verifica- crease.5 Detective Lancendorfer’s Pannebaker, 714 P.2d People v. see also description of dramatic tion of detailed J., (Colo.1986)(Lohr, specially 908-09 Quintana’s increases concurring). during preceding three months lends that the credit to the informant’s statement Quintanas growing marihuana an affidavit contain sufficient garage on the inside the detached judge that the to allow the to determine through “grow-lights.” the use of electrical had an basis of knowl- informant edge for the information Supreme Court’s observation in- or that the the informant was credible ap- affidavit under consideration Gates Spinelli, 393 U.S. formation was reliable. Although the plies equal force here. In 89 S.Ct. at 586-87. type “may well be Supreme abandoned this two- necessary ‘reliability’ ‘veracity’ to satis- or prong approach and held that these two ‘veracity prong’ of fy some views requirements “are better understood as rel- it suf- Spinelli,” we are satisfied that does totality-of-the- evant considerations in the practical, judg- fice “for the common-sense traditionally circumstances making probable-cause ment called for probable-cause guided determinations: Gates, 462 U.S. at determination.” deficiency may compensated in one conclude that 103 S.Ct. at 2335. We thus for, reliability the overall analyzed in this other, tip, by strong showing totality-of-the-circumstances test under the reliability.” indicia of some other establishes cause for at 2329. of a search warrant. the issuance Although suppression ruling and We reverse the rejected rigid basis of the case to the district court for remand reliability requirements Aguilar- proceedings. further it that “an informant’s stressed ‘veracity,’ ‘reliability,’ and ‘basis knowl- concurs, LOHR, J., specially *7 edge’ highly are all relevant.” 462 U.S. at ERICKSON, J., joins special 230, 103 S.Ct. at 2328. I concur in the concurrence. majority's judgment I because believe specially concurring: Justice LOHR provided detail the informant indicated agree majority I with the that Detective basis Lancendorfer's affidavit established strongly tended to electric records analyzed under the “totali- ble cause when report the use confirm the informant’s ty of circumstances” test of Illinois v. high-energy “grow-lights” thereby provided sufficient indicia of the infor- adopted L.Ed.2d which we reliability. mant’s determining probable cause under article J., ERICKSON, special joins in this 7, of the Constitution section Colorado concurrence. Pannebaker, 714 P.2d 904 (Colo.1986). separately empha- I write importance

size the continued of the consid-

erations embodied Texas,

two-prong Aguilar v. test. See 1509, 12 L.Ed.2d that, acknowledged although ruling expressly 5. Detective Lancendorfer’s corroboration usage during Quintanas’ electric the three did not tell Detective Lancendor- the informant along preceding report, the informant’s months he obtained his information about fer when Billy Quin- with the informant’s statement that high marihuana cultivation at 321 "currently" begun and sell tana has to harvest prior usage up to November one week marihuana, dispel any serves to notion that search, indicated that conveyed by the informant was the information was not stale. timely fresh. The district court in its