People v. Quintero

¶1dissenting:

¶2I respectfully dissent.

¶3The fourth amendment to the United States Constitution assures to the people the right to be secure in their persons, houses, papers and effects, and free from unreasonable searches and seizures. Among other things, this amendment requires that arrests be based upon probable cause — that is, the circumstances must be such as to support a reasonable belief that a crime has been committed by the person arrested. We must not lose sight of the fact that a probable cause determination involves a common-sense question: what would reasonable people believe under the circumstances?

¶4In People v. Weinert, 174 Colo. 71, 74, 482 P.2d 103, 104-05 (1971), we said:

“ ‘[Fjrobable cause exists where the facts and circumstances within the arresting officers’ knowledge are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Lucero v. People, 165 Colo. 315, 438 P.2d 693, cert. den. 393 U.S. 893 [89 S.Ct. 217, 21 L.Ed.2d 173]

¶5It is an unfortunate fact, but a fact nonetheless, that a high incidence of residential burglaries is one of the realities of modern urban life. The circumstances surrounding the incident here in question were highly suggestive of a recent burglary. In my view, the officers would have been derelict in their duty had they merely released Quintero. As Justice White observed in his *952dissenting opinion in Stone v. Powell, 428 U.S. 465, 539, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976):

“Making the arrest in such circumstances is precisely what the community expects the police officer to do. Neither officers nor judges issuing arrest warrants need delay apprehension of the suspect until unquestioned proof against him has accumulated. The officer may be shirking his duty if he does so.”

¶6There is no suggestion here that the officers were not acting in good faith. In fact, one officer testified that after stopping Quintero and questioning him Quintero was not arrested immediately because the police did not feel that they had probable cause. It was only after Mrs. Bergan identified herself as the caller that the defendant was placed under arrest. The information provided by the citizen who lived in the area and who observed the defendant prowling around a neighbor’s home, in conjunction with the suspect explanation given by the defendant, caused the police to have sufficient facts to believe that a crime had been committed. See People v. Mathis, 189 Colo. 534, 542 P.2d 1296 (1975); People v. Glaubman, 175 Colo. 41, 485, P.2d 711 (1971). I cannot conclude that the actions of the police were anything but reasonable under circumstances that warranted the conclusion that an offense had been committed. The fourth amendment requires no more.

¶7Conceding for the sake of argument that the police officers did not have probable cause to arrest when they did, I would remand to the trial court with directions to consider the applicability of the “inevitable discovery rule” to the facts of this case.

¶8In Brewer v. Williams, 430 U.S. 387, 406-07 n. 12, 97 S.Ct. 1232, 1243 n. 12, 51 L.Ed.2d 424 (1977), the United States Supreme Court, after concluding that statements made by the defendant about the location of a body were unconstitutionally obtained, stated as follows:

“While neither Williams’ incriminating statements themselves nor any testimony describing his having led the police to the victim’s body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams.”

¶9When the case was returned to the state courts, it was determined that given the procedures being used to search for the body the police would have found it in three to five hours without Williams’ statement. State v. Williams, 285 N.W.2d 248 (Iowa 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980).

¶10In adopting the inevitable discovery rule, the Iowa court adopted a two-part test for its application. See W. LaFave, Search and Seizure § 11.4 at 620-28 (1978). First, the doctrine may be used only when the police have not acted in bad faith to accelerate the discovery of the evidence. Second, the state must prove that the evidence would have been found without the illegal activity and must prove how it would have been found. The state has the burden of showing these two elements by a preponderance of the evidence.

¶11The New York Court of Appeals has also adopted the rule, emphasizing that literal inevitability of discovery is not required. Rather, what is required is a “very high degree of probability that the evidence in question would have been obtained independently of the tainted source.” People v. Payton, 45 N.Y.2d 300, 380 N.E.2d 224, 230-31, 408 N.Y.S.2d 395, 402 (1978), rev’d on other grounds, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A number of other courts have also adopted the rule. See, e.g., State v. Phelps, 297 N.W.2d 769 (N.D.1980); State v. Beede, 119 N.H. 620, 406 A.2d 125 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980); United States v. Bienvenue, 632 F.2d 910 (1st Cir.1980).

¶12Here the trial court suppressed not only the television set, but also any testimony by the police officers concerning the serial number of the set found with Quintero. I believe that on remand the People should be permitted to introduce evidence whether *953the serial number would have been discovered without the illegal arrest and, if so, how it would have been found.

¶13The application of the exclusionary rule to the facts of this case demonstrates why the rule has come under increasing attack1 and why courts and legislatures have recognized alternatives such as the “good faith” exception.

¶14In 1981 the Colorado legislature adopted a statute providing that evidence otherwise admissible in criminal proceedings shall not be suppressed if the evidence was seized by the police as a result of a good-faith mistake or of a technical violation. See section 16-3-308, C.R.S.1973 (1982 Supp. to 1978 Repl.Vol. 8).

¶15The good-faith rule adopted by the Colorado legislature closely follows the views of Justice White in his dissent in Stone v. Powell, supra,where he stated that the exclusionary rule should be “modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good faith belief that his conduct comported with existing law and having reasonable grounds for his belief.” See United States v. Williams, 622 F.2d 830 (5th Cir.1980), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981) (upheld seizure of evidence by officers in good faith and in the reasonable though mistaken belief that they are authorized to do so).

¶16The United States Supreme Court has to date not recognized the good faith exception. See Taylor v. Alabama, - U.S. -, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). However, in Illinois v. Gates, the court requested the parties to address the question whether the exclusionary rule should to any extent be modified, “so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.” -U.S. -, 103 S.Ct. 436, 74 L.Ed.2d -(1982).

¶17Application of the “good faith” exception has not been foreclosed by a definitive ruling of the United States Supreme Court. Accordingly, I would apply the “good faith” exception to the case at hand and thus reverse the trial court’s order suppressing the evidence which established the defendant’s guilt beyond a reasonable doubt.