Opinion
No. 77-036
Decided June 15, 1978. Rehearing denied July 13, 1978. Certiorari denied September 11, 1978.
Convicted of possession of narcotic drugs, defendant appealed on basis that his motion to suppress evidence should have been granted.
Affirmed
1. CRIMINAL LAW — Search Warrant — Affidavit — Informant — Observed Defendant — Possession of Balloons — Used for Heroin — Previously Convicted — Sufficient — Probable Cause. Where affidavit in support of search warrant stated that informant had observed defendant in possession of balloons of the type used for packaging heroin, and also contained information that defendant had previously been convicted for the possession of narcotics, the affidavit, though poorly drafted, did contain sufficient information to establish probable cause, and thus, the warrant being properly issued, the trial court did not err in refusing to suppress the items seized upon its execution.
Appeal from the District Court of the City and County of Denver, Honorable Luis D. Rovira, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Anthony Marquez, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Kenneth M. Gordon, Deputy State Public Defender, for defendant-appellant.
Appealing his conviction of possession of narcotic drugs, the defendant contends that the trial court erred in denying his motion to suppress evidence seized by law enforcement officers from his residence pursuant to a search warrant. We do not agree, and affirm the conviction.
The police officer's affidavit, which served as the basis for the issuance of the warrant, reads in pertinent part as follows:
"I, G. Meyer an Officer in the Denver Police Department, currently assigned to the vice/drug control bureau, have received information from a previously reliable confidential informant, whose information in the past two years has proven to be reliable on at least two prior occasions or more and has resulted in the arrests of persons for trafficking narcotics and drugs as well as the prosecutions of the same, and the seizure of both drugs and narcotics namely heroin and LSD. The informant has always proven to be both reliable and accurate in the past and has never been found to be unreliable.
"The informant has contacted your affiant in the last 24 hours and stated that the informant was personally present at 1400 Newton St. in the last 48 hours and observed a person known as Tiny Cruz in possession of Multi-colored balloons the kind which the informant states are the normal packaging form for about 1 grams [sic] size of heroin normally sold on the street to junkies for 65 dollars apiece. The informant further states the person known as Tiny Cruz has the balloons in his pocket and the informant personally saw them on the person of Tiny Cruz and in his hand at the residence in the last 48 hours.
"Your affiant has checked the DPD records which show one Thomas Cruz AKA Tiny Cruz who has been arrested for the possession of Narcotic drugs and sentenced for the same in 1970 and has had prior arrests for narcotics and drugs and is the brother of Corneilus Cruz who was sentenced for sale of heroin in 1976."
The defendant argues that the affidavit in support of the warrant did not set forth sufficient facts to meet the first prong of the Aguilar-Spinelli test for determining whether there was probable cause for the issuance of the warrant — "the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion." People v. McGill, 187 Colo. 65, 528 P.2d 386 (1974). No issue was raised as to the second prong, the reliability of the informant or the credibility of his information.
[1] We agree with the trial court that the observations of the informant together with the related information from police records, plus the reasonable inferences to be drawn therefrom, constituted probable cause for the issuance of the warrant. " '[P]robable cause' . . . means less than evidence which would justify condemnation . . . and . . . a finding of 'probable cause' may rest upon evidence which is not legally competent in a criminal trial." United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).
Admittedly, the affidavit is poorly drafted, but as stated in United States v. Ventresca, supra:
"Affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting."
The warrant having been properly issued, there was no basis for suppressing the items seized following the execution of that warrant.
Judgment affirmed.
JUDGE RULAND concurs.
JUDGE PIERCE dissents.