Opinion
No. 75-283
Decided November 13, 1975. Rehearing denied December 4, 1975. Certiorari granted January 26, 1976.
Motion to suppress certain evidence and statements of defendant charged with possession of marijuana was denied, and a conviction followed. Defendant appealed.
Affirmed
1. CRIMINAL LAW — Search and Seizure — Warrant — Probable Cause — Sufficiency of Information — Informant's Actions — Credibility — Not At Issue. Search warrant was valid where grounds for its issuance were apparent on its face and it contained court's statements of satisfaction that probable cause existed, and where affidavit in support of said warrant was based on the actions of an "informant" as observed by a police officer rather than on the statements, and hence the credibility, of the informant.
2. Search and Seizure — Warrant — Delay In Obtaining — Basis for Suppression — Prerequisite — Showing of Legal Prejudice. Where defendant claimed that search warrant obtained five days after police acquired information giving them reason to believe marijuana was in his home was based on stale evidence, that contention did not constitute sufficient grounds for suppression of evidence seized pursuant to the warrant, defendant not having demonstrated that he suffered any legal prejudice as a result of the delay.
3. Admissibility of Statements — Detention of Defendant — Probable Cause Present — Statements Admissible — Existence of Arrest — Not Determinative. Since at pre-trial hearing, trial court found that police officers were in possession of information sufficient to constitute probable cause to justify defendant's warrantless arrest, and since the sufficiency of that evidence was not challenged on appeal, the statements made by defendant during his detention, whether or not that detention was "arrest," were admissible.
4. Admissibility of Statements — Transcript of Hearing — Excluded from om Record — Validity of Proceedings — Sufficiency of Findings — Presumed. Where certain evidence and statements made at a preliminary hearing were asserted to be inadmissible as "fruit of the poisonous tree," but defendant designated only a part of the transcript of the proceedings below and specifically excluded any transcript of the preliminary hearing, it will be presumed that those proceedings were valid and that the evidence supports the findings admitting the challenged evidence and statements.
Appeal from the District Court of Montrose County, Honorable Fred Calhoun, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, William J. Donlon, Jr., Assistant Attorney General, for plaintiff-appellee.
Woodrow, Roushar Weaver, Gerald D. Weaver, for defendant-appellant.
Division III.
Defendant, Basil David Glazier, appeals his conviction of possession of more than one-half ounce of marijuana in violation of § 12-22-302, C.R.S. 1973. He contends that certain exhibits should have been suppressed and not admitted into evidence against him, and that his arrest was illegal, precluding the use against him of certain statements made and acts performed by him while in police custody. We affirm.
On May 18, 1974, an informant of the Montrose police department was transported by police officers to the area of South 8th Street and Uncompahgre Avenue in Montrose. The informant was searched and left the police vehicle with only his clothing and $65 which had been given to him by the police. The informant entered a residence on South 8th Street and emerged some thirteen minutes later. Returning directly to the police vehicle, he was again searched. He was found to have no money, but over one-half pound of marijuana.
Five days after the "buy," one of the above police officers filed an affidavit in the county court requesting a search warrant. The affidavit related essentially the facts outlined above, and also stated that the informant had purchased the marijuana from "an unidentified suspect" in the house. A warrant was thereupon issued in which the court expressed its satisfaction that probable cause had been shown, and which authorized a search of the residence in question and seizure of any marijuana found there.
Before serving the search warrant, the police looked for Glazier and located his car parked across from a movie theater. They found him inside the theater and he consented to accompany them to the house. Upon arriving there, the officers served him with the search warrant, whereupon Glazier stated he knew there was "pot" in the house. One of the officers stopped him from saying more, and read him his Miranda rights.
A thorough search of the house followed, during which Glazier told the officers that he occupied the south bedroom. He showed the officers marijuana in a suit coat hanging in the closest in the north bedroom. The officers found and seized a good deal more marijuana and residues thereof throughout the house, some of it from Glazier's bedroom.
Glazier was then taken to jail, and a criminal information was filed against him. After preliminary hearing in which the court found probable cause to exist, the matter was tried to a jury and the conviction resulted.
I.
Glazier asserts as error the refusal of the trial court to suppress the evidence seized pursuant to the search warrant. The principal grounds for his objection to use of the evidence are that the warrant failed specifically to "state the grounds or probable cause for its issuance," as required by Crim. P. 41(d)(III), and that the affidavit in support of the search warrant did not meet the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. We do not agree.
[1] Grounds for issuance of the warrant in conformance with Crim. P. 41(b)(4) and (5) are apparent on its face, and it contains the court's statement of satisfaction that probable cause exists. Thus the warrant met the requirements of Crim. P. 41(d)(III). See People v. Singleton, 174 Colo. 138, 482 P.2d 978.
In addition, the affidavit supporting the warrant met the standards set forth in Aguilar v. Texas, supra, and Spinelli v. U.S., supra. The underlying facts and circumstances set forth sufficed to enable the county judge to determine independently that probable cause existed to believe that there was contraband at the house in question, the possession of which was illegal, and which would be material evidence in a subsequent prosecution. Furthermore, since the affidavit was predicated not on statements of the "informant" but rather on his actions as observed by the police officer-affiant, the credibility of the "informant" or the reliability of his information was not at issue here. Fitchew v. State, 463 P.2d 1009 (Okla. 1970). See Aguilar, supra.
Glazier contends that the information in the affidavit (and a fortiori the warrant) was stale and that the presence of contraband in the house on May 18 did not provide probable cause to believe contraband would be found there five days later. He concludes, therefore, that the warrant based on such affidavit was invalid and any evidence seized pursuant thereto should have been suppressed.
In support of this proposition, he relies on People v. Schmidt, 172 Colo. 285, 473 P.2d 698, See also People v. Padilla, 182 Colo. 101, 511 P.2d 480. In Schmidt the court held that a five day lapse was not significant where there had been a series of drug transactions extending over a period of time. The court stated, by way of dictum, that the argument for suppression "might be persuasive were the statement of the underlying facts and circumstances limited to an isolated narcotics transaction." In Padilla, the affidavit was silent as to whether the sales "were recent in time or so remote as to be of no support for a reasonable conclusion that narcotics were then present in the car to be searched." Neither case is controlling authority for the issue presented here.
Here, the county judge, from the facts contained in the affidavit, made his independent determination that there was probable cause to believe that on May 23 there was marijuana in the house to be searched. Since there was evidence in support of that finding, this court is in no position to substitute its judgment for that of the judge who issued the warrant. People v. Martinez, 186 Colo. 388, 527 P.2d 534.
[2] Also, as stated in Commonwealth v. Cromer, 365 Mass. 519, 313 N.E.2d 557 (1974), where the issue was delay between issuance of a search warrant and its execution:
"Even if the delay in executing a search warrant in a particular case is found to have been unreasonable, evidence seized pursuant to that search warrant need be suppressed only if the defendant can demonstrate that he suffered legal prejudice as a result of the delay."
The same principle applies here to the hiatus between obtaining information upon which the affidavit was based and the filing of the affidavit. See People v. Nelson, 171 Cal. App. 2d 356, 340 P.2d 718. The warrant having been validly issued and no legal prejudice as a result of the delay having been shown, there is no reason for invalidating the warrant and for suppressing the evidence here.
II.
[3] Glazier also contends that evidence as to statements made and acts performed by him at the house should have been suppressed as "fruit of the poisonous tree" acquired as a result of an illegal arrest or detention. Whether his accompanying the police to the house constituted an arrest or detention is debatable. However, even if the circumstances constituted an arrest, the trial court at a pretrial hearing found, based on the testimony at the preliminary hearing, that the police "had probable cause to believe that defendant violated a statute and could be arrested without a warrant." In other words, the court found that the prosecution had previously presented sufficient evidence that the police officers involved here were in possession of information sufficient to constitute probable cause to justify Glazier's warrantless arrest. See People v. Valdez, 173 Colo. 410, 480 P.2d 574. That being so, the actions and statements were admissible, the Miranda warning having been given.
[4] The sufficiency of the evidence on which that finding was made is not at issue here. Glazier designated only part of the transcript of the proceedings in the record transmitted to this court for review, and he expressly excluded any transcript of the preliminary hearing. There being no transcript of the preliminary hearing, we must presume the validity of those proceedings, Shepherd v. Cox, 172 Colo. 28, 470 P.2d 25; Lively v. Price, 165 Colo. 111, 437 P.2d 526, and that the evidence presented supports the findings. Furer v. Allied Steel Co., 174 Colo. 171, 483 P.2d 212; Bonham v. Aurora, 133 Colo. 276, 294 P.2d 267.
Also, after a full hearing at the trial, the court found that Glazier's statements and actions while in custody were either volunteered ( i.e., not made in response to any questioning) or were freely made in full awareness of his rights not to cooperate. There is sufficient uncontroverted testimony in the record as to all the circumstances including Glazier's actions as well as words, to support those findings, and we are not free to substitute our conclusions for those of the trial court. People v. Martinez, supra; People v. Medina, 180 Colo. 56, 501 P.2d 1332.
Glazier's own deliberate and voluntary decision led to the creation of this evidence. There was no error in refusing to suppress it.
III.
On the other matters raised on this appeal, the trial court's rulings were based on sufficient evidence and were within its proper discretion, or the contentions deal with matters which are ministerial in nature and have no effect on the validity or invalidity of the proceedings, so we need not discuss them here.
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE PIERCE dissents.