People v. Elagnaf

829 P.2d 484, 15 Brief Times Rptr. 1561, 1991 Colo. App. LEXIS 336, 1991 WL 264806
CourtColorado Court of Appeals
DecidedNovember 7, 1991
DocketNo. 89CA2117
StatusPublished
Cited by579 cases

This text of 829 P.2d 484 (People v. Elagnaf) 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. Elagnaf, 829 P.2d 484, 15 Brief Times Rptr. 1561, 1991 Colo. App. LEXIS 336, 1991 WL 264806 (Colo. Ct. App. 1991).

Opinion

Opinion by

Judge PIERCE.

Defendant, Jamal Salem Elagnaf, appeals a judgment of conviction entered on a jury verdict finding him guilty of possession of cocaine. We affirm.

In June of 1988, defendant was arrested for an immigration violation and was awaiting deportation. At that time, the Grand Junction Police Department was conducting an ongoing investigation of an individual named Joseph Starr who was suspected of running a narcotics distribution organization. An officer involved in this investigation offered to help defendant remain in this country in exchange for information on Starr’s drug trafficking activities. Defendant agreed to this arrangement and provided the officer with information about Starr on June 29, 1988, and on two other occasions.

Based on information from several informants, including the defendant, the police learned that persons interested in purchasing cocaine would contact Starr through a pager, identify themselves by code number, leave a return phone number, and await a return phone call to arrange for the transaction. This information was used to obtain a court order authorizing a wire tap of Starr’s pager.

On May 14,1989, when defendant was no longer acting as an informant, the police intercepted a call to Starr’s pager. An officer was dispatched to the location from which the call had been made, but before reaching there he saw Starr’s van, followed closely by a blue car, driving away from the area. The officer followed the van and the car until they stopped and saw defendant leave the passenger compartment of the van and enter the car. The officer continued to follow the car and was subsequently instructed by another officer to stop the car and search the defendant for cocaine.

After the car was stopped and defendant was briefly questioned, he attempted to flee. He was apprehended, and officers found a bag of cocaine in his pants.

Defendant was then taken to the police administration building for questioning. The officer who conducted the interview testified that he did not verbally inform the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but rather gave defendant a written advisement form and obtained assurances from defendant that he understood the information on the form.

Because of what the officer described as a combative attitude, defendant remained handcuffed during this interview. Hence, he was unable to sign the advisement form acknowledging his understanding of the rights described. The following day defendant was again interviewed. He again was given a written advisement form before the interview and signed that form in front of two officers. During both interviews, defendant admitted purchasing cocaine from Starr.

The defendant was released from jail later that day and again agreed to work as [487]*487an informant for the police. He attempted to learn more about Starr’s drug operation and on May 29, 1989, telephoned a police officer to describe a deal he was trying to arrange with Starr involving the trade of a vehicle for cocaine. During that phone conversation, the defendant made statements further incriminating himself.

I.

Defendant first contends that the statements he made to the police on June 29, 1988, with respect to his previous cocaine purchases from Starr were made while he was in custody. He argues, therefore, that because the interview was not preceded by a Miranda advisement, the trial court erred in refusing to order the suppression of the statements at his trial. We disagree.

An accused must be advised of the privilege against self-incrimination and the right to counsel as a prerequisite to the prosecution’s use of any statement made by him as a result of custodial interrogation. Miranda v. Arizona, supra. However, not all police questioning falls within the protection of Miranda.

The record shows that the challenged statements were properly admitted at defendant’s trial. Although there is no question that, on June 29, 1988, defendant was in custody as the result of an immigration violation, we conclude that he was not interrogated on that date.

The officers who interviewed him and suggested he cooperate in the drug investigation told defendant they did not intend to prosecute him for any previous criminal activity. Also, there is no indication that the police considered defendant a suspect in a particular crime or current investigation. See People v. Downer, 192 Colo. 264, 557 P.2d 835 (1976). Nor does the record show that they were attempting to elicit an incriminating response from defendant during the June 1988 interview.

Furthermore, we are not persuaded that defendant’s statements were made as the result of police coercion. To the contrary, the unrefuted evidence in the record indicates that in the June 1988 interview, defendant voluntarily discussed his role as an informant with the police. See United States v. Olmstead, 698 F.2d 224 (4th Cir.1983). Under these circumstances, no Miranda warnings were required.

II.

Defendant also contends the trial court erred in denying his motion to suppress the cocaine seized from him on May 14, 1989. He maintains that the police lacked probable cause to stop the car, thus rendering the warrantless seizure of the cocaine illegal. We disagree.

Under the totality of the circumstances here, the police had not only reason to stop, but also reason to arrest. See People v. Ratcliff, 778 P.2d 1371 (Colo.1989). Inasmuch as the arrest was valid, it follows that the search was proper. People v. Lagrutta, 775 P.2d 576 (Colo.1989). Under these circumstances, there was no error in the trial court’s denial of defendant’s motion to suppress the cocaine.

III.

Defendant next contends that his statements made to the police on May 14 and May 15 were inadmissible because he did not knowingly and voluntarily waive his Miranda rights prior to being questioned. He also argues the statements were made as the result of police promises and coercion, thus rendering them involuntary. We do not agree that the statements should have been suppressed.

After being advised of his rights pursuant to Miranda, a suspect may waive his rights provided the waiver is knowingly, intelligently, and voluntarily made. The validity of a waiver must be assessed on the basis of the. totality of the circumstances surrounding the custodial interrogation, and specifically, a court must determine whether the waiver was the product of free and deliberate choice, rather than intimidation, coercion, or deception, and whether it was made with a full understanding of the consequences. People v. Hopkins, 774 P.2d 849 (Colo.1989).

[488]*488We initially conclude that although it may be better practice for an officer verbally to inform a suspect of his rights pursuant to Miranda,

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829 P.2d 484, 15 Brief Times Rptr. 1561, 1991 Colo. App. LEXIS 336, 1991 WL 264806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-elagnaf-coloctapp-1991.