Opinion
No. 26292
Decided December 29, 1975.
Defendant was convicted of possession of a narcotic drug, heroin, and appealed.
Affirmed
1. SEARCHES AND SEIZURES — Affidavit — Statement — Informant Was Reliable — — Standing Alone — Insufficient — Aguilar-Spinelli Test. Police officer's statement in affidavit — on which search warrant was based — that informant was reliable, standing alone, could not support second prong of Aguilar-Spinelli test that there be sufficient information to show that informant was credible or his information reliable.
2. DRUGS AND DRUGGISTS — Affidavit — "Reliable Confidential Informant" — Two Other Occasions — Aguilar-Spinelli Test — Met. Where affidavit contained the following information: that the affiant had received information from an unidentified "reliable confidential informant" whose information had proven reliable on at least two other occasions within the recent past, resulting in narcotics arrests and seizures, held, this, as such, was sufficient to meet the second prong of the Aguilar-Spinelli test, i.e., that the information be sufficient to show that informant was credible, or his information was reliable; hence, motion to suppress heroin found in search pursuant to warrant was properly denied in drug prosecution.
3. WITNESSES — Affidavit — Search Warrant — Credibility — Refusal of Examination — Abuse — Negative — Probable Cause. Where, at hearing held on defendant's motion to suppress, trial court refused to allow an examination of affiant as a witness to test the credibility and accuracy of the information contained in affidavit in support of search warrant, held, as such, trial court did not abuse its discretion; the standards of probable cause were met on the face of the affidavit, and court had no reason to mistrust the allegations therein; there was no reversible error.
4. DRUGS AND DRUGGISTS — Sentence — Ten to Fourteen — Not Unduly Harsh — Past Participation — Statutory. Where defendant was convicted of possession of a narcotic drug and sentenced to ten to fourteen years' imprisonment in the state penitentiary, held, this sentence, as such, was not unduly harsh, particularly, where record reflects that defendant's "past participation" was more than minimal and sentence fell within statutory minimum and maximum.
5. CRIMINAL LAW — Sentencing — Balloons of Heroin — Considered — Presentence Report — Acceptance. Evidence of 96 balloons of heroin found at defendant's apartment building which had been suppressed during drug prosecution trial was not improperly considered by trial court during sentencing through the presentence investigation report; especially, where defendant, who was afforded his right to allocution, did not claim that presentence investigation report was untrue or inaccurate and defense counsel in fact accepted the report.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, David A. Sorenson, Assistant, John R. Rodman, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.
The defendant appeals from a conviction of possession of a narcotic drug, heroin. During the execution of a search warrant, five small balloons, the contents of which were tested positive for heroin, were found on the defendant's person. Defendant alleges that the trial court erred in not granting his motion to suppress in that the search warrant was issued not in compliance with the Aguilar-Spinelli tests. He further argues that the trial court committed error in its refusal to allow defense counsel to examine the affiant whose affidavit supported the search warrant in order to attack the credibility and accuracy of the information contained in the affidavit. The last contention of the defendant is that his sentence of ten to fourteen years imprisonment in the state penitentiary was unduly harsh and should be modified.
I.
The affidavit in support of the search warrant, signed by a member of the Narcotics Bureau of the Denver Police Department, was based upon information supplied to the officer by a confidential informant. The affidavit contained essentially the following information: (1) that the affiant had received information from an unidentified "reliable confidential informant" whose information had proven reliable on at least two other occasions within the recent past, resulting in narcotics arrests and seizures; (2) that the informant was present in the apartment of the defendant on the previous day where he saw a quantity of heroin packaged in small balloons kept in a kitchen cabinet; (3) and that on that same day the informant observed the defendant sell heroin packaged in balloons to several persons. Also included was a description of the defendant and informant's verification of the fact that the defendant lived at the address given in the affidavit.
Defendant concedes that the allegation of personal knowledge on the part of the informant satisfies the first prong of the Aguilar-Spinelli test, in that there are sufficient underlying circumstances set forth so as to enable a magistrate to independently judge the validity of the informant's conclusion that criminal activity exists. See People v. Harris, 182 Colo. 75, 510 P.2d 1374 (1973). The defendant contends, however, that the subsequent allegations failed to satisfy the second prong, i.e., there was not sufficient information to show that the informant was credible, or his information was reliable.
[1] Admittedly the police officer's statement that the informant was "reliable," standing alone could not support the second prong of the Aguilar-Spinelli test. Referring to a similar assertion, this court in People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973), said:
"The affidavit could have indicated — which it fails to do — the nature of the information previously given by the informant, whether it related to drugs, thefts, or other matters. It could have indicated whether the previous information led to arrests or convictions, or otherwise proved to be true.
[2] The affidavit in this case is distinguishable from the infirmities found in the affidavit in Peschong, supra. The affidavit indicates that previous information given by the informant involved narcotics and resulted in narcotic arrests and seizures.
Under the requirements of Peschong, we do not regard the information as insufficient. Further, this court has approved virtually identical language in People v. Ward, 181 Colo. 246, 508 P.2d 1257 (1973). In that case, the affidavit contained a statement by the affiant police officer that the information provided by the informant had proven reliable on at least two recent past occasions which resulted in narcotic arrests and seizures. We, therefore, rule that the motion to suppress was properly denied.
II.
[3] At the hearing held on defendant's motion to suppress, the defense counsel sought to call the affiant as a witness to test the credibility and accuracy of the information contained in the affidavit. Counsel states in his brief that, although defense counsel had not subpoenaed the affiant, he was "apparently available," and that the district attorney stated that he had no objection to calling the affiant. The trial court refused to allow the requested examination, and defendant assigns error. Although we have approved the cross-examination of an affiant People v. MacDonald, 173 Colo. 470, 480 P.2d 555 (1971), we cannot say that the court abused its discretion in this case by refusing the defendant's request. The standards of probable cause were met on the face of the affidavit, and it is apparent that the court had no reason to mistrust the allegations therein. There was no reversible error.
III.
[4,5] Defendant complains that his sentence of ten to fourteen years is unduly harsh in view of the fact that the defendant had no prior criminal convictions. A related contention is that evidence of 96 balloons of heroin found at the defendant's apartment building (which had been suppressed during trial) was improperly considered during sentencing through the pre-sentence investigation report. We cannot agree.
In this case, the sentencing judge properly noted that with respect to narcotics, the defendant's "past participation" was more than minimal. Defendant was afforded his right to allocution, but did not claim that the pre-sentence investigation report was untrue or inaccurate. Rather defense counsel accepted the report stating: "I have no knowledge of any facts which are not contained in the report." We cannot say that the sentencing court improperly utilized the information in the pre-sentence investigation report in imposing an appropriate sentence on the defendant. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972).
The defendant's sentence falls within the statutory minimum and maximum and it does not shock the conscience of the court.
Judgment affirmed.