People v. Hillyard

589 P.2d 939, 197 Colo. 83, 1979 Colo. LEXIS 644

• Court: Supreme Court of Colorado
• Decided: January 29, 1979
• Docket: 28328
• Status: Published

Opinions

MR. JUSTICE GROVES

delivered the opinion of the Court.

This is an interlocutory appeal by the People under C.A.R. 4.1 contesting a district court order suppressing the defendant’s statements and items seized after his arrest. The defendant was charged with second degree burglary (section 18-4-203, C.R.S. 1973) and theft of less than $200 but more than $50 (section 18-4-401, C.R.S. 1973 (1976 Supp.)). We reverse.

The only testimony before the court was that of Officer Martin. He testified that the following events transpired approximately between the hours of 1:00 a.m. and 3:00 a.m. on May 3, 1978 in Canon City. Officer Martin saw the defendant and a companion walking and then pausing for about one minute to gaze into a closed and unlit drugstore. The officer had in mind that it was Blossom Festival weekend, that a carnival was in town, and that street crime was usually greater under those circumstances. The two began to walk on, but officer Martin stopped them and asked for their names, birthdates and some identification. After relaying their names to the Colorado Crime Information Center by means of his car radio, the officer learned that there was an outstanding U.S. Navy A.W.O.L. arrest warrant for the defendant. The defendant claimed he was a different person than the AWOL Navy man and asserted that he had identification at his truck near the carnival grounds. The officer told the defendant’s companion that he was free to go, and then drove the defendant to his truck. There the defendant failed to produce any identification. The officer arrested the defendant and read him Miranda warnings, whereupon the defendant admitted he was AWOL.

On the way to the police station, the defendant began telling the officer about a burglary which his companion had committed earlier that evening. This information was not elicited by any questions or comments made by Officer Martin. In fact, he had no basis on which to prompt the defendant regarding the burglary since it had not yet been discovered.

After reminding the defendant of his rights, the officer asked him to guide them to the scene of the burglary. When they arrived the officer noted that, as the defendant had described, the back door of the Book Corral Store had been kicked in. The officer returned to the police car, again reminded the defendant of his rights and asked what had been taken from the store. The defendant stated that stereo equipment had been taken and placed in the truck at the carnival grounds. The officer informed the defendant that he could consent to a search of the truck or that the officer could obtain a search warrant. The defendant consented to the officer’s search of the truck, and the officer there found the stereo equipment.

The defendant moved to suppress ail statements he made to Officer Martin, as well as items seized from his person or from the truck. The motion was granted.

The People request a reversal of the district court s suppression of the stereo equipment, or, in the alternative, a remand of the case to the district court for additional findings of fact and conclusions of law which the People claim are necessary to support the suppression order.

We agree with the People’s contention that the court should have made additional findings and conclusions to support its implied conclusion that the matters suppressed were the fruits of an invalid stop. The court’s order includes only those facts and findings supporting its ruling that the initial stop of the defendant and his companion was invalid.

We assume arguendo that the stop was invalid.

The parties have argued the issue as to whether the tincture of the taint of the invalid stop remained sufficiently colorable to justify the suppression. As stated above, the court made an implied conclusion as to this issue because an invalid stop does not per se require suppression of evidence seized thereafter. People v. Bates, 190 Colo. 291, 546 P.2d 491 (1976); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Wong Sun, the court said:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”

The cases just cited suggest that in the absence of a per se rule, each case must be decided on its facts taking into consideration such factors as the voluntariness of the defendant’s communications, the degree of police misconduct and any relevant intervening circumstances.

The facts are undisputed. The officer stopped the defendant without a reasonable suspicion that he had committed, or was about to commit, any crime. That, however, was the extent of his misconduct. He did not arrest upon such general suspicions. Rather, he acted because of the Navy’s outstanding arrest warrant. The fact that the officer told the defendant’s companion he was free to go indicates that the officer did not arrest the defendant simply in order to extend his investigation. Once he knew of the warrant, the officer would have been derelict in his duty not to have arrested the defendant. Moreover, before placing the defendant under arrest, Officer Martin drove him to his truck so he could procure identification. Only when the defendant failed to produce identification was an arrest made on the basis of the probable cause supplied by the report from the Colorado Crime Information Center.

The officer was scrupulous in informing the defendant of his rights, even repeating Miranda warnings before he asked the defendant to guide him to the scene of the alleged burglary.

Finally, it appears the defendant volunteered information of the burglary. It was a crime not yet reported or discovered. There is no claim that the officer in any way prompted the defendant regarding any criminal activity. Under the circumstances, there was no motive for such questioning. He arrested the defendant to turn him over to the Navy, not to investigate any crimes in his own jurisdiction.

We conclude that the intrusiveness of the unauthorized stop was minimal, that there was an intervening arrest upon valid grounds not fatally connected with the stop, and that the defendant volunteered information regarding a crime which had no relation either to his activity at the time of the stop or to his AWOL status.

We hold that in these circumstances the connection of the evidence and the illegal stop was so attenuated as to dissipate the taint. Consequently, we reverse the ruling.

MR. JUSTICE LEE, MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.