The opinion
Mr. Justice Hodges
dissenting:
I respectfully dissent. Admittedly, the affidavit in issue does not approach perfection. It is poorly drafted and lacks preciseness, but probable cause is the criterion and not perfection in draftsmanship. When viewed in the light of probable cause, this affidavit must be said to meet the tests set forth in the majority opinion for the validity of an affidavit underlying a search warrant. Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 ; Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , *41 21 L.Ed.2d 673 ; Hernandez v. People, 153 Colo. 316 , 385 P.2d 996 .
First, the affidavit does establish the reliability of the informant. It states that the informant was previously reliable — a fact which though not in itself sufficient to establish reliability, still is not to be discounted. It states that the previously reliable informant purchased L.S.D. and S.T.P. “on two occasions within the past five days” and delivered the purchases to the sheriff’s department. Analysis of the purchases verified the existence of L.S.D. and S.T.P., the affidavit states. The affidavit further states the specific amounts of other drugs seen by the informant and relates that “[T]he informant also saw instruments for use in smoking marijuana on the premises.” (Emphasis added.)
Certainly the reliability of an informant may be firmly established from previous reliability plus personal eyewitness observation by the informant in addition to police corroboration. In fact this combination was exactly what was held to be sufficient in order to arrest upon probable cause without a warrant in the recent decision People v. Martinez, 173 Colo. 17 , 475 P.2d 340 , cited by the majority. There a previously reliable informant told detectives that he had been shown a check by defendant and the informant described both the check and the defendant and his whereabouts. Detectives determined that the check described had been stolen and arrested the defendant and recovered the check. This court held that there was probable cause for the arrest and that there had been no unlawful search and seizure. However the same three elements for establishing reliability of an informant are held to be insufficient here: (1) the informant was previously reliable; (2) the informant made purchases on the premises and saw instruments relating to smoking marijuana on the premises; (3) analysis of the informant’s purchases verified the presence of L.S.D. and S.T.P.
The majority relies upon Spinelli, supra, and the recent *42 decision of this court Smaldone v. People, 173 Colo. 385 , 479 P.2d 973 . The factual settings in those cases are not at all related to the instant case. Both Spinelli and Smcddone refuted the idea that probable cause could be based upon the assertion that a person was a “well known” or “notorious” gambling figure. That situation is simply not involved in this case.
Perhaps the real basis for the majority opinion is that the affidavit should fail because it is not certain from the affidavit that the described transactions relate to the described premises. But the affidavit describes that the informant states that there are L.S.D. and S.T.P. capsules and marijüana at the premises; that the informant has made purchases of the same; and the informant also saw instruments for use in smoking marijuana on the premises. The first sentence of the affidavit specifically states “[T]he premises known as 1532 9th Ave. . . .” The majority opinion would apparently require every clause of the affidavit to be followed by the phrase “at the premises known as 1532 9th Ave.” I do not think that the state or federal constitutions require such super-technical drafting of affidavits.
In testing the sufficiency of a supporting affidavit, the United States Supreme Court in United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 , observed: “These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common laio pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police *43 officers from submitting their evidence to a judicial officer before acting.” (Emphasis added.)
Considering the entire contents of this affidavit, in the light of the foregoing discussion, I believe that it fully complies with the standards and guidelines of Aguilar and Spinelli.
I would affirm the ruling of the trial court in denying the motion for suppression.