# People v. Probasco

> Supreme Court of Colorado · September 10, 1990 · 14 Brief Times Rptr. 1186

URL: https://www.frixlaw.com/law-library/cases/9790420

## Case

- **Full name:** The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Daniel Jay PROBASCO, Defendant-Appellee
- **Court:** Supreme Court of Colorado
- **Decided:** September 10, 1990
- **Citations:** 14 Brief Times Rptr. 1186; 795 P.2d 1330; 1990 Colo. LEXIS 552; 1990 WL 129118
- **Precedential status:** Published
- **Opinion:** Dissent by Quinn
- **Judges:** Erickson, Quinn, Lohr
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790420

## Opinion text

Justice QUINN
dissenting:
The issue in this interlocutory appeal is whether the defendant’s statements to a fellow officer at the scene of a shooting were the product of custodial interrogation. The majority acknowledges that the eviden-tiary state of the record supports the trial court’s finding that the defendant was subjected to interrogation, but then rejects the court’s determination that the interrogation was custodial. In my view, the record contains adequate evidence to support the trial court’s findings of fact and further demonstrates that the court applied the correct legal standard in resolving the suppression motion. I accordingly dissent.
I.
In ruling on a motion to suppress a custodial statement, a trial court “must engage both in factfinding — a specific inquiry into the historical phenomena of the case— and law application, which involves the application of the controlling legal standard to the facts established by the evidence.” People v. Quezada, 731 P.2d 730, 732 (Colo. 1987). The correct legal standard in resolving the issue of custodial interrogation is whether “a reasonable person in the suspect’s position would consider himself deprived of his freedom of action in a significant way during a police interrogation in which the suspect was exposed to the risk of self-incrimination.” People v. Trujillo, 784 P.2d 788, 791 (Colo.1990); see People v. Cleburn, 782 P.2d 784, 786 (Colo.1989); People v. Thiret, 685 P.2d 193, 203 (Colo.1984). In resolving that question the court must consider the totality of circumstances surrounding the interrogation. Trujillo, 784 P.2d at 791 ; Thiret, 685 P.2d at 203 .
Our role as reviewing court in passing on a suppression ruling is limited to reviewing the record in order to determine “whether the trial court’s findings of historical fact are adequately supported by competent evidence and whether the court applied the correct legal standard to these findings in resolving the issue before it.” Trujillo, 784 P.2d at 792 . It is not our function to second-guess the trial court’s assessment of the credibility of witnesses or the inferences reasonably drawn by the court in weighing the testimony presented at the suppression hearing.
II.
The record in this case contains competent evidence to support the trial court’s determination that the defendant was subjected to custodial interrogation at the scene of the shooting. Sergeant Ringo, who was the highest ranking officer at the scene of the shooting and was in charge of the investigation, testified that he instructed Officer Goebel to go with the defendant to the patrol car and stay with the defendant in the car. In response to the question whether the defendant was free to leave the scene at that time, Sergeant Ringo stated that he was not free to leave because, in Sergeant Ringo’s view, he “could possibly be a suspect at that time.” After Officers Goebel and Wood accompanied the defendant to the patrol car and were waiting there with him, Officer Smith arrived at the scene and, without having advised the defendant of his Miranda rights, questioned him about the circumstances surrounding the shooting. The defendant, who was described by Sergeant Ringo as being “overwhelmed with what was going on,” responded in detail to Officer Smith’s inquiry while he was seated in the police vehicle in the presence of the three officers.
The trial court’s ruling, as evidenced by the following excerpt, refutes any notion that the court did not adequately consider the totality of circumstances in resolving the issue of custodial interrogation or that the court did not apply the correct legal *1337 standard in ruling on the suppression motion.
The totality of the circumstances are, it seems to me, that the defendant was first contacted over the body of the victim under circumstances implicating him in the death of the victim. The officers involved had received information through the dispatcher that there had been a problem on a contact, and certainly the officers responding to the location of the defendant and the victim fully understood that it was something more than a mere traffic problem, that in fact a shot had been fired and heard and the victim and the defendant were together.... It’s apparent to the Court that the defendant was in a state of some shock but was sufficiently aware of the difficulty of the situation that he stated he didn’t want to visit with anybody. That at least suggests that he had some consciousness perhaps of the custodial type arrangement and that he was not free to leave.
* * ⅜! * ⅜ *
The officer in charge instructed two officers to accompany the defendant back to his car and to stay with him there. I think the words were “until further orders.” It’s apparent from the Sergeant’s testimony that subjectively, in ... law enforcement’s mind[,] the defendant was not free to go anywhere. He was free to go back to his car with the accompaniment of law enforcement officers. He was there with two officers. And it’s apparent the third officer arrived on the scene as well when this question was given that elicited this long narrative of the occurrence.
[The defendant] was never told that he was not under arrest. He was never told that he was free to leave. There clearly was a lack of Miranda advisement. But nothing was conveyed to him in any way that would suggest that his freedom was not restricted in a fairly significant way, namély, he was one officer and he was basically surrounded by two officers and finally a third and then others moved in and out of the area.
It’s really difficult for the Court to look at the totality of that situation and to think anything other than a reasonable person in that position would consider himself deprived of his freedom of action in a significant way. I’m not phrasing that too well, but the Court will find that a custodial situation did exist under the totality standard and under the objective standard. And in light of that, it’s apparent under the Miranda decision and cases similar to Miranda there should have been no interrogation without first giving the Miranda warning and without securing a voluntary waiver of those Miranda rights, and that having failed to give that warning the statements made by the defendant must be suppressed.
It was a prerogative of the trial court in this case, in exercising its factfinding function, to evaluate the evidence and to determine the appropriate weight to be given those aspects of the evidence bearing on the issue of custodial interrogation. Because the district court’s findings are supported by competent evidence in the record, and because the court applied the correct legal standard in resolving the suppression motion, the suppression ruling in this case should be affirmed.
III.
The majority, in reaching a contrary result, places much weight on the fact that the defendant was an on-duty police officer at the time of the interrogation and concludes that “the reasonable police officer, while on duty, sitting in his police car with fellow officers that were also his friends, would not be likely to believe that his freedom of action was limited in a significant way.” Maj. op. at 1335. The trial court, however, adequately considered the defendant’s status as an on-duty police officer and determined that a reasonable person in the defendant’s position “would consider himself deprived of his freedom of action in a significant way.” Contrary to the majority, I do not view the trial court’s ultimate conclusion as inconsistent with or unsupported by its evidentiary findings of fact.
*1338 The Supreme Court made it abundantly-clear in Miranda that the privilege against self incrimination is so fundamental to our constitutional scheme and the expedient of giving a warning as to the availability of the privilege so simple that it is not appropriate “to inquire in individual cases whether the defendant was aware of his rights without a warning being given.” Miranda, 384 U.S. at 468, 86 S.Ct. at 1625. “[W]hatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.” Id. at 469, 86 S.Ct. at 1625. The fact that the defendant was a police officer, therefore, did not eliminate the need for a proper Miranda warning before questioning so long as a reasonable person in the defendant’s position would have considered himself significantly deprived of his freedom of action during a police interrogation at the scene of a possibly serious crime in which the defendant obviously was implicated. The trial court’s ruling in this case is totally consistent with the principle that in highly stressful situations, such as a custodial interrogation, a suspect’s abstract knowledge of his rights well might be less important than his ability to cope with the pressures of the situation. W. White, Defending Miranda: A Reply to Professor Kaplan, 39 Yand.L. Rev. 1, 6 (1986). The Miranda warnings are calculated to enhance the ability of the suspect, whether a police officer or anyone else, to deal with those pressures by making him aware “not only of the privilege, but also of the consequences of foregoing it.” Miranda, 384 U.S. at 469, 86 S.Ct. at 1625.
I would affirm the trial court’s suppression ruling because that ruling is supported by competent evidence and is based on the application of the correct legal standard to the factual findings made by the court.
I am authorized to say that Justice LOHR joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790420. Public record. Not legal advice.