People v. Jones

MULLARKEY, Justice,

dissenting:

This case involves a four-count information against Nathaniel Jones and Lydia Mae Reynolds charging them with possession of cocaine, distribution of cocaine, conspiracy to possess cocaine and conspiracy to distribute cocaine. See majority opinion at 287. Our rule and the parallel statute permit the state to take an interlocutory appeal from a trial court order granting a motion to suppress evidence if the appeal is not taken for purposes of delay and “the evidence is a substantial part of the proof of the charge pending against the defendant.” C.A.R. 4.1(a); § 16-12-102(2), 8A C.R.S. (1986). On the record before us, I conclude that the prosecution has failed to show that the marked one hundred dollar bill is a “substantial part” of the proof of the four charges.

The search warrant inventory in the record indicates that the items which the police recovered from the residence at 1648 Akron Street included: thirty-six bindles or containers of cocaine totalling 46.6 grams, several unidentified capsules and tablets, drug paraphernalia, stereo equipment, computers, four handguns with ammunition, identification papers, $546 in currency,¹ and two television sets. The drug paraphernalia included, for example, used implements containing traces of cocaine and eight bags of syringes. Also pursuant to the search warrant, the police found in Jones’ car and seized thirty-three bindles of unspecified weight containing suspected cocaine.

In addition to this evidence, the prosecution also has evidence of the controlled “buy” made by its confidential informant which includes the cocaine purchased by the confidential informant at 1648 Akron Street and a tape recording of the conversation between the confidential informant and one of the occupants at that address. The police officer who executed the affidavit stated that she overheard a telephone conversation between the confidential informant and Nathaniel Jones setting up the> controlled buy. Another police officer observed the confidential informant’s movements to and from Jones’ residence.

Given this evidence, which may be only a partial summary of the evidence available to the prosecution, I would find that this case does not meet the test of C.A.R. 4.1(a) and section 16-12-102(2). Therefore, I would dismiss the appeal.

I am authorized to say that KIRSH-BAUM, J., joins in this dissent.

1 . The inventory does not list any one hundred dollar bill. In my opinion, that omission disposes of the prosecution's contention on appeal that the marked bill was seized pursuant to the search warrant.