People v. Hoffman

293 P.3d 1

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.James T. HOFFMAN, Defendant–Appellant.

No. 08CA1008.

Colorado Court of Appeals, Div. III.

April 15, 2010.

Rehearing Denied June 3, 2010.^*

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge RICHMAN.

Defendant, James T. Hoffman, appeals the trial court's order denying his motion to suppress evidence seized during the execution of a search warrant. Pursuant to a conditional plea agreement, defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance while preserving the right to appeal the suppression ruling. We vacate the judgment entered on the plea, reverse the trial court's order, and remand the case for further proceedings.

I. Background

Based upon evidence seized during the execution of a search warrant, defendant was charged with one count each of possession with intent to distribute a schedule II controlled substance, possession of a schedule II controlled substance, and child abuse. Defendant was charged as a special offender for having used, displayed, or had available for use a deadly weapon during the commission of the drug offenses.

Before trial, defendant moved to suppress the evidence obtained during the search and as the “fruit” of an unlawful search. Defendant argued that there was no probable cause to support the issuance of the search warrant because it was based on an anonymous informant's tip without sufficient independent corroboration. Following a hearing, the court denied defendant's motion.

Thereafter, defendant and the prosecution entered into a plea agreement whereby defendant agreed to plead guilty to the charge of possession with intent to distribute, with a stipulated six-year sentence to the Department of Corrections, while retaining his right to appeal the court's denial of his motion to suppress. The prosecution agreed to dismiss the remaining counts, including the counts in a separate case. The trial court accepted the plea agreement and sentenced defendant accordingly. This appeal followed.

II. Conditional Guilty Pleas

As a preliminary matter, we address the issue which we requested the parties to address with supplemental briefing: whether conditional guilty pleas are permissible in Colorado and may be reviewed on appeal. Concluding in the affirmative, we then reach the merits of defendant's suppression motion.

The Colorado Supreme Court has not “explicitly endorsed” conditional pleading nor has it explicitly rejected the practice. See People v. McMurtry, 122 P.3d 237, 243 (Colo.2005). In People v. Bachofer, 85 P.3d 615, 617 (Colo.App.2003), a division of this court concluded that a stipulation in a plea agreement preserves the defendant's right to appeal a ruling on a suppression motion, noting that there was no prohibition of conditional pleas in either the statutes or the Colorado Rules of Criminal Procedure and that such pleas are in the interest of judicial economy. After the completion of briefing for this appeal, a different division of this court concluded in People v. Neuhaus, 240 P.3d 391, 394–95 (Colo.App.2009), that in the absence of a statute or rule authorizing conditional plea agreements, they are not permitted under Colorado law.

After considering supplemental briefing on this issue, we agree with the conclusion in Bachofer for the reasons stated there, as well as those set forth below, and decline to follow Neuhaus. See Am. Family Mut. Ins. Co. v. Murakami, 169 P.3d 192, 193 (Colo.App.2007) (one division of the court of appeals is not bound by the decision of another).

Conditional plea agreements can play a significant role in conserving judicial and prosecutorial resources and provide other systemic advantages in criminal cases. As noted in Neuhaus, at least thirty-two jurisdictions, including the federal courts and the United States military, have approved of conditional pleas. Six jurisdictions have adopted conditional guilty pleas by judicial decision. The federal courts have accepted conditional pleas pursuant to Fed.R.Crim.P. 11(a)(2) since 1983.

Although Neuhaus describes several reasons why conditional pleas may not be advantageous, most of which are described in the advisory committee's notes on the federal rule, we agree with the comment of the advisory committee that the obvious advantages of a conditional plea procedure are not outweighed by any significant or compelling disadvantages. The conditional plea is particularly effective when the issue preserved for appeal is dispositive of the case. See Neuhaus, 240 P.3d at 394–95. Although the prosecution in this case has not conceded that a reversal on appeal of the suppression issue would be dispositive, it has stated in its supplemental brief that “principles of fairness and judicial economy might support consideration of this defendant's suppression issue on appeal.”

Accordingly, we conclude that a review of his appeal on the merits is warranted.

III. Motion to Suppress

Defendant argues that the trial court erred when it concluded that (1) probable cause existed to issue the search warrant, and (2) even absent probable cause, the officers acted in good faith in executing the warrant. We agree with defendant.

A. Probable Cause

“Both the United States and Colorado Constitutions prohibit the issuance of a search warrant except upon a showing of probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized.” People v. Pacheco, 175 P.3d 91, 94 (Colo.2006). “Under the Colorado Constitution, the facts supporting probable cause must be reduced to writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.” People v. Scott, 227 P.3d 894, 897 (Colo.2010). “Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.” People v. Miller, 75 P.3d 1108, 1112 (Colo.2003). “To determine whether probable cause exists, we examine the totality of the circumstances.” Id. at 1113;see also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “A court reviewing the validity of a search warrant does not engage in de novo review but rather examines whether the magistrate had a substantial basis for concluding that probable cause existed.” Pacheco, 175 P.3d at 94.

Because the probable cause standard does not lend itself to mathematical certainties and “[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,” United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), appellate courts generally defer to the magistrate's determination. People v. Randolph, 4 P.3d 477, 482 (Colo.2000).

Analysis of the totality of the circumstances includes consideration of the informant's veracity or reliability and his or her basis of knowledge. Id. at 481. An informant's reliability may be gauged in part by whether the informant's identity is known and whether he or she previously has provided accurate information to the police. Id. at 482 n. 2. The depth of detail provided by the informant is also relevant in the totality of circumstances analysis, as courts have inferred reliability from an informant's ability to provide details that could not be obtained easily. Id. at 482.

Here, a deputy of the Mesa County Sheriff's Department obtained a warrant to search defendant's trailer by submitting an affidavit presenting (1) information he received from an unidentified informant, (2) the deputy's observations of activity near defendant's trailer on the night before the warrant was issued, but a month after the informant's information was received, (3) an account of two arrests the deputy made after observing the activity near defendant's trailer, and (4) some criminal history related to prior conduct of defendant. Our review of the totality of the circumstances, including the cumulative effect of the allegations presented in the affidavit, persuades us that there was no substantial basis to conclude that probable cause existed.

1. Unidentified Informant

The deputy's affidavit relates that on February 24, 2007, an informant, “who wants to remain anonymous,” told the deputy that an older white male with defendant's name drove around in a green Buick sedan and distributed methamphetamine from nightfall until about 2:30 a.m. The informant stated that defendant lived in a trailer at the west end of the center aisle of a trailer park. The informant stated that defendant had a fake rock with a hollow center in which he commonly kept methamphetamine, sometimes leaving the rock outside of his residence and sometimes bringing it inside. The informant also stated that defendant kept a large amount of cash—profits from drug deals—at his residence, as well as two to three ounces of methamphetamine, which he normally carried in his underwear. The informant described defendant's automobile and identified defendant in a mug shot. The deputy used a computer system to confirm that a person with defendant's name had an address corresponding to the location described by the informant.

Where, as here, an affidavit is based on an informant's information, the totality of the circumstances analysis depends on all indicia of reliability, including the informer's veracity and the basis of his or her knowledge, the amount of detail provided, and whether the information was current. Pacheco, 175 P.3d at 94–95. “[A]n informant's account of criminal activities need not establish the informant's basis of knowledge, so long as the informant's statement...