Petition — Colorado v. Quintero

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| Sit2-Supreme Court, US,

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82 - meet APR 20 1983

ALEXANDER te STEVAS,

CLERK

IN THE =

SUPREME COURT OF THE UNITED STATES

P _ a

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THE STATE OF COLORADO,

Petitioner,

Vs.

FIDEL QUINTERO,

Respondent.

ty

Vv

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

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dl

PETITION FOR WRIT OF CERTIORARI

Ly

Vv

NORMAN S. EARLY, JR.

District Attorney

Second Judicial District

State of Colorado

BROOKE WUNNICKE

Chief Appellate Deputy District Attorney

Attorneys for Petitioner

924 West Colfax

Denver, Colorado 80204

Telephone: (303) 575-5933

QUESTION PRESENTED FOR REVIEW

1. Whether the Colorado Supreme Court

mistakenly interpreted the Fourth Amendment's

prohibition against unreasonable search and

seizure when it applied the exclusionary rule

to an undisputed good-faith seizure of stolen

property.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

GROUNDS ON WHICH JURISDICTION

OF THIS COURT IS INVOKED

CONSTITUTIONAL PROVISION INVOLVED

IN THE SUBJECT CASE

CONCISE STATEMENT OF MATERIAL

FACTS

ARGUMENT

Certificate of Service

EXHIBIT "A"

EXHIBIT ''B"

EXHIBIT "C"

EXHIBIT "D"

EXHIBIT "E"

TABLE OF AUTHORITIES

Pages

Brinegar v. United yates,

S.Ct. 1302, 1310, 93

L.Ed. 1879, 1890 (1949) 13

Brown v. Illinois

ae , 616-12.

wo o.CE. 2254, 2265-66, 45

L.Ed.2d 416 (1975) (Powell,

J., concurring) 9

Illinois v. Gates

No. 81-430 10

Ma v. Ohio

ae? 0.5. 643, 81:8.Ct.

1684, 6 L.Ed.2d 1081 (1961) 8

People of the State of

Colorado v. aoe Guintero

65/7 FP. olo. 1983) 1

People v. Schreyer

640 P. (Colo. 1982) 7

Rakas v. Illinois

~ =e $.Ct. 421.

58 L.Ed.2d 387 (1978).

Stone v. Powell

428 U.S. 465, 538, 96

S.GG. 2007, 3073, 49

L.Ed.2d 1067 (1976) (White J.,

dissenting). 9, ye

TABLE OF AUTHORITIES-continued

Pages

Taylor v. Alabama

U.S. , 202 8.CE.

2664, 73 L.Ed.2d 314 (1982) .. 3

United States v. Payner

Sa) U.e. far, 2e0 S.Ct. 2439,

65 L.Ed.2d 468 (1980) 14

United States v. Williams

622 F.2d 830, 840

(5th Cir. 1980) li, is

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

i>

a

THE STATE OF COLORADO,

Petitioner,

vs.

FIDEL QUINTERO,

Respondent.

t>

dl

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

fy

ea

PETITION FOR WRIT OF CERTIORARI

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dl

OPINION BELOW

The opinion of the Colorado Supreme

Court is included as Exhibit "A".

GROUNDS ON WHICH JURISDICTION OF

THIS COURT IS INVOKED

Writ of Certiorari to the Supreme Court

of Colorado is here sought to review the

judgment and opinion in The People of the

State of Colorado v. Fidel Quintero, 657 P.2d

948 (Colo. 1983).

This case involved an interlocutory

appeal by the People of the State of

Colorado, (hereafter referred to as "the

People" or "the Prosecution").

Colorado Appellate Rule 4.1(g) Exhibit

"B" in the appendix to this Petition,

specifically prohibits a petition for

rehearing on interlocutory appeals in

criminal cases.

Hence, on the same day that it issued

its opinion, January 3l, 1983, the Colorado

Supreme Court also issued an order of

remittitur to the trial court.

On February 16, 1983, the People filed a

motion to vacate remittitur, Exhibit "C" to

this petition. On February 22, 1963, this

motion was denied and the judgment thereupon

became final.

The trial court has stopped proceedings

concerning this case pending filing of this

Petition for Writ of Certiorari.

2. The jurisdiction of this Court is

invoked pursuant to Rule 17(1)(c) of the

Revised Rules of the Supreme Court of the

United States, which provides that a review

on writ of certiorari may be considered “when

a state court or a federal court of appeals

has decided an important question of federal

law which has not been, but should be,

settled by this Court, or has decided a

federal question in a way in conflict with

applicable decisions of this Court." U.S.

pup. Ct. Rule 17(1)(c), 28 U.S.C.A.

The date of the Colorado Supreme Court's

opinion in the interlocutory appeal was

January 31, 1983. The date of the Order

that denied the People of the State of

Colorado's Motion to Vacate Remittitur is

February 22, 1983. Pursuant to U.S. Sup. Ct.

Rule 20(1), 28 U.S.C.A., "A petition for writ

of certiorari to review the judgment in a

criminal case of a state court of last resort

or of a federal court of appeals shall be

deemed in time when it is filed with the

Clerk within 60 days after the entry of such

judgment."

CONSTITUTIONAL PROVISION INVOLVED

IN THE SUBJECT CASE.

"The right of the people to be secure in

their persons, houses, papers, and effects

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized." U.S. Const.

Amend. IV.

CONCISE STATEMENT OF MATERIAL FACTS

On September 29, 1981, at 12:45 p.m.,

Darlene Bergan was sweeping her porch at 691

South Vine Street, Denver, Colorado. She saw

the defendant go up on the porch of a house

across the street from her and peer into the

front door and the front window for

approximately twenty seconds each. He then

left the porch, walking north and looked at

the side of the house. Mrs. Bergan thought

he was acting strangely and watched him

continue walking north until he crossed the

street and disappeared from her sight.

Mrs. Bergan saw the defendant again

about 40 minutes later standing at the bus

stop in front of her house. He had taken off

his short sleeved shirt and thrown it over a

television set. Defendant was pacing

nervously and trying to hitchhike while

waiting for the bus.

Mrs. Bergan called the police, and the

radio dispatcher reported a possible burglary

suspect at the bus stop at Vine and

Exposition, wearing a T-shirt and with a

television set covered with a shirt.

Officer Freeman, a Denver police officer

for 21 years, arrived within 5 minutes of the

call; saw the defendant waiting by the bus

stop in his undershirt; and asked him for

identification. The defendant pad no

identification and claimed that he had paid

-4- :

i : ee a ee

someone in the neighborhood $100 for the

television.

Other officers arrived within 2-3

minutes, and Mrs. Bergan made herself known

to the officers as the person who had called

the police and reported what she had seen.

After Mrs. Bergan identified herself, the

defendant was arrested and searched.

Although it was a hot day, with the

temperature in the 80 degrees, the officers

found a pair of brown wool gloves in |

defendant's back pocket. Under the shirt was

a television set and video game. The police

also found $139 in cash; 5 rings, including 2

class rings with different initials and class

years; and, some ladies jewelry when

defendant was searched at police headquarters

Later that day, David and Carol Rogers

reported their house at 791 South Vine,

Denver, Colorado, had been burglarized and a

television set and video game stolen. They

identified the television set and video game

recovered from the defendant as the items

taken in the burglary.

The defendant was charged by information

with second degree burglary. In a trial to

the court, the court considered the trial

evidence to determine both guilt and

defendant's motion to suppress evidence

seized at the time of his arrest. The trial

court found defendant guilty of second degree

burglary and denied the motion to suppress.

Thereafter, the trial court granted

defendant's motion for new trial and his

motion to suppress, because of People v.

Schreyer, 640 P.2d 1147 (Colo. 1982).

The prosecution took an interlocutory

appeal from the trial court's ruling to the

Colorado Supreme Court, specifically

requesting a review of the trial court's

suppression of the television set, video game

and gloves.

The Colorado Supreme Court affirmed the

ruling of the trial court (see Exhibit "A").

The Colorado Supreme Court found that

although the arresting officer "believed that

probable cause existed to arrest Quintero”,

the good faith exception to the exclusionary

rule could not remedy a violation of the

Fourth Amendment, because the United States

Supreme Court had not yet recognized such an

exception, citing Taylor v. Alabama, U.S.

5 102 $.Ct. 2666, 73. L.Ed.26 314 (198e3.

The Colorado Supreme Court decision was

made notwithstanding §16-3-308, C.R.S. 1973

(1982 Cum. Supp.), adopted by the Colorado

Legislature in 1981 and effective July l,

1981, which renders evidence admissible when

seized as the result of a "good faith

mistake."

ARGUMENT

This Petition for Writ of Certiorari,

therefore, is requested to resolve the issue

whether the rule requiring the exclusion at a

criminal trial of evidence obtained in

violation of the Fourth Amendment, Mapp v.

mac, 20/7 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2¢4

1081 (1961), may be modified by duly enacted

State statute so as not to require the

exclusion of evidence obtained in the

reasonable belief that the search and seizure

was consistent with the Fourth Amendment.

The following section demonstrates why

this question should be settled by this

Court.

6. The Colorado Supreme Court has

relied in its decision upon Taylor v.

Alabama, ie...) S00 S.CO. 2664, 7a

L.Ed.2d 314 (1982), where this Court declined

to recognize a "good faith" exception to the

exclusionary rule. Although Colorado has

enacted a statute which provides for such an

exception, the Colorado Supreme Court held

that it would be inappropriate "to alter

established Fourth Amendment doctrine by

approving such an exception at this time", in

light of Taylor v. Alabama, supra.

The majority of the United States

Supreme Court has not recognized a good faith

exception to date, but several Justices have

urged the adoption of a good faith exception

to the exclusionary rule. E.g., Stone v.

Powell, 428 U.S. 465, 538, 96 S.Ct. 3037,

3073, 49 L.Ed.2d 1067 (1976) (White, J.,

dissenting); Brown v. Illinois, 422 U.S.

590, 610-12, 95 S.Ct. 2254, 2265-66, 45

L.Ed.2d 416 (1975)(Powell, J., concurring).

The issue of whether the exclusionary

rule should be modified by a good faith

exception is presently before this Court in

Illinois v. Gates No. 81-430, with one major

distinction:

Illinois state law supported suppression

of the evidence, whereas the Colorado General

Assembly has enacted §16-3-308, C.R.S. 1973

(1982 Cum. Supp.), which provides in

pertinent part:

16-3-308. Evidence - admissibility -

declaration of purpose. (1) Evidence

which is otherwise admissible in a

criminal proceeding shall not be

suppressed by the trial court if the

court determines that the evidence

was seized by a peace officer, as

defined in section 18-1-901(3)(1),

C.R.S. 1973, as a result of a good

faith mistake or of a technical

violation.

(2) As used in subsection (1) of

this section:

(a) "Good faith mistake" means a

reasonable judgmental error concern-

ing the existence of facts which if

true would be sufficient to

constitute probable cause.

(4) It is hereby declared to be the

public policy of the state of Colorado

that when evidence is sought to be

excluded from the trier of fact in a

criminal proceeding because of the

conduct of a peace officer leading

to its discovery, that it will be

open to the proponent of the evidence

to urge that the conduct in question

was taken in a reasonable, good faith

belief that it was proper and in

such instances the evidence so

discovered should not be kept from

the trier of fact if otherwise

admissible. This section is necessary

to identify the characteristics of )

evidence which will be admissible in

a court of law. This section does not

address or attempt to prescribe court

procedure.

Subsection 4 of the statute makes clear’

that the public policy thus announced was to

require evidence to be submitted to the trier

of facts if the conduct of the officer oa

seizing the evidence "was taken in a

ene, good faith belief that it was

proper.’ This act was the legislative

reaction to recent federal decisions in whieh

a good faith exception to the exclusionary .

rule was established by judicial decision. ©

In United States v. Williams, 622 F.2d. .

830, 840, (Sth Cir. 1980) the Fifth Circuit

refused to exclude evidence where :

"it is discovered by officers in the

course of actions that are taken in

good faith and in the reasonable, Sa

mistaken, belief that they are

authorized."

ee a ‘

The court recognized that the exclusionary

rule exists to deter willful or flagrant

actions by police, not reasonable, good faith

ones. After an in-depth analysis of the need

for a good faith exception to the

exclusionary rule, the Williams court held

(Reporter, p. 846, 847):

Henceforth in this circuit, when

evidence is sought to be excluded

because of police conduct leading to

its discovery, it will be open to the

proponent of the evidence to urge

that the conduct in question, i

mistaken or unauthorized, was yet

taken in a reasonable, good-faith

belief that it was proper. If the

court so finds, it shall not apply

the exclusionary rule to the evidence.

The newly enacted Colorado statute adopts

this doctrine in statutory form.

The good faith of Officer Freeman in

seizing the television set and video game,

and in arresting the defendant affirmatively

appears in this case. He is a police officer

with 21 years experience on the police

department. He knew the procedures followed

by professional burglars, who usually enter

dwellings at a time when the occupants are

not home. He was asked why he did not arrest

the defendant at once upon arrival at the

scene. His answer was:

"Well, at that time I didn't feel

I had probable cause to arrest him

for anything. a

-10-

Q. And why is it that at that time

you felt you did not have probable

cause.

A. Because -well, because I didn't

know where the information was

coming from that we had received from

the District 3 station that he was

possibly a burglar. He was just a

man on the street with a T.V. set."

In Brinegar v. United States, 338 U.S.

pee, af, OF S.Ct. 1302, 1318, 93 L.kd. 1679,

1890 (1949), this Court stated:

In dealing with probable cause

as the very name implies,

we deal with probabilities. These

are not technical, they are the

factual and practical consider-

ations of every day life on which

reasonable and prudent men, not

legal technicians act.

Within the meaning of this quotation,

the citizen Mrs. Bergan was qualified as a

“reasonable and prudent" person. She had no

hesitancy in concluding that a crime had been

committed. Upon the basis of what she saw --

"the factual and practical considerations of

every day life" -- she called the police to

report a crime.

Only after Mrs. Bergan identified

herself as the person who had reported to the

police the conduct which she believed

established the commission of a crime, did

Officer Freeman arrest defendant:

When I saw that I had the person

Officer Ortiz was talking to on

the phone, then I felt I was safe

enough to go ahead and place him

under arrest.

It is undisputed that before the

television and the video game were seized

and before the defendant was taken into

custody to police headquarters, Mrs. Bergan

had made a full report to the police

concerning her observation of defendant's

actions.

It is apparent from the foregoing that

the seizure of the evidence and the arrest of

defendant tock place under a good faith

belief by the arresting officer that he was

authorized to do so.

In refusing to apply §16-3-308 to the

instant case, the Colorado Supreme Court

declared (Reporter, pp. 950-951):

A "good faith mistake" under the

statute consists of "a reasonable

judgmental error concerning the

existence of facts which if true

would be sufficient to constitute

probable cause." Section 16-3-308

(2)ta). C.B.S. 1973 (i962. Com.

Supp.). The mistake in this case

does not center upon a mispercep-

tion of an existing fact but upon

a mistaken judgment of law--that

is, the mistaken judgment by the

officer that the facts known to

him were sufficient to warrant a

full custodial arrest of the

defendant.

Here, the officer made a judgment

regarding probable cause to arrest, i.e., a

-12-_

that reasonable grounds existed to believe

that a crime had been committed and that the

defendant committed it. The officer was

convinced that he had probable cause to

arrest.

The Colorado Supreme Court did not find

that the officer had erred with regard to the

facts. Rather, the court held that the

officer made "a mistaken judgment of law" when

he believed the facts to be sufficient to

support defendant's arrest.

The People assert that the Colorado

Supreme Court's suppression of the evidence

in this case conflicts with applicable

decisions of this Court pertaining to

effectuating Fourth Amendment rights by

invoking the exclusionary rule. As the Court

declared in United States v. Calandra, 414

S.e. goo, 94 &.Ct. 613, 38 L.Ed.2d 561

(1974):

The purpose of the exclusionary

rule is not to redress the

injury to the privacy of the

search victim:

kK

Instead, the rule's prime purpose

is to deter future unlawful

police conduct and thereby

effectuate the guarantee of the

Fourth Amendment against unreason-

able searches and seizures:

kk *

In sum, the rule is a judicially

created remedy designed to safe-

guard Fourth Amendment rights

2l3-.

generally through its deterrert

effect, rather than a personal

constitutional right of the party

aggrieved.

414 U.S. at 619-620

Even the threshold requirement of

standing is not met, because the undisputed

evidence is that the items seized from

respondent were stolen; and, the

circumstances of respondent's possession

preclude his having any legitimate

expectation of privacy in the stolen

property. See Rakas v. Illinois, 839 U.S.

18. 99 S.Ct. 421, 58 L.Ed.2d 367 (19798),

Moreover, the facts of this case as

stated in the opinion, Exhibit A, are

themselves convincing testament against

imposing the harsh sanction of suppression.

The Calandra court, supra, stated that the

exclusionary rule "has been restricted to

those areas where its remedial objectives are

most efficaciously served." 414 U.S. 338,

548. 94 S.Ct. 613, 620, 36 L.E6.26 304.. =

the case at bar, the prompt response of

police to the concerned citizen's call, the

brief questions to respondent which elicited

suspicious answers, and the nonviolent arrest

of respondent with the goods that he had just

stolen do not equate with police conduct that

should be deterred. The Colorado Supreme

Court's application of the exclusionary rule

to suppress the stolen goods, under the

ibe

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Ps SS

ee

circumstances here, conflicts with decisions

of this Court, E.g. United States v. Payner,

oer U.S... 727, 100 S.Ct. 2439, 65 L.Ed. 2d 468

(1980), where the Court declared:

Our cases have consistently

recognized that unbending

application of the exclusionary

sanction to enforce ideals of

governmental rectitude would

impede unacceptably the truth-

finding functions of judge and jury.

ea? U.S. 734, 100 S.Ct. Z2és5.

Further, the People assert that the

Colorado statute's provision for a good faith

exception to the exclusionary rule is

consistent with, and indeed reflects, this

Court's expressed views concerning that rule.

Finally, the People respectfully submit

that the state court's suppression of the

evidence in this case is not only legally

incorrect, but is a mechanistic application

of the exclusionary rule which undermines the

waning public confidence in the criminal

justice system. The public response to the

State court's Quintero opinion was

substantial, both citizen calls and news

media reports. A column in the Sunday

edition of The Denver Post has been selected

to include here as Appendix E to this

petition. The column is a colloquial yet

eloquent statement of the commonsense view of

the exclusionary rule--a view that counsel

EE ___EEEEEOOOOIeOo7oeVOO

advocates the law can constitutionally share

with the public.

In sum, the purpose of the exclusionary

rule is to deter willful or flagrant actions

by police, not reasonable good-faith police

conduct. ‘Where the reason for the rule

ceases, its application must cease also." a,

United States v. Williams, supra. , |

Petitioner, the People of the State of

Colorado, ask this Court to grant certiorari

in the case at bar to resolve whether the

Fourth Amendment permits the exclusionary

rule to be modified when applied to an

undisputed good faith seizure of stolen

property.

Respectfully submitted,

NORMAN S. EARLY, JR.

District Attorney

Second Judicial District

State of Colorado

Cy nee oe eS

/s/ Brooke Wunnicke

BROOKE WUNNICKE

Chief Appellate Deputy District Attorney

(Admitted to this Court on

April 29, 1958)

mY

CERTIFICATE OF SERVICE

I do hereby certify that on the 19th day

of April, 1983, I placed in the United States

mail, postage prepaid and properly sealed and

addressed, a copy of the foregoing Petition

for Writ of Certiorari to:

DAVID VELA

Colorado State Public Defender

THOMAS M. VAN CLEAVE, III

Deputy State Public Defender

1575 Sherman Street

Denver, Colorado 80203

Brooke Wunnicke

ee

EXHIBIT "A"

IN THE SUPREME COURT OF COLORADO

NO. 82SA174

THE PEOPLE OF THE STATE

‘OF COLORADO,

Plaintiff-Appellant,

)

)

)

)

Vv. )

)

FIDEL QUINTERO, )

Defendant-Appellee. )

INTERLOCUTORY APPEAL FROM THE DISTRICT

COURT, CITY AND COUNTY OF DENVER,

HONORABLE RAYMOND D. JONES, JUDGE

EN BANC RULING AFFIRMED

Dale Tooley, District Attorney

0. Otto Moore, Assistant District Attorney

Brooke Wunnicke, Chief Appellate Deputy

District Attorney

Attorneys for Plaintiff-Appellant

David Vela, Colorado State Public Defender

Thomas M. Van Cleave, III, Deputy State

Public Defender

Attorneys for Defendant-Appellee

JUSTICE ERICKSON delivered the Opinion of

the Court

JUSTICE ROVIRA dissented and filed opinion

This is an interlocutory appeal by the

prosecution from an order suppressing

evidence seized incident to the arrest of

defendant, Fidel Quintero, and from the order

setting aside his conviction of second dereree

burglary, section 18-4-203, C.R.S. 1973 (1978

Repl. Vol. 8 and 1982 Cum.Supp.), and

ordering that the defendant be granted a new

trial.

The defendant waived a jury tria. and

was tried to the court. The court elected to

consider the evidence offered at the trial

for both the purpose of determining guilt and

to resolve the issues relating to the

defendant's motion to suppress the evidence

that was seized at the time of his arrest.

After the court heard the evidence, the court

found the defendant guilty of second degree

burglary and denied the motion to suppress.

Thereafter, when the motion for a new trial

was filed, the court granted the motion to

suppress and ordered a new trial because of

our opinion in Pzople v. Schreyer, 640 P.2d

1147 (Colo. 1982). We affirm.

z.

On September 29, 1981, at 12:45 p.m.,

Darlene Bergan was sweeping the porch of her

home at 691 South Vine Street in Denver. It

was a hot day and the temperature was in the

80 degree range or above that. Darlene

Bergan's house is located adjacent to the bus

stop at the corner of Exposition and Vine.

She saw a man walking on the opposite side of

the street and watched him go up on the porch

of the house and stand at the front door for

approximately twenty seconds, and then saw

him stand at the front window so that he

could peer into the front of the house for

approximately the same amount of time. He

then left the porch and proceeded north and

appeared to be looking at the windows on the

side of the house. He then walked in a

northerly direction on Vine Street, stopped

at another house, and then could not be

seen by Mrs. Bergan. He was wearing a short

sleeve shirt and appeared to be watching Mrs.

Bergan. She next saw him at 1:45 p.m. while

he was standing at a bus stop next to her

house. He had taken off his shirt and had

used the shirt to cover a television set. He

paced nervously and was trying to thumb a

ride or hitchhike while waiting for the bus

to arrive. Mrs. Bergan thought he looked

quite "antsey" and called the police. The

police radio dispatcher reported that a

possible burglary suspect was at the corner

of Exposition and Vine.

Officer Freeman, a twenty-one year

police veteran, was the first to respond and

arrived approximately five minutes after the

call was made. He asked Quintero for

identification and Quintero had none. Other

officers who arrived at the scene assisted in

the investigation. Quintero claimed that he

had bought the television set from someone in

the neighborhood for $100 and was trying to

go home with it. He was in an undershirt and

had brown wool gloves in his back pocket

which were found in a "pat down" search for

weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). While he was

being questioned, Mrs. Bergan made herself

known to the officers as the woman who had

called the poiice and reported what she had

seen. However, she did not tell the police

officers what she had seen before the arrest

was made. After Mrs. Bergan identified

herself, Cuintero was arrested and searched.

Under the shirt the police found the

television set and a video game. The police

also found $140 in cash, f -e rings

(including two class rings bearing different

er : -_ —_ : . <s

initials and class years), and some ladies

jewelry in Quintero's pants pockets when he

was searched at the police station.

After the arrest was made, the officers

checked the neighborhood and were unable to

determine that a burglary had occurred.

Later that day, however, the owners of a

house one block south of Mrs. Bergan's

reported that their house had been

burglarized and that a television set and a

video game had been stolen. The television

set and video game that were in the

possession of Quintero when he was arrested

were identified as the items taken in the

burglery. It was approximately five hours

after Quintero was arrested that the police

learned that the items taken were obtained in

the burglary.

rt.

Probable cause to arrest exists when the

facts and circumstances within an officer's

knowledge are sufficient to support a

reasonable belief that a crime has been

committed by the person arrested. People v.

Vieil, 198 Colo. 185, 597 P.2d 367 (297023

People v. Gonzales, 186 Colo. 48, 525 P.2d

1139 (1974); People v. Lucero, 174 Colo. 278,

483 P.2d 968 (1971). Evidence in plain view

can be relied upon to establish probable

cause. People v. McGahey, 179 Colo. 401, 500

P.2d 977 (1972). The totality of the facts

considered as a whole can constitute probable

cause even though no one fact, viewed alone,

constitutes probable cause. People v.

Eichelberger, 620 P.2d 1067 (Colo. 1980).

The arresting officer in this case a

believed that probable cause existed to ro

arrest Quintero. At the time the arrest was

made, the police knew that Quintero was a

stranger to the neighborhood, and that he

claimed that he had purchased a television

set from someone in the neighborhood. They

also knew that he had attempted to cover the

television set and the video game with his

shirt. He had no identification, but no

evidence existed to establish that a crime

had been committed. Brown v. Texas, 443

=e. 8), 99 &.Ct.. 2637, 61 L.bd.2¢6 357

(1979). The police did not learn who the

owners of the television set and the video

game were until more than five hours after

they arrested Quintero. Suspicion does not

amount to probable cause and an analysis of

the facts requires us to reach the same

conclusion which we reached in People v.

Schreyer, 640 P.2d 1147 (Colo. 1982).

Moreover, the house where Mrs. Bergan

observed Quintero was not the house which was

burglarized.

© ee

The lack of probable cause to arrest

cannot be remedied by resort to the good

faith exception or the inevitable discovery

rule. The dissenting views of Justice White

in Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037, 49 L.Ed.2d 1067 (1976), would craft a

good faith exception for the exclusionary

rule whenever a police officer reasonably and

in good faith believes his conduct comports

with existing law. The majority of the

United States Supreme Court to date, however,

has refused to recognize this good faith

exception. See Taylor v. Alabama, U.S.

_.., 102 S.Cc. 2664, 73 L.Ed. 20 314: (2968);

Given such refusal, it would be inappropriate

for this court to alter established Fourth

Amendment doctrine by approving such an

exception at this time.

We recognize that the General Assembly

enacted a statute in 1981 which renders

evidence admissible when seized as a result

of the "good faith mistake." Section

16-3-308, C.R.S. 1973 (1982 Cum. Supp.). The

Statutory definition of "the good faith

mistake" is narrower than a good faith

exception espoused by Justice White. A "good

faith mistake" under the statute consists of

"a reasonable judgmental error concerning the

existence of facts which if true would be

sufficient to constitute probable cause."

Section 16-3-308(2)(a), C.R.S. 1973 (1982 Cum.

Supp.). The mistake in this case does not

center upon a misperception of an existing

fact but upon a mistaken judgment of law --

that is, the mistaken judgment by the officer

that the facts known to him were sufficient

to warrant a full custodial arrest of the

defendant. Thus, section 16-3-308 has no

application in this case.

There is no basis in the record for

application of the inevitable discovery rule

to support the defendant's arrest. The

prosecution did not rely upon that rule in

imposing the initial suppression motion, nor

did it raise the rule in its brief as a basis

for reversing the trial court's suppression

order. This failure is no doubt attributable

to the total lack of concrete evidence in the

record to support the application of the rule

to the facts of the case. Indeed, the only

reasonable inference from the evidence is

that the arresting officer recorded the

serial number on the television set after the

defendant had been arrested and taken to the

station house. In contrast to the fact

situation in Brewer v. Williams, 430 U.S.

307, 97 S$.Ce.. 1232, 51 L.Ed. 26 624 42377),

where an ongoing search for a homicide

victim's body had already been in progress

and was continuing simultaneously with and

independently of the defendant's illegal

interrogation, there is no evidence of

independent investigatory measures here. The

record lacks even a hint of an independent

route by which the serial number of the

television could have been constitutionally

obtained. To remand the case for a hearing

under these circumstances would transform the

inevitable discovery rule into a vehicle for

upholding police conduct based upon an

officer's hindsight appraisal of what

constitutionally proper course of conduct he

"could" have followed. The focus of the

inevitable discovery rule should not be upon

what the arresting officer "might" or "could"

have done had he not erroneously concluded

that probable cause to arrest existed.

Rather, the central focus should be on what

investigatory measures necessarily or

inevitably would have been taken regardless

of the officer's decision to arrest.

Accordingly, we affirm the ruling of the

trial court suppressing the evidence and

ordering that a new trial be granted.

JUSTICE ROVIRA, dissenting:

I respectfully dissent.

The 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?

In People v. Weinert, 174 Colo. 71, 74,

482 P.2d 103, 104-05 (1971), we said:

"'’Pjrobable 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

>. 27a 693, cert. den. 3935 U.S.

$93 £69 8.CE. Zi7, Zi LB. 26 273)5.-.”

It 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 dissenting 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

-28-

against him has accumulated. The

officer may be shirking his duty

if he does so."

There 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.

Conceding for the sake of argument

2 Bite

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.

In Brewer v. Williams, 430 U.S. 38/7,

406-07 nn. 42, 97 S.' Ct. 1232, 5242 8. 4k, 5,

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."

When 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 (lowa

1979), cert. denied, 446 U.S. 921 100 S.Ct.

1839. G4 L.Ed.2¢ Z77 (1980).

meee

In 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.

The 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 (lst

Cir. 1980).

eile

Here 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 the

serial number would have been discovered

without the illegal arrest and, if so, bow 1t

would have been found.

The application of the exclusionary rule

to the facts of this case demonstrates why

the rule has come under increasing attack and

why courts and legislatures have recognized

alternatives such as the "good faith"

exception.

In 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 palice 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).

The 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.

genieg, 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).

The United States Supreme Court has to

date not recognized the good faith exception.

see Taylor v. Alabama, Bios 5 €Ge

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

eer. — 2G, ., 10) S.ce. a8.

74 L.Ed.2d (1982).

Application of the "good faith"

exception has not been foreclosed by a

«33%

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.

EXHIBIT ''B"

COLORADO APPELLATE RULES 4.1

INTERLOCUTORY APPEALS

IN CRIMINAL CASES

ee 2 & 2

(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 accompany said

opinion.

| oe

EXHIBIT "C”

SUPREME COURT, STATE OF COLORADO

NO. 82 SA174

MOTION TO VACATE REMITTITUR

THE PEOPLE OF THE STATE OF COLORADO

Plaintiff-Appellant,

Vs.

FIDEL QUINTERO,

Defendant-Appellee.

The People of the State of Colorado, by

and through Norman S. Early, Jr., District

Attorney within and for the Second Judicial

District, and by his duly appointed Deputy,

Brooke Wunnicke, and moves to vacate the

remittitur ordered in this case on January 3l

and received February 2, 1983.

As grounds for this motion, the People

allege that:

1. C.A.R. 4.1(g) prohibits a petition

for rehearing on interlocutory appeals in

criminal cases.

2. The opinion of the Supreme Court of

Colorado, issued January 31, 1983, is,

therefore, a final judgment.

3. The People of the State of Colorado

intend to seek review of that final judgment

=<"

by filing a Petition for Writ of Certiorari

in the Supreme Court of the United States.

4. This matter should not, therefore,

be remitted to the trial court until

completion of review by the Supreme Court of

the United States.

WHEREFORE, the People ask this court to

vacate its order of remittitur in this

matter, issued January 31 and received

February 2, 1983.

Respectfully submitted February 16,

1983.

NORMAN S. EARLY, JR.

District Attorney

Second Judicial District

State of Colorado

BY:

BRCOKE WUNNICKE, Reg. No. 4854

Chief Appellate Deputy

District Attorney

924 West Colfax Avenue

Denver, Colorado 80204

Telephone: 575-5933

CERTIFICATE OF MAILING

I do hereby certify that on February 16,

1983, I deposited a true and complete copy of

the foregoing Motion to Vacate Remittitur,

properly addressed in the U.S. mail to:

THOMAS M. VAN CLEAVE, III, Esq.

1575 Sherman Street

Denver, CO 80203

BROOKE WUNNICKE

ee ae Se

EXHIBIT "D"

SUPREME COURT, STATE OF COLORADO

Case No. 82 SA 174

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT,

CITY AND COUNTY OF DENVER

ORDER OF COURT

coe — —— ee tee ee — ——- ss ee os ae a —— cones — oe — — a ae — me

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellant,

vs.

FIDEL QUINTERO,

Defendant-Appellee.

Upon consideration of the Motion to

Vacate 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, EN BANC, FEBRUARY 22, 1983

CC: Brooke Wunnicke

Chief Appellate Deputy

District Attorney

West Side Court Building

Thomas M. Van Cleave, III

Deputy State Public Defender

EXHIBIT “E"

DENVER POST

February 6,

Article by

Burglars Find

Friend Indeed

Let me first establish my credentials

My credentials are that I have a tendency to

see things from the underside, having been

peering up from there for sometime now. As

often as not I side with the black sheep in the

flock, the debtor in hock, the prisoner in the

dock.

But Jehoshaphat!, what is going on?

Causing this hoo-haw is the Colorado Su-

preme Court.

The Colorado Supreme Court is acting oddly

The Colorado Supreme Court has walked off

and left its good sense somewhere.

You know me, I try not to cniticize judges,

not being a candidate for public office. Besides,

we who never know when we might be up on

charges tend to placate, not upset judges. Judg-

es aren't permitted to read or use a Sony Walk-

man during a long trial so the choice becomes

listening to the evidence or brooding over old

slights, and, well, I just don’t want to risk it.

But the Colorado Supreme Court seems to

have ruled that it isn’t cricket to arrest bur-

glars who have not quite gotien out of the

neighborhood with the boodle.

And I — The Understanding One, Mr. Per-

missive, America’s Pushover — am in danger

of sputtering myself into sick bay.

What happened:

On Sept. 29, 1981, a South Denver woman

looked out and saw a stranger peering into a

neighbor's windows. She watched as he went to

another house, then disappeared from view.

When she next saw him he was standing at a

nearby bus stop. He’d removed his shirt and

draped it over a video game and a television set

he was carrying. He seemed nervous. The resi-

dent called police.

O t

|

Mm

+

_

RTD service being what it is, the man was

still at the bus stop when officers arrived.

The witness came out, identified herself and

related what she'd seen. The man insisted he'd

purchased the items in the neighborhood, but he

was arrested. A jail search produced $140 in

cash and jewelry.

Five hours later a burglary report was made.

Items reported stolen matched those in the sus-

pect's possession.

Yes, perfect.

Open and shut.

A family’s home is burgled while they're

away and before they even know it's happened

the criminal is behind bars and the loot re-

trieved.

The very essence of Neighborhood Watch

programs.

We all go away feeling fine and even RTD’s

happy-go-lucky scheduling comes in for a round

of applause, mght?

You know there are times I wonder about

you. You really should begin paying more atten-

tion. Happy endings are few in the real world.

Officers, our very own Supreme Court decid-

ed, did not have sufficient reason to arrest the

burglary suspect, not then knowing conclusive-

ly that a burglary had actually occurred. Suspi-

cion, our very own Supreme Court ruled, is not

sufficient reason for arrest.

Don’t look at me.

One Supreme Court justice disagreed. Only

one. His name is Rovira, Luis Rovira.

Residential burglaries are a fact of life, Jus-

tice Rovira said, and the circumstances of the

incident were highly suggestive of a recent bur-

giary and sufficient to support a reasonable be-

lief that a crime had been committed by the

person arrested.

Yes. Indeed.

Quote

“If the police had done anything else, they'd

be sharply criticized for dereliction of duty.

This is a Catch-22 if I've ever seen one." —

Dale Toole.

Ara