People v. Barros

835 P.2d 587, 16 Brief Times Rptr. 572, 1992 Colo. App. LEXIS 119, 1992 WL 71120
CourtColorado Court of Appeals
DecidedApril 9, 1992
DocketNo. 90CA1369
StatusPublished
Cited by4 cases

This text of 835 P.2d 587 (People v. Barros) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Barros, 835 P.2d 587, 16 Brief Times Rptr. 572, 1992 Colo. App. LEXIS 119, 1992 WL 71120 (Colo. Ct. App. 1992).

Opinions

Opinion by

Judge ROTHENBERG.

Defendant, Phillip J. Barros, appeals the judgment of conviction entered by the trial court finding him guilty of second degree burglary and theft. We affirm.

The following facts are undisputed. On April 1, 1990, police officer Eggleston was assigned to a Denver residential neighborhood that had experienced a series of burglaries. Officer Eggleston was patrolling the neighborhood in a marked “burglary suppression” car, and was routinely questioning individuals whom she observed in the alleys.

During her morning patrol, one citizen told the officer that there was a man in the adjacent alley who was carrying a sack but “didn’t look like he was picking cans.” Officer Eggleston drove to the adjacent alley to investigate, and, as she turned into the alley at a normal speed, she spotted a man, later identified as defendant Barros, standing halfway down the alley. He was carrying a large brown trash bag which appeared to be heavy. The officer testified that, in her experience, persons often use trash bags to carry stolen items. As soon as the man saw the police car, he immediately dropped the bag and fled in the opposite direction.

After the man ran, Officer Eggleston broadcast a report that a possible burglary or theft suspect was running westbound, and she described the suspect. She then exited her police vehicle and lifted the abandoned garbage bag into her car. In doing so she observed a VCR or stereo protruding from its bottom, and testified that its remaining contents appeared to be household goods. She further testified that this cursory view of the contents led her to believe that the items had been stolen from a home.

Officer Gallo, who was nearby in another police car, responded to the radio broadcast, and stopped one suspect (not Barros) in another alley. As Officer Eggleston was approaching that alley, Officer Gallo [589]*589radioed her that another man matching the suspect’s description was running westbound across the alley, and he quickly apprehended and arrested that second man, who was Barros.

When Officer Eggleston arrived at the arrest scene, she confirmed that Barros was the person she had seen carrying the garbage bag full of household items.

Approximately thirty minutes after Bar-ros’ arrest, the police identified a residence which appeared to have been burglarized but there was a considerable delay in obtaining confirmation from the homeowner that a burglary had been committed. In the interim, Barros was interrogated at police headquarters and voluntarily confessed to the burglary.

Before trial, Barros moved to suppress his confession, claiming that it was the fruit of an illegal arrest. After an eviden-tiary hearing, the trial court denied his motion, finding that the police officer, “using common sense, intelligently, reasonably concluded that a burglary had been committed and that Mr. Barros committed it.”

I.

Barros contends that the trial court erred in denying his motion to suppress. We disagree.

Initially, we note that the trial court made certain findings which lack record support. Specifically, the trial court found that Officer Eggleston saw the suspect standing in the backyard of a residence holding the garbage bag and that she described the suspect as an Hispanic male in her broadcast. Further, the trial court found that the officer retrieved and viewed the contents of the garbage bag before airing her broadcast. We agree with defendant that the record does not support these three findings, and accordingly, we do not rely on them in reaching our decision. See People v. Johnson, 653 P.2d 737 (Colo.1982).

In addition, we note that the prosecution’s evidence clearly established that Bar-ros was arrested by Officer Gallo immediately upon his apprehension. Therefore, we do not consider the law regarding investigative stops.

In order to justify a warrantless arrest, the prosecution must prove that probable cause existed at the moment of arrest. People v. Thompson, 793 P.2d 1173 (Colo.1990). Probable cause to arrest exists if, when viewing the totality of the circumstances, an arresting officer possesses facts and information within his or her knowledge which would warrant a reasonable and prudent person to believe, in light of that person’s training and experience, that the person arrested has committed or is committing a crime. People v. Foster, 788 P.2d 825 (Colo.1990). The information necessary to support a finding of probable cause need not rise to the level of certainty, People v. Drake, 785 P.2d 1257 (Colo.1990), but it must be based upon more than suspicion alone. People v. Quintero, 657 P.2d 948 (Colo.1983).

Probable cause is determined based upon the information which the arresting officer possesses at the time of the arrest, either through personal observation or information relayed to him by fellow officers. People v. Thompson, supra.

In People v. Hazelhurst, 662 P.2d 1081 (Colo.1983), our supreme court restated the fellow officer rule:

We have held in warrantless arrest situations that an arresting officer who does not personally know facts that provide probable cause may still effect a war-rantless arrest if he acts upon the direction or as a result of a communication from a fellow officer and the police, as a whole, know facts which rise to the level of probable cause....
It is not necessary for the arresting officer ... to be himself in possession of information sufficient to constitute probable cause, provided he acts upon the direction or as a result of communication with [another] officer ... and provided the police as a whole are in possession of information sufficient to constitute probable cause to make the arrest. (emphasis added)

[590]*590Importantly, the request by one officer that another officer arrest a suspect can be conclusionary. There are no “magic words” which must pass from officer to officer. People v. Hazelhurst, supra. See also 1 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.5 (1978).

Applying these principles to the facts of this case, we conclude that, at the moment of Barros’ arrest, the arresting officer had the requisite probable cause based upon the information possessed by the police “as a whole.” These facts include: (1) defendant’s presence in the high crime area victimized by recent burglaries; (2) the information of suspicious activity by a citizen; (3) the first officer’s experiential knowledge that garbage bags are often used to carry stolen items; (4) defendant’s actions in dropping the garbage bag and fleeing immediately upon seeing the police car; and (5) the first officer’s observations of the bag and its contents.

Barros stresses the fact that Officer Eg-gleston did not know what was in the trash bag when she radioed for assistance. Hence, he argues that the police lacked probable cause to believe that a crime had been committed.

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835 P.2d 587, 16 Brief Times Rptr. 572, 1992 Colo. App. LEXIS 119, 1992 WL 71120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barros-coloctapp-1992.