People v. Bakari

780 P.2d 1089, 13 Brief Times Rptr. 1226, 1989 Colo. LEXIS 298, 1989 WL 112927

• Court: Supreme Court of Colorado
• Decided: October 2, 1989
• Docket: 89SA112
• Status: Published

Opinions

Justice VOLLACK

delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution asks that we reverse the suppression order entered by the Adams County District Court after the prosecution conceded that it was not ready to proceed at the hearing on the motion to suppress. We reverse.

I.

On October 9, 1988, Ismail Al-Rubaii was working at his gas station on East Colfax Avenue early in the morning when a man entered the store and demanded all of the station’s money. When the robber entered the store he was wearing men’s blue underwear on his face and a baseball cap on top of his head. He had a black coat draped over his arm and it appeared that he was carrying a gun. Al-Rubaii struck the robber and the two men engaged in a struggle. During the struggle Al-Rubaii was able to get his gun and fire a warning shot. The robber ran from the gas station and was later identified as the defendant, Abdu Sadiki Bakari (Bakari or the defendant). Bakari was charged by information with robbery and third-degree assault. After preliminary hearing the case was bound over for trial.

Defense counsel filed two suppression motions which are the subject of this appeal. One of defendant’s motions sought to suppress money found on the defendant when he was contacted by police, and a blue cap and blue underwear found on the gas station premises. Defendant’s other motion asked the district court to suppress statements made by the defendant.

A motions hearing was scheduled for February 10, 1989. On February 8, the February 10 hearing was vacated at the request of deputy district attorney Farrell and rescheduled for March 10, 1989. On March 10, deputy district attorney Towey, who had been recently assigned the case, appeared on behalf of the state and asked the court to continue the motions hearing.

Towey explained to the court his reasons for requesting a continuance. Due to personnel changes in the district attorney’s office, subpoenas had not been issued for the hearing. When this oversight was discovered Towey attempted to contact the detective and the three officers required for the hearing, at work and at their homes. Towey was unable to contact the officers in time for them to appear at the hearing, so he had no witnesses.

Because the scheduled trial date was six weeks away, the prosecutor asked for a short continuance of the motions hearing that would not interfere with the scheduled trial date. In the alternative, Towey advised the court that if rescheduling the motions hearing in that division would interfere with the trial date, a judge in another division had already agreed to hold the motions hearing on either March 17 or March 24.

The court rejected these suggestions and denied the motion to continue. The court held that the reason presented was “not a legitimate reason to continue” and that there was “no good cause” why the motions hearing should not be conducted. When the prosecutor conceded that he was not prepared to proceed because he did riot have any witnesses, the judge granted both of the defendant’s motions to suppress. The People appeal this ruling pursuant to C.A.R. 4.1.

II.

A.

Motion to Suppress

The prosecutor conceded that after the district court granted the motions to suppress there was “no evidence left.” We have previously acknowledged that in some cases, “given the nature of the prosecution’s evidence,” granting a motion to suppress is “tantamount to dismissing the charges against the defendant.” People v. Grady, 755 P.2d 1211, 1218 (Colo.1988). In Grady, we adopted the analytical view that because such an order amounts to dismissal, “ ‘[a] trial judge’s authority to dismiss a criminal charge on his own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited.’ ” Id. (quoting People v. Carino, 193 Colo. 412, 414, 566 P.2d 1061, 1063 (1977)).

Dismissal of charges is recognized as “ ‘a drastic remedy to be reserved for situations where no other sanction will attain the proper result.’ ” Id. (quoting People v. Holloway, 649 P.2d 318, 320 (Colo.1982)). In Grady we acknowledged that the prosecutor’s conduct, in failing to file an answer brief, “was not a model of prosecutorial assistance to the court.” Despite that, we concluded that the rules of criminal procedure did not permit the granting of the suppression motion in Grady. Id. The same analysis is appropriate here. The question then becomes whether, because this order was “tantamount to dismissing the charges,” the judge was acting within his narrow authority to do so. To make this determination we must look to the circumstances of the motion to continue.

The district court's order granting the defendant’s suppression motions did not serve the purpose of the exclusionary rule. The fourth amendment exclusionary rule “is designed to deter police misconduct.” United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); see also Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1973) (“the exclusionary rule’s ‘prime purpose is to deter future unlawful police misconduct’ ”); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974) (“ ‘The rule is calculated to prevent, not to repair. Its purpose is to deter.’ ”). In Tucker, the court held:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.

417 U.S. at 447, 94 S.Ct. at 2365. In United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1974), the court stated that

[t]he wrong condemned by the [Fourth] Amendment is fully accomplished by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered. The rule thus operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.

The district court did not reach the merits of the defendant’s arguments for suppression. The court granted the motions to suppress because the district attorney was not able to proceed at the suppression hearing. Illegal police searches and district attorney preparedness are unrelated. Because the district court’s suppression order could not have provided a deterrent against illegal police searches it was not authorized by the exclusionary rule.

The district court acted outside of its limited authority to dismiss the charges against the defendant. In prior cases we have limited the authority of trial courts to dismiss criminal charges. In People v. Carino, 193 Colo. 412, 566 P.2d 1061 (1977), we reversed a district court order dismissing misdemeanor charges against the defendant for possession of marijuana. The district court dismissed the charges because it concluded that the defendant’s probation reports did not state facts upon which the defendants could be convicted. Id., 193 Colo, at 414, 566 P.2d at 1062-63. After noting that “[a] trial judge’s authority to dismiss a criminal charge on his own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited,” we held that in dismissing the charges the district court acted outside of its authority. Id., 193 Colo, at 414, 566 P.2d at 1063. In People v. Dennis, 164 Colo. 163, 433 P.2d 339 (1967), we reversed a district court order dismissing a larceny charge against the defendant. The district court dismissed the charge because the complaining witness asked the court to drop the charges and stated his preference not to testify against the defendant. Id., 164 Colo, at 165, 433 P.2d at 340. We held that the district court acted outside its authority because “[t]he complaining witness, or the victim of the crime, has no control over the case, since he is not a party to it.” Id., 164 Colo, at 166, 433 P.2d at 340.

Here, as in Grady, 755 P.2d at 1218, the district court’s order granting the defendant’s suppression motions was “tantamount to dismissing the charges against the defendant.” The district court’s dismissal of the charges did not serve the purpose of the exclusionary rule, and this was not a situation in which no other sanction would “attain the proper result.” Id. By granting the defendant’s motions without addressing their merit the district court acted outside its authority to dismiss the charges against the defendant.

B.

Motion to Continue

“A motion for continuance is addressed to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed in the absence of an abuse of discretion.” People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). We noted in Hampton that “[tjhere are no mechanical tests for determining whether the denial óf a continuance constitutes an abuse of discretion.” Id. The answer as to whether a trial court has abused its discretion “ ‘must be found in the circumstances present in every case.’ ” Id., 758 P.2d at 1353-54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).

The ABA Standards for Criminal Justice — Speedy Trial provide that a court “[sjhould grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.” Standard 12-1.3, at 12.11. Of paramount importance is whether granting a continuance will affect the defendant’s right to a speedy trial. Id. at 12.11-12.12.

We conclude, based on the facts of this case, that the district court abused its discretion when it denied the district attorney’s request for a continuance. The district court should have considered the impact of denying the state’s request for a-continuance. Although the narrow procedural issue before the court was whether it should grant the state’s second request for a continuance, in effect the district court was ruling on a motion to dismiss. In ruling on the prosecution’s request the district court should have considered the harsh consequences of dismissal, the public interest in prompt disposition of the case, and the available alternatives. The district attorney máde arrangements for another division of the district court to hear the defendant’s suppression motions. The district court could have granted the district attorney’s request for a continuance and allowed another division of the district court to hear the motions at a later date before trial. Had the district court taken advantage of this possibility the motions would have been heard, and the case would have proceeded to trial without delay. In the face of the circumstances with which it was presented, there was no reason for the district court to insist, upon pain of dismissal, that it hear the suppression motions on March 10.

In People v. Espinoza, 195 Colo. 127, 575 P.2d 851 (1978), and People v. Hrapski, 718 P.2d 1050 (Colo.1986), we reversed trial court order? denying prosecution motions for continuances. In Espinoza the trial court had already heard oral argument on a suppression motion when, sua sponte, it questioned the validity of the affidavit supporting a search warrant. We held that the trial court abused its discretion when it failed to grant the prosecution’s continuance to give the prosecution time to retrieve the affidavit. Id., 195 Colo, at 129, 575 P.2d at 853. We noted that “[t]here had been no allegation that the district attorney’s actions were intended to delay the proceedings unnecessarily,” and that there was not “any indication that the [defendant] would have been prejudiced” by the brief delay requested by the district attorney. Id. In Hrapski, 718 P.2d at 1053, the defendant was charged with being an habitual criminal, and the trial court, acting on its own initiative, reviewed the validity of two of the guilty pleas underlying the defendant’s previous convictions. The trial court denied the prosecution’s motion for a continuance to allow the prosecution to prepare a defense against the court’s attack on the validity of the defendant’s previous pleas. Id., 718 P.2d at 1054. We held that the trial court’s failure to grant the prosecution’s request for a continuance was an abuse of discretion. Id., 718 P.2d at 1055. We noted that “[t]here is neither an indication that the People intended to delay the proceedings unnecessarily nor is there any indication that the defendant would have been prejudiced by a brief delay.” Id.

We recognize that in the present case the prosecution was solely responsible for its inability to proceed at the motions hearing. However, the fact that another division of the district court was capable of hearing the suppression motions without any resulting delay of the trial or prejudice to the defendant, and the harsh consequences of the district court’s order granting thé suppression motions, lead us to conclude that the district court abused its discretion when it denied the district attorney’s request for a continuance.

The order of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

MULLARKEY, J., specially concurs. QUINN, C.J., dissents. ERICKSON and LOHR, JJ., join in the dissent.