People v. Winden

ROVIRA, Justice,

concurring in part and dissenting in part:

I concur in the result reached in the majority opinion that the trial court applied an improper standard and failed to make findings with regard to the source of any error in support of its decision to strike the second paragraph of the affidavit.

However, I once again disagree with the court’s refusal to require a defendant, seeking to suppress evidence on the basis of a veracity challenge to a warrant affidavit, from complying with the requirements of People v. Dailey, 639 P.2d 1068 (Colo.1982). See People v. Martinez, 658 P.2d 260 (Colo.1983) (Rovira, J., dissenting).

The motion to suppress was heard on July 15, 1984. Prior to that time, the defendants had filed a motion for discovery which was argued on May 25, 1983. Although the motion for discovery is not included in the record, the trial court’s order dated June 29, 1983, reflects that the motion requested information concerning the arrest of Phillip Jon Gonzales, the person referred to in the second paragraph of the officer’s affidavit. See Slip Op. at 2.

The trial court’s order states in part that: “A search warrant was issued in the case at bar based upon information furnished to officers by a confidential informant, and the affidavit in support of the warrant attempts to establish the reliability of the informant by reference to an incident involving the said Phillip Jon Gonzales.” The court then ordered the district attorney to furnish the defendants copies of the police reports involving the arrest of Gonzales.

On July 15, defense counsel called Officer Van Zandt to the witness stand and asked him several questions about the informant. These questions related to how this informer became an informer, how and when the officer first met the informer, and whether the officer met the informer by virtue of an arrest of the informer. The district attorney objected to this line of questioning on the grounds that the answers might reveal the name of the informant.

After defense counsel argued that he was entitled to an answer to his questions, and that the People had to lay a foundation if they were going to invoke an informer privilege, the trial judge ordered Officer Van Zandt into the judge’s chambers. The hearing was then terminated and resumed on July 21, 1983.

On July 21, the People brought to the trial court’s attention our decision in People v. Dailey, 639 P.2d 1068 (Colo.1982) which required the defendant to specify as a condition to a veracity hearing which statements in the officer’s affidavit are being challenged, and to submit an affidavit showing a good faith basis for the challenge. Although defense counsel admitted he had not complied with the requirements of Dailey, the trial court permitted the veracity hearing to go forward and allowed further inquiry into paragraph two of the affidavit to determine why the officer considered the informant reliable.

Although the majority opinion reaffirms support for the procedural requirements set out in People v. Dailey, it excuses the failure of defense counsel to comply by holding that the impetus for the July 21 hearing was not the motion to suppress filed by the defendants, but the order of the trial court permitting cross-examination by defense counsel. (Slip op. 6).

Such reasoning is beyond my comprehension. The simple fact is that the veracity hearing began on July 15 at the request of the defendants. The impetus for the hearing was the defendants’ discovery motion and the allegation in defendants’ motion to suppress tangible evidence that “the affidavit on the basis of which the warrant was issued contains certain inaccurate and misleading statements ....” (emphasis added). Prior to that hearing, no effort was made to comply with the straight forward requirements of People v. Dailey, and the People objected to the questions propounded to Officer Van Zandt. To hold that the impetus for the evidentiary hearing came from the trial court and not from the defendants is to ignore reality and create another excuse for failure to comply with Dailey.

In People v. Martinez, 658 P.2d 260 (Colo.1983), the court observed that the threshhold showing required by People v. Dailey was woefully inadequate. It excused this inadequacy on the grounds that “once the hearing was held and an order for an in camera hearing was entered the record suggests that the prosecution voiced no objection to the procedure.” People v. Martinez, 658 P.2d at 262.¹

Here, from the outset, the People objected to any questions concerning the informant, and at the recessed hearing on July 21, the People directed the trial court’s attention to the requirements of Dailey. There is no indication here that the People waived the prerequisites of Dailey, and the mere fact that the People voiced no objection to the trial judge’s ordering Officer Van Zandt into the judge’s chambers is no basis for asserting waiver by the People.

If Dailey is to have any meaning, then the court must enforce its pronouncements. In my opinion, the defendants have failed to meet the conditions for a veracity hearing and the trial court erred in permitting the hearing to go forward. I repeat here what I said in People v. Martinez, 658 P.2d at 264: “By this opinion the bench and bar will be on notice that any attack on the affidavit supporting a search warrant can be commenced by surmise and conjecture.”

1 . In People v. Nunez, 658 P.2d 879 (Colo.1983), cert. granted, — U.S. -, 104 S.Ct. 65, 78 L.Ed.2d 80 (1983), cert. dismissed as improvidently granted, — U.S. -, 104 S.Ct. 1257, 79 L.Ed.2d 338 (1984), the defendant also failed to comply with the prerequisites of People v. Dailey. However, we excused such failure because the People acquiesced in the waiver of those prerequisites and did not raise the point on appeal.