People v. Lubben

739 P.2d 833, 1987 Colo. LEXIS 572
CourtSupreme Court of Colorado
DecidedJune 29, 1987
Docket86SA305
StatusPublished
Cited by16 cases

This text of 739 P.2d 833 (People v. Lubben) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lubben, 739 P.2d 833, 1987 Colo. LEXIS 572 (Colo. 1987).

Opinions

ROVIRA, Justice.

Pursuant to C.A.R. 4.1, the People appeal an order suppressing evidence obtained pursuant to a search warrant. The trial court concluded that the search warrant was invalid because the underlying affidavit was insufficient to demonstrate probable cause for the search. We reverse and remand for further proceedings.

I.

The issue presented in this case is whether the affidavit supplied to the magistrate contained sufficient information to justify issuing a search warrant. The affidavit, the substance of which is appended to this opinion, was dated January 2, 1986, and requested a warrant to immediately search 2590 W. Yale Avenue and 2720 South Bryant Street, in Denver, Colorado, and Devannie Lubben and Ramon Munoz (defendants), for controlled substances and related paraphernalia.

The affidavit was signed by Detective Marco Vasquez, who stated therein that he had been with the Denver Police Department for ten years and in the narcotics division for five.

The affidavit stated that in November 1985, Vasquez was informed by a first-time confidential informant that the defendants, whom the informant described, were engaged in the sale of methamphetamines from the Bryant and Yale addresses. The informant stated that the supplier was a man named Richard Marsh; the informant then took Vasquez to an apartment on Quincy Avenue, and indicated that it was Marsh’s residence.

The affidavit then stated that Vasquez had checked police records and determined that Munoz had been “contacted” at the Marsh residence by the police on December 7,1985. Vasquez then talked to the officer who made the “contact” at the Marsh resi[834]*834dence, and the officer told him that drug paraphernalia was in plain view. The records also revealed that defendants were arrested at the Yale Avenue address on April 24, 1985, and gave that address as their home address. Information received from fellow officer Michael Gassman also revealed that on April 24, currency, a handgun, and methamphetamines were recovered during a search of the Yale Avenue address. The affidavit also stated that when given traffic citations in July 1985, defendants again gave the Yale Avenue address as their home address.

The affidavit further noted that, during the preceding month, Yasquez and Gass-man had conducted “sporadic surveillance” of both the Bryant Street and Yale Avenue addresses, and had observed unusually heavy foot traffic to, from, and between those addresses and that this is a common practice in the sale of drugs at the street level.

In its penultimate paragraph, the affidavit stated that “[w]ithin 72 hours of 1/6/86, this confidential informant was at the [Yale] address ... and observed a quantity of methamphetamine. This informant is familiar with the appearance of methamphetamine as the informant has used methamphetamine in the past.”

Vasquez presented his affidavit to a Denver County Court judge on January 2,1986. Based on his affidavit, a warrant was issued to search 2590 W. Yale Avenue, Denver, Colorado, and the defendants. The warrant did not allow a search of the Bryant Street address. The search was conducted the same day. Physical evidence was seized only from the premises, and defendants were charged with unlawful distribution, manufacturing, dispensing, sale, and possession of a controlled substance, section 18-18-105, 8B C.R.S. (1986).

The defendants moved to suppress the seized evidence on the grounds that the affidavit was insufficient to support a search warrant and therefore the search was unconstitutional. The only evidence presented to the trial court in addition to the affidavit was the testimony of Vasquez. He testified that the affidavit was written and signed on January 2, 1986, and the date “1/6/86” in the penultimate paragraph of the affidavit was a typographical error and should have been “1/2/86.”

The trial court ruled that the affidavit did not contain sufficient information to establish probable cause for the issuance of a search warrant because there was inadequate information as to how, when, and where the informant observed defendants being “engaged in” the methamphetamine trade. Further, the affidavit lacked sufficient corroborating detail; the incorrect date regarding the informant’s observations of methamphetamines at the Yale address could not be corrected as a typographical error because the issuing judge could only rely on the four corners of the affidavit and would have no way of knowing it was a typographical error; and there was lack of detail as to the times of the “sporadic surveillance” conducted by Vasquez and Gassman. Accordingly, the trial court ordered the evidence suppressed.

The People filed this interlocutory appeal, arguing that the affidavit is sufficient to justify the issuance of a search warrant for the premises. Alternatively, the People argue that, even if the magistrate erred in issuing the warrant, the officers relied on it in good faith and therefore the evidence should be admitted pursuant to section 16-3-308, 8A C.R.S. (1986).

II.

In determining whether there is probable cause to issue a search warrant, the court must examine the “totality of the circumstances” to determine if the affidavit reveals “sufficient facts for a person of reasonable caution to believe that contraband” will be found at the place to be searched. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); People v. Rayford, 725 P.2d 1142, 1148 (Colo.1986); People v. Hart, 718 P.2d 538 (Colo.1986). Probable cause depends on probabilities, not certainties. Rayford; People v. Hill, 690 P.2d 856 (Colo.1986). The issuing magistrate should not interpret the affidavit in a hypertechnical fashion, but rather rely on common sense to determine [835]*835if there is a fair probability that contraband will be found. Gates; Rayford; People v. Pannebaker, 714 P.2d 904 (1986).

The purpose of the probable cause standard is both “ ‘to safeguard citizens from rash and unreasonable interferences with privacy’ ’’and “ ‘to give fair leeway for enforcing the law for the community’s protection.’ ” Brineger v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Hearty, 644 P.2d 302, 309 (Colo.1982).

In applying these principles, we do not deal with a finite set of all encompassing legal maxims, because “probable cause is a fluid concept ... not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. at 2329.

Initially, the court found the affidavit defective because the tip from the first-time informant was not supported with detail on how, when, and where the informant learned that defendants were moving methamphetamine between the two addresses listed. The court relied on People v. Bauer, 191 Colo. 331, 552 P.2d 512

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Leed, E., Aplt.
Supreme Court of Pennsylvania, 2018
People v. Crippen
223 P.3d 114 (Supreme Court of Colorado, 2010)
Greenstreet v. State
898 A.2d 961 (Court of Appeals of Maryland, 2006)
State v. Greenstreet
875 A.2d 177 (Court of Special Appeals of Maryland, 2005)
People v. Miller
75 P.3d 1108 (Supreme Court of Colorado, 2003)
People v. Roccaforte
919 P.2d 799 (Supreme Court of Colorado, 1996)
People v. Pate
878 P.2d 685 (Supreme Court of Colorado, 1994)
Henderson v. People
879 P.2d 383 (Supreme Court of Colorado, 1994)
People v. Rowerdink
756 P.2d 986 (Supreme Court of Colorado, 1988)
People v. Grady
755 P.2d 1211 (Supreme Court of Colorado, 1988)
People v. Lubben
739 P.2d 833 (Supreme Court of Colorado, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
739 P.2d 833, 1987 Colo. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lubben-colo-1987.