The Colorado Supreme Court affirms a trial court suppression of evidence in an interlocutory appeal by the State. The informant’s statement alone was not enough to show probable cause because it was bare bones and was propped up with a six year old stale tip. The court also held that the good faith exception could not save this search. People v. Pacheco, 175 P.3d 91 (Colo. 2006):<\/p>\n
The first issue we must address, therefore, is whether the trial court correctly concluded that Detective Colbert’s affidavit failed to provide a substantial basis for the magistrate to find probable cause. We hold that the trial court was correct in this conclusion. Where, as here, an affidavit is based on an informer’s tip, the totality of the circumstances inquiry looks to all indicia of reliability – including the informer’s veracity and the basis of his knowledge, the amount of detail provided by the informer, and whether the information provided was current. Randolph,<\/em> 4 P.3d at 481-82; see also People v. Leftwich,<\/em> 869 P.2d 1260, 1266 (Colo. 1994).<\/p>\n
The affidavit in this case fails all indicia of reliability. Under our case law, probable cause requires there be current information of criminal activity or contraband located at the place to be searched. Miller,<\/em> 75 P.3d at 1115 (holding that month old information of methamphetamine manufacture at the defendant’s house was stale); Randolph,<\/em> 4 P.3d at 482 (holding two months old information of methamphetamine use to be stale). Here, none of the anonymous tips received by the Department in 1999 concerned Defendant selling illegal drugs from vehicles; even if they did, information that is six years old is clearly stale and cannot establish probable cause. The anonymous tip received on April 26, 2005, that “Jimmy Pacheco” was selling illegal drugs only from vehicles, was two and a half months old when the application for the search warrant was filed. The affidavit contained no details regarding how the anonymous informant gained this information and did not provide facts linking “Jimmy Pacheco” to Defendant. Such information, even if not stale, does not alone rise to the level of probable cause. This leaves only the report of Informant, which was conveyed within forty-eight hours prior to Detective Colbert applying for the warrant. Although this information was current, Informant’s veracity and basis of knowledge were not sufficiently described in the affidavit.<\/p>\n
We have previously held that bare assertions of knowledge are insufficient to establish the basis of an informer’s knowledge. Leftwich,<\/em> 869 P.2d at 1266. An affidavit must instead contain enough facts “to allow a magistrate to determine how the informant obtained the information on which the affiant relies.” Id. The affidavit in this case contained no information regarding how Informant knew that (1) Defendant sold illegal drugs from vehicles and (2) Defendant frequently changed vehicles to evade the police. Although Informant and Defendant reportedly “had contact,” the affidavit’s description of this encounter did not contain details as to where, when, how, or why the meeting occurred. With regard to Informant’s veracity, the affidavit simply stated that Informant had provided the Department with reliable information in the past. These statements were conclusory, however, and conveyed no additional information upon which the magistrate could independently determine Informant’s veracity or reliability.<\/p>\n
Where an informant’s statements do not alone rise to the level of probable cause, probable cause may be established by independent police corroboration of the information. Randolph,<\/em> 4 P.3d at 482; Leftwich, 869 P.2d at 1267-68. If only non-criminal activity is corroborated, the question whether probable cause exists focuses on “the degree of suspicion that attaches to [the] particular types of corroborated non-criminal acts and whether the informant provides details which are not easily obtained.” Leftwich, <\/em>869 P.2d at 1268. In this case, Detective Colbert only confirmed that Defendant drives different vehicles throughout the week. Detective Colbert’s affidavit did not describe the time frame of his surveillance, the number of vehicles in which Defendant was seen, or the type of vehicles Defendant drove. At the suppression hearing, Detective Colbert only stated that Defendant was seen driving the silver Ford Taurus and “a little red car.” Driving two different cars during an unspecified time period is neither criminal activity nor inherently suspicious. Furthermore, this information does not include details that would be difficult to obtain. Corroboration of this information therefore does not provide probable cause for the search warrant, and Detective Colbert did not confirm any of the other information provided by Informant.<\/p><\/blockquote>\n
Pseudo-conflict of laws in a traffic stop: The fact a license plate was legally visible under the law of the home state did not mean that it was, as a matter of law, lawful in the state where the vehicle was stopped, so stop was valid. United States v. Martinez, 2006 U.S. Dist. LEXIS 73181 (D. Kan. October 6, 2006):<\/p>\n
This statute grants duly licensed nonresident drivers the privilege of driving in the State of Kansas even though they are not licensed by the State of Kansas. It does not grant such drivers the right to display or not display tags in violation of Kansas law, even though the driver and vehicle are properly licensed and registered in another state. See Hayes,<\/em> 660 P.2d at 1389.<\/p><\/blockquote>\n
Proven informant coupled with corroboration by officers led to stop that showed the defendant with a suspended DL, and that justified a search incident. United States v. Alcantar-Garcia, 2006 U.S. Dist. LEXIS 73178 (D. Ore. October 6, 2006).<\/p>\n
Stop based on computer check that the owner’s DL was expired was valid. When the officer found the owner was not driving because he recognized the driver as not the owner, he could still then check the DL of the driver. State v. Rose, 2006 Ohio 5292, 2006 Ohio App. LEXIS 5280 (4th Dist. September 28, 2006). (Comment:<\/em> This case gives me serious trouble. The officer knew that the driver was not the owner, so the cause for the stop evaporated at that moment. How the court rationalizes the officer being able to go beyond that to check the driver’s DL escapes me. One (i.e.,<\/em> the state) could say that it is no different than checking the vehicle’s license number, but it is vastly different. The vehicle’s license number was done without a stop. Here, the officer extended the stop without any justification. Is extending the stop subject to a de minimus rule in Ohio?)<\/p>\n","protected":false},"excerpt":{"rendered":"
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