Opinion
No. 25985
Decided July 16, 1973.
Interlocutory appeal by the district attorney from a ruling of the district court granting the defendant's motion to suppress evidence.
Ruling Disapproved
1. SEARCHES AND SEIZURES — Affidavit — Facts — Marijuana — Informant — Reliable — Lapse in Time. Where affidavit related that informant had previously given information pertaining to marijuana and that such information resulted in arrest and conviction of an individual for possession of a narcotic drug, held, under the circumstances, affidavit may be regarded as containing sufficient facts to permit a finding of reliability to justify issuance of warrant, notwithstanding fourteen-month lapse in time between information provided by informant which resulted in arrest and conviction and information by informant in instant case.
Interlocutory Appeal from the District Court of Larimer County, Honorable Conrad L. Ball, Judge.
Stuart A. Van Meveren, District Attorney, Loren B. Schall, Assistant, Harry L. McCabe, Deputy, for plaintiff-appellant.
Davies and Saint-Veltri, Joseph Saint-Veltri, for Defendants-appellees.
This is an interlocutory appeal by the District Attorney pursuant to C.A.R. 4.1 (as amended on April 1, 1971) from a ruling of the district court granting the defendants' motion to suppress evidence. We disapprove the ruling.
The evidence was seized under the search warrant which in turn was predicated upon an affidavit containing the following statements:
"1. That a confidential, reliable informant did advise the affiant in person, that within the immediate prior forty-eight hours, the informant did personally see and observe a narcotic substance, commonly known as marijuana in the premises known as 308 North Roosevelt, County of Larimer, State of Colorado;
"2. That the affiant was advised by an officer of the Loveland Police Department that the informant had on a previous occasion, within the past fourteen months, supplied reliable information to the Loveland Police Department concerning marijuana; that said information was accurate and resulted in the arrest and conviction of an individual for possession of a narcotic drug;
"3. That the informant related that a Gary Bowles and a Kim Treadway lived at the above-named premises. That an officer of the Fort Collins Police Department advised the affiant that a check with the Investigative Division of the Colorado State University Police Department revealed that a student by the name of Kim Treadway had a listed address of 308 North Roosevelt, Fort Collins, Colorado;
"4. That Howard L. Reed, the affiant herein, is a Police Officer of the City of Fort Collins Police Department, Fort Collins, Colorado, and is assigned to the Narcotics Bureau and is authorized by law to execute Search Warrants in the County of Larimer and State of Colorado."
The ruling by the court was predicated solely upon People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973), wherein we held an affidavit to be fatally defective which failed to set forth sufficient facts to permit a determination that the informer was reliable. In making its ruling here the trial court stated:
"The Peschong Case gives the trial judges in the State plenty of alarm. What I am doing is testing this affidavit against the affidavit in Peschong, and I am not pay any attention in making this ruling as to what Peschong said about some matters contained in it. The Supreme Court said Peschong is not a sufficient affidavit. Testing that affidavit, which is held by our Supreme Court not to be sufficient against the affidavit now before this Court, the Court reluctantly sustains the motion to suppress, for the reason that the affidavit now before the Court does not contain as much, in this Court's opinion, that would authorize to justify the issuance of a warrant as what was set forth in Peschong."
Since the suppression hearing was held on March 30, 1973, the court did not have before it People v. Ward, 181 Colo. 246, 508 P.2d 1257, announced on April 16, 1973. In Ward we ruled that the motion to suppress should have been denied, and we gave some clarification to Peschong. The affidavit in Peschong contained only generalities and conclusory statements by the affiant police officer. The affidavit in Ward contained sufficient facts to permit a finding that the informer was reliable. We regard the affidavit here as also containing sufficient facts to permit a finding of reliability. The Peschong affidavit stated that the informant had "given reliable information on at least three prior occasions." No clue was given as to what kind of information was given. No statement was made that the information led to any arrests or convictions.
In contrast paragraph 2 of the affidavit here related that the informant had previously given information relating to marijuana, and that the information resulted in the arrest and conviction of an individual for possession of a narcotic drug.
The defendant points out that there was a 14 month lapse in time between the information provided by the informant which resulted in the arrest and conviction of a person for possession of a narcotic drug, and the information provided by the informant in this case. Although there may be circumstances in which a significant lapse of time in providing information might affect a court's determination of the informer's reliability, we do not view this to be such a case.
Ruling disapproved and the cause remanded with directions to deny the motion to suppress.
MR. JUSTICE ERICKSON dissents.