Petition — Colorado v. Nunez
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ico-Supreme Coutt, US |
'
StL ee.
82-1 845 MR LD 1983
No. ALL EXANDEP \L. STEVAS,
Tid RK
7%
Aa
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
i>
1.
THE STATE OF COLORADO,
Petitioner,
Vs.
ANTONIO GUADALUPE NUNEZ,
Respondent.
LY
4
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF COLORADO
fy
ww
PETITION FOR WRIT OF CERTIORARI
i’
ae
PAUL Q. BEACOM
District Attorney
STEVEN L. BERNARD
Chief Trial Deputy
Attorneys for Petitioner
450 South Fourth Avenue
Brighton, Colorado 80601
Telephone: (303) 659-7720
QUESTION PRESENTED FOR REVIEW
When both the defendant and _ the
trial court concede during a hearing on a
motion to suppress that the credibility
of the affiant to a search warrant's
affidavit is not at issue, is the trial
court's order requiring the prosecution
to reveal a confidential informant's
identity beyond the scope of the Fourth
Amendment?
bt
TABLE OF CONTENTS
Page
Question Presented for........++eeeees i
Review
Table of Authorities... .cccsccceees iii
Jurisdictional Statement...........--. 1
Siearement Gf Che CAGE... cc ecccedaces 9
ATGUMENE... cece ceseccccscccccccceces 15
NES SS ere 31
Appendix A (Opinion of..........0-- A-1l
the Colorado Supreme
Court)
Appendix B (Motion t0O.......s+ee+- A-11
Suppress)
Appendix C (Motion for.........+... A-15
Disclosure of Informant)
Appendix D (Findings of........... A-18
Fact, Conclusions of
Law and Order)
Appendix E (Order)......seeeeeeees A-23
Appendix F (Motion t0........+see- A-25
Recall and to Stay
Remittitur)
iii
Page
Appendix G (Order Of.........eeee, A-28
Court)
Appendix H (Motion t0....-eeeeeees A-30
Stay Proceedings)
Appendix I (Rule 4.1 (g).....eeee. A-35
Interlocutory Appeals
in Criminal Cases)
TABLE OF AUTHORITIES
Cases
Aguilar v. Texas, 378 U.S..... 16.19.21
108 (1964) 26,30,31
Budreau v. McDowell, 256......cccee-. 28
U.s. 202 Cl9Z3)
Commonwealth v. Bradshaw,........+.-. 24
434 A.2d 181 (Pa.Super.’
1981)
Commonwealth v. Brown,...dcccrcseess 24
429 N.E.2d 4/ (Mass.App.
1981)
Coolidge v. New Hampshire,.......... 28
402 U.S. 443 (19/1)
DelaCruse gy. Peoole, 177 Colo.....cecs 5
46, 492 P.2d bs (1972)
Delaware v. Frouse, 440 U.S...... ge
Franks v. Delaware, 438 U.S..... 2 EY Be
154 (19/8) i WR 4 |
iv
Page
Leowe vw. Gcate, 627 $.0.26..666600ns Fao
761 (Ttex.App. 1982)
Metres ©. Eiiinois, 360 9.5..... = ee
300 (1967) 20 29,20 , 20,905 32
emilee VW. People, 176 Cole... ..sunes 5
494, 483 P.2d 946 (1971)
Oregon v. Kennedy, 72 L.Ed.2d...... 7.8
416 (U.S.Sup.Ct. 1982)
Pariasieso Ww. District Court,.....s«: 5
177.0010, 36, 496 F.26 626
(1972)
People v. Alfinito, 264 N.Y.S....... 24
243, 211 N.E.2d 644 (1965)
Paonia wv, Brown, 165 COLO... vas cecans 5
ee 523 P.2d 986 (1974)
Paouia wv. Bremrielad, 35 Ill... ..0sss 24
Dec. 68/7, 426 N.E.2d 1012
(1981)
People v. Bueno, 646 P.2d 931....6,A-/7
(Colo. 1982) A-21
People v. Dailey, 639 P.2d 1068....6,/7
(Colo. 1982) 8,A-5,A-6,A-9,A-10>
People v. Del Alamo, 624 P.2d........ 6
1304 (Colo. 1982)
People v. Glaubman, 175 Colo......... 5
Mi, BGn Fuae fad CISTI)
Page
People v. Johnson, 83 Mich.App...... 24
k, 200 &.4.40 259 (1978)
Peoe.e ©. Rorce, 196 Colo. 474,....;. 6
Sua £.20 £ (1979)
Deere © Teeter iF Colo... .scce 5
an 550 B04 329 (1976)
weeeie W. Benueem, Si Sh 269......665. 6
(Colo. March 28, 1983)
Peooie w. pereues,. 190 Colo.......... 5
253, 380 £.26 482 (1976)
Peoole v. Martinez, 656 P.2d..... 6,A-7
260 (Colo. 1983) A-9
Peoele ©. Malliioen, 193 Colo......... 6
509, 568 P.2d 449 (1977)
People v¥. Miserave, 187 Colo......... 5
tao, J49 © .26. 242 (1974)
4
People v. Quintana, 183 Colo......:... 5
Bi, 34% Feae 4300 (1973)
Roviaro wv. United States, 353...... Oe
Wins oo Ch¥oT) BE be 9 Ye
Bemee wv. Uertec States, 305.....666. 17
Dio. aan (R936)
Berea 6. Beece. GS Pi 2d. 2c cic cawn 23
565 (Alaska 1980)
South Dakota v. Neville, 74...... 5 ee
L.Ed.2d 748 (U.S.Sup.ct.
1983)
Page
Soanelii v.. United States,....... 19,21
393 U.S. 810 (1969) 26.30.31
Sree ©. Beppe. 363 SO. 26. . sos cwn cus 24
690 (La. 19/78)
Breese ©. wow, 229 0.0.26... 6-ccneus 24
609 (Ila. 1974)
peers ©. Beem. 692 S.0.26.. cn ccwcs 24
Jar temo. i973). cert.
den. 414 U.S. 1069 (1973)
Sere © eee. GIG S.0.26. . i ccwecce 45
365 (Tenn.Cr.App. 1981)
ee eee. GF Bi. es ckaw succes 24
S77. 20s O20 39 €1965)
eee we meee. 207 MOR. wc oe ce cae 24
760, 301 N.W.2d 332 (1981)
Sears vw. Corventes. Sz BM... . oo ose 24
643, 593 P.2d 648 (1979)
eee © Gees. 639 A. 26. nc ce niccncde
526 (Me. 1982)
peere ©. Bemeraing. 5 ROh. «2. ccseces 24
ago. 197, G20 F.2d 210 (1981)
eee eer. LEG APIS wk ck cee 23
BS. ; 510 (1974)
Seer ©. Caen, 26 Been... ss ce cwcs 25
App. 564, 615 P.2d 542 |
(1980) |
Stace oe, teeiew. SOG Mim... .csckcces aie
6, 240 N.W.2d 833 (1976)
vii
Srate ©. Spero, Lil Bub... ..+s0.
309, 314 B26 1355 (1977)
Theodor v. Superior Court,.....
lee Cal. meer. 226, 301
F.2d 234 (1972)
ees OS BERT. B96 oct cece
So.2d 1093 (Ala.Cr.App.
1980), cert. den. 450
U.S. 998 (1980) ©
Tinited States v. BArmes,.......«-.
Gus F.2e6 iz) (C.A.2 1979)
Wat bae Staras vw. BUrke,.. - secs
490 F.Supp. 855 (D.C.Fla.
1980)
United States v. Carmichael,....
)
United States v. Chesher,.......
Gre F.26 1395 (C.A. 9 1982)
United States v. Dorfmann, .....
342 F.Supp. 345 (D.c. lll.
1982)
United States v. Edwards,.......
Sez ¥.2a $50 (.8. 1 1979)
United States v. Metz, 608......
¥.20 187 (6.4.5 1979)
United States v. Schauble,......
Bar ¥.26 145 (G 10 I
ae 981)
United States v. Skramstad,.....
viii
Page
United States v. Weingarten,.......«-. 23
S03 F,cGep. £267 (D.C.8.J.
1979)
Weet@y ©. Feoe.e. L7l COLO. . wcctcvcves 5
28/7, 466 Poa 927 (1970)
Constitutions, Statutes and Court
Rules
Cocotrego Comertitution, ...<.5.s. 7,8,A-14
oe. tomer. . Bed. TV. one cs i,.6,19,20
21,28,29,30,31,A-14
Be U.S.C B. SOG. FES F CS). caw encewee 2
C.8.8. 1973. $12+-22-309., as....10,A4-36
amended
C.8.S. 3975. $i8-18-105 (2) Ca) , «cece 10
as amended A-4 ,A-30
ee. Oh be. ic wuss 1,15,A-2,A-9,A-25
A-31
JURISDICTIONAL STATEMENT
After the trial court suppressed
certain evidence in this’ case, the
prosecution filed an Interlocutory Appeal
in the Colorado Supreme Court pursuant to
C.A.m. S.¥. Ge February 22, 1963, that
Court affirmed the trial court's decision
and issued its remittitur. (Appendix 1).
Because the State may not request a
rehearing of issues decided in an
Interlocutory Appeal (Appendix 35), the
prosecution filed a motion to recall and
to stay the remittitur on February 25,
1983. (Appendix 25). The Colorado
Supreme Court denied that request on
February 28, 1983. (Appendix 28). The
government then asked the trial court to
stay any further proceedings in this case
pending this Court's review. (Appendix
30). The trial judge granted that
request on March 9, 1983. Based upon 28
U.S.C.4. See. 1257(3), thie. Couct. bas
jurisdiction to resolve the issue
presented in this case.
In Delaware v. Prouse, 440 U.S. 648
(1979), the Delaware Supreme Court relied
upon both the federal and that State's
constitutions in its ruling. Although
the prosecution argued that the State
court's references to the State
constitution deprived this Court of
jurisdiction, Justice White wrote that
this Court could review the Delaware
Court's decision because that court had
historically discussed both constitutions
together and had apparently interpreted
them to have the same scope. Because the
Delaware Supreme Court analyzed its own
constitution in light of this Court's
decisions, Justice White stated that the
United States Supreme Court had
jurisdiction to hear that case.
This Court has adopted a similar
analysis in at least two cases decided
after Prouse. In Oregon v. Kennedy, 72
foee.ce 916. (U.S. Sup. Ct. 1962), this
Court decided a case in which the merits
involved both state and federal grounds.
The majority held that this Court had
jurisdiction to resolve that case because
the Oregon Supreme Court had _ relied
heavily upon its prior decisions that
interpreted the United States
Constitution.
In South Dakota v. Neville, 74
Eee. 26 746 (0.8. Sup. Ct. 1983), Justice
O'Connor wrote that this Court would
decide a case in which the South Dakota
Supreme Court referred to both the
federal and State constitutions. The
Neville majority held that the State
Supreme Court had first found that a
statute had abridged the Fifth Amendment
privilege against self-incrimination
before it held that the same statute also
offended South Dakota's Constitution.
While the State grounds may have been
adequate, Justice O'Connor wrote that
those grounds were not independent. As
in Prouse, the cases upon which the South
Dakota Court relied in its opinion
analyzed the United States Constitution.
The Colorado Supreme Court's
decision in this case was based upon its
interpretation of the United States
Constitution, not upon independent and
adequate State grounds. As in Kennedy
and Neville, the Colorado Supreme Court
has historically relied upon this Court's
decisions that involve federal
constitutional principles. The following
Colorado cases, which all involve the
issue of whether a court should order the
prosecution to disclose the idencity of
an informant, reiy, in whole or in part,
upon this Court's decisions in either
Roviaro v. United States, eS Oe eR 53
(1957), McCray v. Iliinois, 386 U.S. 360
(1967) or Franks v. Delaware, 438 U.S.
154 (1978): Whaley v. People, 171 Colo.
nor, S66 P.26 S27 (1970); MeNulty v.
People, if74 Colo. 494, 483 P.2d 946
(1971); People v. Glaubman, 175 Colo. 41,
ee ge ee | (197i); Parlapiano v.
Brecrice Court. i177 Cole. 36. S896: F.24
626 (1972); DeLaCruz v. People, 177 Colo.
G6, 832 F.26 627 (A97Z)s Feople vy.
Catecene, 163 Colo. Sl, 514 F.2d i325
[29/3)3 People v. Brown, 165 Colo. 272,
523 P.2d 986 (1974); People v. Musgrave,
apr GOLe. 133, S23 F.24 313 (1974),
People v. Marquez, 190 Colo. 255, 546
P.2d 482 (1976); People v. Langford, 191
Colo. 87, 550 P.2d 329 (1976); People v.
Mullisean, 193 Colo. 509, 568 P.2d 449
(1977); People v. Korte, 198 Colo. 474,
602 P.2d 2 (1979); People v. Del Alamo,
624 9.206 1304 (Colo. i962); Feopise yv.
Dailey, 639 P.2d 1068 (Colo. 1962);
People v. Bueno, 646 P.2d 931 (Colo.
1982); People v. Martinez, 658 P.2d 260
(Colo. 1983); People v. McLean, 81SC269
(Colo. March 28, 1983).
In the case at bar, the Colorado
Supreme Court relied upon People v.
Dailey, supra, People v. Bueno, supra,
and People v. Martinez, supra. Those
three cases each refer to and rely upon
some of the prior Colorado decisions that
are listed above. Clearly, each of those
three decisions is predicated upon a line
of cases that was resolved by the
Colorado Supreme Court's interpretation
of the Fourth Amendment and by its
reference to, and reliance upon, this
Court's opinions in Roviaro, McCray and
Franks.
In Dailey, the Colorado Court
adopted Franks. That Court also referred
at 1074 and 1075 to the Colorado
ay,
Constitution. However, as in Neville,
those references were made only after the
Colorado Court had resolved the issues
under the United States Constitution and
this Court's decisions. In fact, when
the Colorado Supreme Court discussed the
scope of remedies that a court could
impose if it discovered certain defects
in a search warrant's affidavit, Justice
Lohr wrote at 1075:
We consider it inadvisable to
attempt to develop conse-
quences which would follow
under the United States and
Colorado Constitutions from
each of the various possibili-
ties as to the origin of the
error. [Emphasis supplied].
While the Dailey court referred to
the Colorado Constitution when it
discussed the burden that an accused must
meet at a "veracity hearing” and when it
referred to possible defects ‘in _ an
affidavit that were developed at such a
hearing, when the Colorado Supreme Court
discussed the factors that a trial judge
should consider in deciding whether to
order the prosecution to reveal an
informant's identity, the Colorado Court
relied exclusively upon decisions that
involved the United States Constitution.
In fact, Justice Lohr wrote at 1077 that
Colorado has "adopted the same test" to
determine if disclosure is appropriate
that this Court established in Roviaro.
Clearly, any state constitutional grounds
that could support the Colorado Supreme
Court's decision in this case are neither
independent of the federal grounds, nor
were they applied at all to the question
of when disclosure of the informants
identity is appropriate. This Court,
therefore, has jurisdiction to resolve
the issue raised in this case.
STATEMENT OF THE CASE
On November 7, 1981, pursuant to a
warrant, Denver Police Officers and Adams
County Sheriff's Deputies searched a
house located at 8690 Norwich Street,
unincorporated Adams County, Colorado.
During this search, these officers
searched the person of the defendant,
Antonio Nunez. The officers discovered
fifteen balloons in Mr. Nunez's pocket,
which contained a substance later
analyzed to be heroin. Based upon this
evidence, the prosecution charged the
defendant with Possession of a Schedule I
Controlled Substance, contrary to C.R.S.
10
1973, §12-22-309, as amended, and C.R.S.
1973, §18-18-105(2)(a), as amended.
Through counsel, Mr. Nunez filed a
motion to suppress the heroin seized from
him and a motion requesting that the
trial court order the prosecution to
disclose the name of a confidential
informant upon whose’ statements’ the
search warrant executed on November /7,
1981, was partially based. (Appendix ll,
15). On September 9, 1982, the District
Court held a hearing on those motions.
The affidavit for the warrant was
introduced at the hearing. It contained
information provided by three separate
confidential informants. Defense counsel
stated that he only sought the disclosure
of one informant, alleging that only that
person's credibility was an issue.
The affiant, Denver Police Sergeant
Don DeNovellis, had written that the
informant in question had told Sergeant
DeNovellis that the informant had seen
the defendant with a "large amount of
heroin" within twenty-four hours of
November 7, 1981. The informant said
that the defendant had stated that he had
just returned from Mexico, where he had
purchased five ounces of heroin. The
informant watched the defendant dilute
the heroin and then package it in
balloons. Sergeant DeNovellis wrote that
the informant recognized heroin because
he/she had previously used it. Sergeant
DeNovellis also noted that the informant
had previously provided him with reliable
information that had led to seizures of
heroin.
Defense counsel conceded tnat the
credibility of the affiant, Sergeant
DeNovellis, was not at issue. Instead,
he questioned the informant's veracity.
He argued that the informant's identity
should be revealed so that he could
subpoena the informant to testify at the
suppression hearing.
The defendant testified in order to
support his attorney's allegations. The
defendant stated that on October 31,
1981, he had driven his motorhome from
his house on Norwich Street to. the
mountains in order to hunt. He said he
was accompanied by his father, his son,
his nephew and a friend. The defendant
stated that he had returned from his trip
in the early morning hours of November 6,
1981. While he spent all of that day at
the Norwich Street address, he insisted
that no one visited his home except for
his immediate family and at least eight
other relatives. He denied that he had
travelled to Mexico between October 31
13
and November 6. He also stated that he
did not know what heroin was. The
defense did not present the testimony of
any of the people who allegedly went
hunting with the defendant or of anyone
who had been at his home on November 6,
1981.
The prosecution argued that’. the
trial court should not order the police
to disclose the informant's identity.
First, the prosecutor mentioned that
disclosure of the informant's identity
could endanger that person's’ safety.
Second, he pointed out that defense
counsel was not questioning the affiant's
credibility, but rather the credibility
of the informant. Third, he observed
that the prosecution would not use the
informant as a witness at trial becauve
the informant was not a witness to the
incident upon which the charge was based.
14
Fourth, he submitted that there was no
disagreement between the informant's
statement and the defendant's testimony.
He concluded by stating that defense
counsel had not established that
disclosure of the informant's identity
would be essential to the motion to
suppress.
After hearing arguments of both
counsel, the trial court found that
disclosure of the informant's identity
was necessary to resolve the motion to
suppress and ordered the prosecution to
reveal the informer's name. The
prosecutor subsequently informed the
court that he would not disclose the
informant's identity because he was
concerned for his/her safety. On
October 7, 1982, the trial court, in a
written opinion (Appendix 18), found that
disclosure of the informant was essential
15
to the resolution of the case. Because
the prosecution refused to disclose the
informant's identity, the trial court
suppressed the evidence taken from the
defendant in the search that occurred on
November 7 1981. (Appendix ra
Pursuant to C.A.R. 4.1, the prosecution
then took an Interlocutory Appeal to the
Colorado Supreme Court.
ARGUMENT
THE COLORADO SUPREME COURT'S
DECISION IN THIS CASE
INCORRECTLY EXTENDS THIS COURT'S
DECISIONS THAT INVOLVE
CONFIDENTIAL INFORMANiS BEYOND
THE SCOPE OF STATE ACTION AND
PERMITS AN ACCUSED TO OBTAIN
THE IDENTITY OF A CONFIDENTIAL
INFORMANT BY PRESENTING ANY
EVIDENCE AT ALL.
In Roviaro v. United States, 353
U.S. 53 (1957), this Court recognized and
approved of an "informer's privilege."
16
Justice Burton described the rationale
for that privilege at 59:
The purpose of the privilege
is the furtherance and the
protection of the public
interest in effective law
enforcement. The privilege
recognizes the obligation of
citizens to communicate their
knowledge of the commission of
crimes to law enforcement
officials, and by preserving
their anonymity, encourages
them to perform that
obligation.
However, this Court recognized that this
privilege is not absolute. If a trial
court finds that disclosure of an
informer's name would be helpful to an
accused's defense or if disclosure were
necessary to the just resolution of a
case, then that court could order the
State to relinquish the informer's
identity.
While, in the appropriate case,
justice demands that an accused discover
17
the name of his accuser, this Court has
indicated that trial judges should not
treat the “informer's privilege" lightly.
In Roviaro at 645, footnote 9, this Court
quoted, with approval, Scher v. United
eeeces. 309 U.S. 251. C1938):
[P]ublic policy forbids
disclosure of an informer's
identity unless essential to
the defense, as, for example,
where this turns upon an
officer's good faith.
(Emphasis supplied].
Scher indicates that unless there is a
proper demonstration by an accused that
he needs to know who the informant was in
order to prepare his case, a court cannot
order the prosecution to reveal the
informer's name.
A defendant's request to learn an
informant's identity normally arises in
two situations. First, an informant may
have been a participant in or a witness
t—
Oo
to the event upon which a criminal charge
has been based. in that factual
framework, courts frequently order the
State to teil the accused the informer's
name because the informer may possess
exculpatory evidence. The issue
presented, therefore, is one of guilt or
innocence. , The case at bar does not
involve this situation.
Second, an informant may have
provided the police with information
that, either alone or when combined with
other facts, establishes probable cause
for the police to arrest someone or to
search that person's house or
possessions. If this information is
incorporated into an affidavit for a
search warrant, it must satisfy the two
pronged test that this Court established
in Aguilar v. Texas, 378 U.S. 108 (1964)
te
Se)
end Spinelli v. United States, 393 JU.5.
410 (1969). Of course, the purpose of
the Aguilar-Spinelii test is to require
the police-affiant to include enough
reliable information in the affidavit to
assure a reviewing magistrate that the
police are not inventing "facts" so that
they can obtain judicial approval to
search a suspects home and_ thereby
unjustifiably invade his Fourth Amendment
rights.
However, the Aguilar-Spinelli test
did not resolve the question of whether
an accused could discover the name of the
informant who supplied information
included in a search warrant's affidavit.
In «MeGray v. Iilinois, sce. lS 300
(1967), an accused sought the name of an
informant who had provided a police
officer with information that led to the
accused's warrantless arrest. In
upholding the trial judge's decision to
deny that request, this Court recognized
that when a defendant at a suppression
hearing seeks the name of an informant
who provided information to the police
that led to the seizure of evidence from
him, he seeks to avoid his guilt.
This Court recognized in McCray that
the purpose of the suppression hearing
that involves a confidential informant is
to determine if the police have violated
the Fourth Amendment. Justice Stewart,
quoting New Jersey's Chief Justice
Weintraub, underscored this position at
307-308:
[T]he magistrate is concerned,
not with whether the informant
Tied, but with whether the
atfiant is truthful in his
recitation of what he was
told. If the magistrate
doubts the credibility of the
affiant, he may require that
the informant be identified or
even produced. [Emphasis
supplied].
21
in Franks v. Delaware. 433 0.5. 154
(i978), this Court held that an eccusec,
at a motion to suppress, could attack the
werecity of the affient to «a2 search
warrent's attfidavit. Justice Blackrun
wrote that the purpose of this "veracity
attack'' was to assure that the police did
not mislead a reviewing magistrate and to
protect the Fourth Amendment rights of
citizens. When combined with
Aguilar-Spinelli, Franks provides an
opportunity for both courts and
defendants to assure themselves’ that
police-affiants have told the truth in
their affidavits.
While Franks at 170 left open the
issue of whether an informant's identity
should be disclosed after an accused has
made a proper demonstration that there
were falsehoods in an affidavit, this
Court clearly set out what the
22
_
fundamental elements of that
demonstration must be. Justice Blackmun
described those components at 1/71:
There is, of course, a
presumption of validty with
respect to the affidavit
supporting the search warrant.
To mandate an evidentiary
hearing, the challengers
attack must be more than
conclusory and must be
supported by more than a mere
desire to cross examine.
There must be allegations of
deliberate falsehood or of
reckless disregard for the
truth, and those allegations
must be accompanied by an
offer of proof....Allegations
of negligence or innocent
mistake are insufficient. The
deliberate falsity or reckless
disregard whose impeachment is
permitted today is only of the
affiant, not of any nongovern-
mental informant. [Emphasis
supplied].
This Court's position that a
veracity attack only involves a
police-affiant's, not an informant's,
credibility, has been echoed in state and
federal courts in cases that have been
United States Edwards 602 F.2d &56
(C.A. 1 1979): United States v. Barnes.
604 F.2d 121 (C.A. 2 1979); United States
Mets, 608 F.2d 147, (CA. 3 19TH,
United States v. Carmichael, 489 F.2d 983
(CA. 7 1973); United States v.
Skramstad, 649 F.2d 1259 (C.A. 8 1981):
United States v. Chesher, 678 F.2d 1353
(C.A. 9 1982); United States v. Schauble,
OS? 6©€.20 313 (CLA. 10. 1981): United
States v. Weingarten, 485 F.Supp. 1167
(9.6.8.0 1979); United States v. Burke,
“Me
490 F.Supp. 855 (D.C.Fla. 1980); United
States v. Dorfmann, 542 F.Supp. 345
(B.%.2i1. 2962): Thornton v. State. 390
50.2d 1093 (Ala.Cr.App. 1980), cert. den.
450 U.S. 998 (1980); Schmid v. State, 615
P.2d 565 (Alaska 1980); State v. Keener,
0 «6Axvie. S62, S20 F.26 518 (1978);
Theodor v. Superior Court, 104 Cal.Rptr.
996. S01 P.28 234 (1972); Feoute ¥.
Brumfield, 55 I111.Dec. 687, 426 N.E.2d
1012 (1981); State v. Boyd, 224 N.W.2d
D nn
£09 (la. 1974); State v. Hemerding, 92
Kan.App. 797, 626 P.2d 210 (1981); State
v, Babbit. 363 So.2d 690 Ue. i378)
State v. Chase, 439 A.2d 526 (Me. 1982);
Commonwealth v. Brown, 429 N.E.2¢6 47
(Mass.App. 1981); People v. Johnson, 83
Mich.don. 1, 266 B.M.2¢ 259 (Pre);
State v. Luciow, 308 Minn. 6, 240 N.W.2d
833 (1976); State v. Boyd, 492 S.W.2d 787
‘Mo. 1973), cert. den. 414 U.S. 1069
(19073); State v.. Butier, 207 Neb. 760,
201 N.W.2d 332 Ci9G3); State v. Spero,
1:7 B.H. 199, 371. A.2d 2400: ti977);
Crate wv. Rurnett, 62 H.J; 377, <9: A.2d
39 (1965); State v. Cervantes, 92 N.M.
643, 593 P.2d 648 (1979); People v.
Alfinito, 264 N.Y.S. 243, 211 N.E.2d 644
(1965); Commonwealth v. Bradshaw, 434
25
A.2¢ 183 (Pa.Super. 1981); State Vv.
Brown, 618 $.W.2d 365 (Tenn.Cr.App.
1981); Laque v. State, 627 S.W.2d 7/81
(Tex.App. 1982); State v. Larson, 26
Wash.App. 564, 613 F.2d 542 (966).
Aside from Colorado, research has not
revealed any jurisdiction that permits an
accused to attack only an informant's
credibility at a veracity hearing and
then to ask a trial court to order the
prosecution to disclose the informant's
identity.
There are at least two reasons why
this Court in McCray and Franks limited
the situations in which an accused could
successfully request and obtain = an
informer's name. First. if a veracity
attack is not limited to the affiant, an
accused will frequently present
unverifiable evidence that the informant
has lied. As this Court recognized in
mand
wlaié
O
e
e de
A
a
+
a
—
w hd
*
a iain a|
had Nad kee ee BS
WY 4) hu ert
3: 6 Ww
4 eed ha ©) ce
w UW O Ved oegnrn +o Mw wg &
MO Wi wy @& eo | Ab oowU mW
- Viewed HW OC oe VvaonwaganWdordwe@®d sw
> me OOM MPO BOs at Oo Oe wo Ss
CS CC ® aH Ved WO W
person
informant
in the
loons that
,
*
}
able
the
i
oved rel
~
nr
as
.
only been
-
containe
had not
affidavit, but the subsequent search by
fhe police further corroborated the
informant's reliability when they
discovered heroin, contained in balloons,
on the defendant's person. Yet, at the
motion to suppress, the defendant said
that the informant could not have seen
what the informant stated that he or she
saw. The defendant then testified that
he did not know what heroin was, although
the police had taken a large amount of it
from his own pocket.
Ine. danger of not tlimiting a
weracity challenge to the affiant’s
credibility is clear. If an accused can
attack an informant's statements, then
only the human imagination can limit the
testimony about the informant that the
accused could present. Because, unlike
an officer-affiant, an informer is not
28
available for consultation or testimony
during a suppression hearing, it would be
difficult, if not impossible, to refute
even the wildest defense allegations. In
this situation, as McCray points out,
trial judges would have little choice but
to order the prosecution to reveal the
informer's name. This result would
eviscerate the "informer's privilege.”
Second, the Fourth Amendment, and
the exclusionary rule that is used to
protect that amendment, only regulate
government action. Budreau v. McDowell,
956 U.S. &65 (1921): Cooliace v. Bev
Hampshire, 402 U.S. 443 (1971). While a
trial court should suppress evidence if
that action is necessary to deter police
misconduct, it cannot extend the Fourth
Amendment's reach to private action. As
the long list of cases cited above
indicates, even ee an informant
intentionally lies, a trial court
reviewing an affidavit should not, and
cannot, take any action against the State
unless the police-affiant knowingly or
recklessly participated in that lie. In
order to convince a court to order the
informant's name to be disclosed, a
defendant must establish some police
misconduct that can only be properly
investigated by questioning the
informant.
In the case at bar, both the trial
court and defense counsel stated that the
affiant's credibility was not at issue.
Therefore, the only possible reason that
could justify a disclosure order
vanished. In other words, without an
allegation that the State's
representative had abridged the
defendant's constitutional rights, the
Fourth Amendment could not be invoked to
30
obtain a remedy. But, the trial court
nonetheless ordered the prosecution to
disclose the informer's name. When the
Colorado Supreme Court affirmed that
decision, it incorrectly extended the
Fourth Amendment beyond State action and
into private activity. Obviously, the
Fourth Amendment does not go that far.
In this case, the search warrant's
affidavit complied with the
Aguilar-Spinelli test. By satisfying
those conditions, the affidavit provided
the reviewing magistrate with probable
cause to believe that the defendant
possessed heroin. At the suppression
hearing the defendant did not satisfy
Franks or McCray because he conceded that
the affiant's credibility was not at
issue. However, even though the State
followed each of the rules that this
Court has established to govern cases
i i
that involve confidential informants, the
Colorado Supreme Court held that the
informant's name must nonetheless. be
revealed. If that disclosure can be
obtained on flimsy evidence designed only
to impeach a private person, then this
Court's carefully crafted rules have been
rendered meaningless and the "informer's
privilege" has died.
CONCLUSION
In it's decision in this case, the
Colorado Supreme Court has effectively
emasculated the "informer's privilege."
While an accused Fourth Amendment rights
should be protected, this Court's
decisions in Aguilar, Spinelli, Roviaro,
McCray and Franks have established a
process with which the State must comply
in order to obtain a search warrant.
That process not only protects. an
Lo
Nh
accused's privacy by assuring that the
police must supply a magistrate with
mation before a
a)
adequate, reliable info
search warrant is issued, but it also
permits an accused to attack that warrant
after it has been executed by
demonstrating that the government's
agents lied or recklessly disregarded the
truth. The opinion in this case subverts
that process, and the strong public
interest behind the “informer's
privilege," by permitting an accused, who
supplies any evidence at ali, to obtain
the name of an informant even when the
actions of the State's representatives
have not been questioned. This Court
should issue a writ of certiorari to the
Colorado Supreme Court in order to review
this decision. Then, in order to stop
the erosion of the "informer's privilege”
that will harshly and irrevocably cripple
Lo
i)
fair and effective law enforcement, this
Court should reverse that decision.
Respectfully submitted,
PAUL Q. BEACOM
District Attorney
Seventeenth Judicial District
By: C4 2A Uf ———
Paul Q. Beacon,
District a
450 South Fourth Avenue
Brighton, CO 80601
(303) 659-7720
Chief Trial Deputy
450 South Fourth Avenue
Brighton, CO 80601
(303) 659-7720
LATA TLD PITTA TVA UPE ATTTATIC 7
{} | | -
- LI hawt NUNEZ,
T) +
Defendant -Appellee
Interlocutory Appeal from
the District Court of the
County of Adams
Honorable Philip F. Roan, Judge
EN BANC ORDER AFFIRMED
Paul Q. Beacom, District Attorney
Steven L. Bernard, Chief Trial Deputy
Brighton, Colorado
Attorneys for Plaintiff-Appellant
Karp, Goldstein & Stern
Kenneth H. Stern
Denver, Colorado
Attorney for Defendant-Appellee
JUSTICE DUBOFSKY delivered the opinion of
the Court.
A-2
In this interlocutory appeal under
C.A.R. 4.1, the People seek reversal of
the Adams County district court's order
Suppressing evidence seized during a
search of the defendant's house. The
Suppression order was entered following
the district attorney's refusal to
disclose the identity of one of the
confidential informants upon whose
Statements the affidavit in support of
the search warrant was based, in part.
We affirm the suppression order.
On November 7, 1981, police sergeant
Don DeNovellis executed an affidavit for
a search warrant before a Denver district
court judge, who issued a warrant
authorizing a search of two motor
vehicles and a house at 8690 Norwich
Street in Denver. The affidavit stated
in part:
A-3
On 11-7-81 your affiant
received information from
a previously reliable
confidential informant,
that the said previously
reliable confidential
informant was at the
location of 8690 Norwich
Street in the past 24
hours of that date
(11-7-81) and observed
Antonio "Pic" Nunez with
a large amount of heroin
in his possession. This
previously reliable
confidential informant
further related that Mr.
Nunez was in the process
of cutting (diluting)
heroin and was also
putting the heroin in
balloon packages. Mr.
Nunez told the previously
confidential informant
that he had just returned
from Mexico and had
purchased five ounces of
heroin while he was there,
bringing the heroin across
the Mexico-United States
border himself. This
previously reiiable
confidential informant is
knowledgeable in the
packaging and appearance
of heroin and has admitted
to your affiant that said
informant has used heroin
in the past. This
previously reliable C.I.
has been reliable on at
least two occasions within
the past-18 months, giving
your affiant information
involving narcotic activity,
and resulting in the recovery
of quantity of heroin.
Upon receiving the warrant,
narcotics officers searched the house at
8690 Norwich Street and seized 9.6 grams
of heroin from the defendant. Nunez was
arrested and charged with one count of
possiession of heroin, a Schedule I
controlled substance, in violation of
section 18-16-105, C.R.S. 1973 (1978
Repl. Vol. 8, 1982 Supp.).
The defendant filed motions’ to
suppress and for disclosure of
confidential informants. No supporting
affidavit accompanied either motion. At
the motions hearing, the district court
granted the defendant's oral motion to
amend the motion to suppress and to
present an offer of proof in lieu of the
>
1
U
supporting affidavits required by
People v. Dailey, 639 P.2d 1068 (Colo.
1982). The district attorney stated that
while he preferred that the affidavits be
filed, he would consent to the
presentation of the offer of proof in
their stead. The court then took
testimony on Nunez' veracity challenge to
the statements of the confidential
+
. i
informant.
The defendant ‘testified that he had
been on a hunting trip from October 31
until November 6, 1981, and that no one
but family members had been in his house
on November 6, the date that the
confidential informant was supposed to
have seen him cutting heroin. The
defendant also stated that he had not
been to Mexico nor told anyone that he
had been to Mexico during the week of
October 31 to November 6. Sergeant
A-6
DeNovellis testified that his informant
alleged that he or she had been at Nunez’
house on November 6, had seen Nunez with
heroin then, and had been told by Nunez
about his recent return from Mexico.
Given the conflict in testimony, the
district court ordered the district
attorney to disclose the identity of the
confidential informant or face
suppression of the evidence seized during
the search. When the district attorney
refused to divulge the identity of the
informant, the court granted the
defendant's motion to suppress.
‘The People argue that the disclosure
of confidential informants is limited to
situations in which the veracity of the
affiant-police officer is successfully
attackéd. This contention misapprehends
the holding of People v. Dailey. Dailey
recognized chat errors in an affidavit
a "
an result "from the
C —_— a ene = 4 7 5
or the informant 639 F.2d at if.
Wh - £ TI AcT4 Aa a Arrant Fu = artne th
When, rolliowing a veracity nearing, che
probability of one of those kinds of
error has been found, the election of
remedies or sanctions is left to tae
discretion of the district court. The
necessary foundation for the court's
ordering
ct
he
1?)
rs
hw
o
exercise of discre
disclosure is a showing of a reasonable
basis in fact to question the accuracy of
is. People
v. Martinez, P.2¢4 (Colo. 1983)
the informant's recita
(No. 82SA294, announced February 7, 1983)
’
slip op. at 5; People v. Bueno, 646 P.2d
931, 935-6 (Colo. 1982).
Our result in this case follows from
People v. Martinez, supra.> Where the
A-8
district court has determined that the
defendant has shown a good faith basis in
fact to question the accuracy of an
affidavit containing recitals based on
information suppiied by an unnamed
informant and consequently has ordered
that the informant be disclosed or be
produced for an in camera hearing, we
will not disturb that ruling. When the
People refused to disclose the identity
of the informant, the district court
properly suppressed the evidence seized
during the search of the defendant's
house.
The order of the district court is
affirmed.
/1
The defendant limited his challenge to
that portion of the affidavit set out in
text, supra. He specifically identified
as untrue the allegations that a
confidential informant had been at his
house on November 6, 1981, and that he
had told that person of his recent return
from Mexico. The remainder of the
affidavit contained the allegations of
two other confidential informants,
neither of whom specifically attested to
having seen the defendant participate in
any criminal activity.
[2
The defendant argues that because
suppression was ordered as a sanction for
nondisclosure and was merely collateral
to the disclosure issue, this court lacks
jurisdiction to hear the People's
interlocutory appeal under C.A.R. Rie ©
ruling granting a defendant's pre-trial
motion to suppress is subject to
interlocutory appeal under C.A.R. ee
The defendant's contention is controlled
by our holding in People v. Dailey,
supra, where we determined that an order
granting the defendant's motion: to
disclose a confidential informant was "so
intimately related" te the order
suppressing evidence that it fell within
the interlocutory appeal authorization of
PAG 4.1. 639 F.2d at 1076, n. S.-
i3
We note that here, as in Martinez, the
defendant failed to comply with the
prerequisites of People v. Dailey for
motions and affidavits filed to seek
suppression of evidence seized under a
challenged search warrant. The People
acquiesced in the waiver of those
prerequisites at the hearing, however,
and do not raise the point on appeal.
/4
The People did not
C request-an in camera
hearing at which the informant would be
present for judicial interrogation in
accordance with the guidelines in Dailey,
Sure at i077, n. ii
A-ll
APPENDIX B
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF ADAMS
AND STATE OF COLORADO
Case.No. 81F1429
THE PEOPLE OF THE STATE
OF COLORADO,
Vs.
ANTONIO NUNEZ,
Defendant.
MOTION TO SUPPRESS
COMES NOW the defendant, by his
orneys, KARP, GOLDSTEIN & STERN by the
undersigned, and moves this Court for an
Order suppressing as evidence against the
defendant in any criminal proceedings,
any and all statements elicited from the
defendant by law enforcement officers on
the date of and subsequent to defendant's
arrest for the crime alleged in the above
captioned action, and to suppress any and
all physical evidence seized from the
person, presence, vehicle and/or premises
of the defendant or visual observations
made by law enforcement officers, on or
about the time of said arrest and as
grounds for this Motion defendant states
the following:
i On or about November 7, 1981,
the defendant was arrested by members of
the Denver Police Department and Adams
County Sheriff's Department.
rae Subsequent to the defendant's
arrest, certain physical evidence was
seized from the person, presence, or
vehicle of the defendant, statements may
have been elicited from the defendant by
said officer concerning the alleged
offense charged in this action and visual
observations may have been made by said
officers.
a There was no probable cause to
sustain the issuance of a search warrant
in the instant case, the search warrant
that was obtained was improperly
executed, the defendant was arrested
without first procurring an arrest
warrant, the evidence seizured was not
\
seized pursuant to a valid arrest nor was
said seizure properly incident to or
within the scope of a valid arrest and in
general, the aforementioned search of the
defendant's residence and his arrest took
place in violation of state and federal
law.
&. At the time of his arrest,
statements were elicited from the
defendant without the proper advisement
and said statements were not voluntarily
made by the defendant.
a Any evidence obtained
subsequent to and at the time of the
above mentioned arrest were the fruits of
an invalid arrest and was obtained under
such circumstances that its use in &
A-14
trial against this defendant would
constitute an illegal search and seizure
and would constitute a deprivation of
defendant's life and liberty without due
process of léw, in violation of -the
Fourth, Fifth and Fourteenth Amendments
to the United States Constitution and
Mrciele if, Sections 7 snd 25 of the
Colorado Constitution.
WHEREFORE, defendant requests that
this Court enter its Order suppressing as
evidence against him the above described
evidence and statements and all evidence
which is the direct fruit of the above
described evidence and statements.
Respectfully submitted,
KARP, GOLDSTEIN & STERN
BY: /s/ Kenneth H. Stern
Attorney for defendant
1760 Lafayette Street
Denver, Colorado 80218
(303) 861-8580
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF ADAMS
AND STATE OF COLORADO
Case No. 81F1429
THE PEOPLE OF THE STATE
OF COLORADO
vs.
a arT'T’ xT T KTT rT.TT
Fuivi NIO NUNEZ,
Defendant.
MOTION FOR DISCLOSURE OF INFORMANT
COMES NOW the defendant by and
through his attorneys KARP, GOLDSTEIN &
STERN, and moves this Court to Order the
law enforcement authorities involved in
the instant case to disclose the name,
address, and phone number of Oki
informants employed in the instant case
and as grounds’ therefore states the
following:
] In obtaining information which
-~- *
was subsequently used in the search
warrant, the law enforcement authorities
A-16
involved in the instant case mentioned
the presence and involvement of unnamed
confidential informants and unnamed
citizen witnesses.
ya Both for purposes of
challenging the legality of the search in
the instant case, as well as defending
against the instant charges, the
defendant needs disclosure of the names,
addresses, and phone numbers, of said
informants and citizen witnesses.
a In the interest of justice, and
in order to protect the due process
rights of the defendant and his right to
a fair trial and the effective assistance
of counsel, disclosure of the above
described informants and citizen
witnesses is absolutely essential.
WHEREFORE, the defendant requests
that this Court order disclosure of the
aforementione
witnesses.
KARP, GOLDSTEIN & STERN
BY: /s/ Kenneth H. Stern
Attorney for defendant
1760 Lafayette Street
Denver, Colorado 80218
(
APPENDIX D
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF ADAMS
AND STATE OF COLORADO
Criminal Action No. 82CR0025
THE PEOPLE OF THE STATE
OF COLORADO,
VS.
ANTONIO G. NUNEZ,
Defendant.
FINDINGS OF FACT, CONCLUSIONS OF
LAW AND ORDER
The Defendant's MOTION FOR
DISCLOSURE OF INFORMANT having come
before the Court on September 9, 1982,
and the Court having heard testimony and
the arguments of counsel and being fully
advised in the premises, does make the
following Findings of Fact, Conclusions
of Law and Order:
hk On November 7, 1981, a member
or members of the Denver Police
Department prepared an affidavit for
A-19
search warrant and based upon said
affidavit, obtained a search warrant for
8690 Norwich Street, Adams County,
Colorado, and two named vehicles.
‘ During the execution of said
search warrant, approximately tifteen
balloons of heroin were recovered.
i The affidavit, upon which
issuance of the search warrant was
predicated, related information from a
previously reliable confidential
informant that the informant was at the
location of 8690 Norwich within the
twenty-four hour period from November 6,
1981 to November 7, 1981 and observed
Antonio "Pic" Nunez in possession of a
large amount of heroin, that Nunez was
cutting the heroin, that Nunez was
putting the heroin in balloon packages,
that Nunez told the informant that he had
just returned from Mexico where he had
A-20
purchased five ounces of heroin which he
brought into the United States.
4. The Defendant filed a motion
seeking disclosure of the identity of the
informant described in Paragraph 3 above.
a The Motion for Disclosure is
two pronged alleging a need for the
purpose of challenging the legality of
the search and a need for defending
against the substantive charge.
6. At the hearing, the Defendant
testified that he had been on a hunting
trip for the week proceeding the date of
the affidavit and search, having arrived
home on November 6, 1981. He also
testified he had driven the motor home
described in the affidavit on the hunting
trip. The defendant further testified
that from the time he returned home to
the time the search warrant was executed,
only immediate family members had been
A-21
.
present in his home and that he had not
engaged in the activities described by
the confidential informant.
a: The Court finds that as to the
legality of the search issue, the
Defendant has made the required initial
showing pursuant to People v. Bueno, Vol.
VI, Brief Times Reporter, p.522 (June,
8. The Court finds that as to the
issue of disclosure on the basis of the
informant's being an essential witness on
the issue of guilt or innocence, the
Defendant has made a showing of a
reasonable basis in fact to believe the
informant is a likely source of relevant
and helpful evidence to the accused.
9. The Court, therefore, orders
the District Attorney to disclose the
identity of the confidential informant to
the Defendant and failing that, the Court
A-22
orders suppression of the evidence seized
pursuant to the search warrant.
Done and signed in Open Court this
7th day of October, 1982.
BY THE COURT:
/s/ Philip F. Roan
Philip F. Roan
Chief Judge
copies to counsel
10/7/82
A-23
APPENDIX E
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF ADAMS
AND STATE OF COLORADO
Criminal Action No. 82CRO0025
THE PEOPLE OF THE STATE
OF COLORADO,
vs.
ANTONIO G. NUNEZ,
Defendant.
ORDER
THE COURT being advised by the
District Attorney that the identity of
the confidential informant will not be
disclosed to the Defendant, the evidence
which is the subject of the Defendant's
Motion to Suppress is. therefore,
suppressed.
Done and signed in Open Court this
12th day of October, 1982.
/s/ PHILIP F. ROAN
Philip F. Roan
Chief Judge
copies to counsel
10/12/82
A-25
APPENDIX F
SUPREME COURT, STATE OF COLORADO
Case No. 82SA512
THE PEOPLE OF THE STATE
OF COLORADO,
Vs .
ANTONIO GUADALUPE NUNEZ,
Defendant.
MOTION TO RECALL AND TO
STAY REMITTITUR
The plaintiff, by counsel,
respectfully requests that this Court
recall the remittitur issued in this case
and stay the issuance of any remittitur
for sixty days. As grounds for this
motion, the plaintiff alleges:
; The interlocutory appeal in
this case was filed pursuant to C.A.R.
Rods
re This Court affirmed the
district court's decision in an opinion
issued on February 22, 1983.
. o This Court issued its
(a)
remittitur on February 22, 198
4. The prosecution, by a petition
for a writ of certiorari, intends to seek
review of this Court's decision in this
case in the United States Supreme Court.
a. Pursuant to United States
Supreme Court Rule 20, the prosecution
mee «6Fiie 0 6te 6peticion for a writ of
certiorari within sixty days of this
Court’s finel decision, or by April 23,
1983.
6. This Court should recall the
remittitur issued on February 22, 1983,
and stay the issuance of any remittitur
oncii April 23, 1983, so that’ the
prosecution can seek review in the United
States Supreme Court of this Court's
decision in this case.
WHEREFORE, the plaintiff
respectfully requests that this Court
r previously issued
and stay the issuance of any
PAUL Q. BEACOM,
District Attorney
Seventeenth Judicial District
By: /s/ Steven L. Bernard
Steven L. Bernard, #889/
Chief Trial Deputy
450 South Fourth Avenue
Brighton, CO 80601
(303) 659-7720
A-28
APPENDIX G
SUPREME COURT, STATE OF COLORADO
Case No. 82SA512
INTERLOCUTORY APPEAL FROM THE
DISTRICT COURT, ADAMS COUNTY
THE PEOPLE OF THE STATE
OF COLORADO,
VG.
ANTONIO GUADALUPE NUNEZ,
Defendant.
ORDER OF COURT
Upon consideration: of the Motion to
Recall and to Stay Remittitur filed by
counsel for Plaintiff-Appellant herein,
and now being sufficiently advised in the
premises,
It Is This Day Ordered that said
Motion shall be, and the same hereby is,
Denied.
BY THE COURT, FEBRUARY 28, 1983.
cc:
A-29
Steven L. Bernard
Chief Trial Deputy
450 South Fourth Avenue
Brighton, CO 80601
Kenneth H. Stern
KARP, GOLDSTEIN & STERN
1763 Franklin Street
Denver, CO 80218
A-30
APPENDIX H
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF ADAMS
AND STATE OF COLORADO
Case No. 82CR0025
THE PEOPLE OF THE STATE
OF COLORADO,
vs. .
ANTONIO G. NUNEZ,
Defendant.
MOTION TO STAY PROCEEDINGS
The Plaintiff, by counsel,
respectfully requests that this Court
stay all proceedings in this case pending
further appellate review.
AND AS GROUNDS THEREFORE STATES:
e The plaintiff is charged with
Possession of Schedule I Controlled
Substance contrary to C.R.S. 1973,
§12-22-309, as amended and C.R.S. 1973,
§18-18-105(2)(a), as amended.
A-31
7. On October 7, 1982, this Court
ordered the prosecution to REP: a
confidential informant.
a. Pursuant to C.A.R. 4.1, the
prosecution filed an interlocutory appeal
in the Colorado Supreme Court to seek
review of the Court's decision.
4. On February 22, 1983, the
Colorado Supreme Court affirmed this
Court's decision in People v. Nunez,
829SA512. The Supreme Court issued its
remittitur on that same day.
5. On February 25, 1983, the
prosecution filed in the Colorado Supreme
Court a Motion to Recall and to Stay
Remittitur. The prosecution requested
that action because it intends to
petition the United States Supreme Court
for a writ of certiorari in order to
review the Colorado Supreme Court's
decision.
A-32
a. The Colorado Supreme Court
denied that request.
6. The prosecution still intends
to petition the United States Supreme
Court for a writ of certiorari in this
case. Pursuant to United States Supreme
Court Rule 20, this petition must be
filed within sixty days of the Colorado
Supreme Court's decision, or by April 23,
1983.
7. Therefore, this Court should
stay further proceedings in this case so
that the prosecution can obtain
appropriate review of the Colorado
Supreme Court's decision.
8. Because a petition for a writ
of certiorari to the United States
Supreme Court is the only process that
the prosecution can use to obtain review
of the Colorado Supreme Court's decision
in this case, it is the prosecution's
A-33
position that the time taken to petition
for that writ should be excluded from
speedy trial calculations.
WHEREFORE, the plaintiff
respectfully requests that this Court
stay any further proceedings in this case
until the United States Supreme Court has
decided whether to issue a writ of
certiorari to the Colorado Supreme Court.
Respectfully submitted,
PAUL Q. BEACOM
District Attorney
Seventeenth Judicial District
By: /s/ Steven L. Bernard
Steven L. bernard, #889/
Chief Trial Deputy
ORDER
The Court, having read this motion
and being informed of the surrounding
circumstances, stays all further
proceedings in this case until the United
States Supreme Court has decided whether
A-34
eo issue a writ of certiorari to the
Colorado Supreme Court.
TONE THIS 9th day of March, 1983.
/s/ Philip F. Roan
DISTRICT FOURT JUDGE
(g) Disposition of Cause. No oral
argument shall be permitted except when
ordered by the court. The decision of
the court shall be by written opinion,
copies of which shall be transmitted by
the clerk of the court by mail to the
trial judge and to one attorney on each
side of the case. No petition for
rehearing shall be permitted. Remittitur
shall accompany said opinion.
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