*1 No. 28328 People Hillyard of the State of Colorado v. James Dean (589 939) P.2d January Decided 1979. Anderson,
John Faulk, District Attorney, Dennis E. Deputy, for appellant.
Fredrickson, McDermott, P.C., Kiehnhoff, & Johnson Tom N. appellee.
En Banc. MR. JUSTICE GROVES opinion delivered the of the Court. con- under C.A.R. 4.1 interlocutory appeal by
This is statements and the defendant’s suppressing court order testing a district de- charged with second defendant was arrest. The after his items seized *2 $200 18-4-203, 1973) theft of less than (section C.R.S. burglary gree (1976 We re- 18-4-401, Supp.)). $50 C.R.S. 1973 (section more than but verse. Martin. He was that of Officer the court testimony before
The between the following transpired approximately events testified in Canon Officer May City. 3:00 a.m. on hours of 1:00 a.m. and walking and then pausing a companion defendant and saw the Martin drugstore. The officer and unlit gaze to into a closed one minute about weekend, was in that a carnival Blossom Festival in mind that was had under those circumstances. town, usually greater that street crime asked for on, stopped Martin them and walk but officer began two The relaying After their names, identification. birthdates and some their ra- Center means of car Crime Information to the Colorado names outstanding Navy dio, that there was an the officer learned claimed he was defendant. The defendant arrest warrant for the A.W.O.L. that he had Navy man and asserted than the AWOL person a different The told the grounds. the carnival officer at his truck near identification go, drove the defend- he was free to and then that companion identification. produce any defendant failed to his truck. There the ant to read him warnings, the defendant and The officer arrested was AWOL. admitted he whereupon the defendant station, began telling the offi- way police On the earlier that eve- had committed burglary companion about a which his cer comments by any questions information was not elicited ning. This fact, no basis on which to prompt Martin. In he had made Officer yet it had not been discovered. regarding burglary since him rights, the officer asked reminding the defendant of his After arrived the officer burglary. they When guide them to the scene of described, that, door of Book Cor- the back as the defendant had noted car, again returned to the been kicked in. The officer ral Store had been rights and asked what had taken the defendant of his reminded taken and that stereo had been equipment The defendant stated the store. the de- grounds. The officer informed in the truck at the carnival placed the truck or that the officer could consent to a search of fendant that he officer’s defendant consented search warrant. The could obtain a truck, equipment. officer there found the stereo search Officer ail statements he made to suppress moved to The defendant mo- from the truck. The Martin, person from his as well as items seized granted. tion was court s of suppression reversal of the district People request a
The alternative, or, of the case to the district a remand in the equipment, stereo which the Peo- of law fact and conclusions findings for additional court order. necessary support suppression ple claim have the court should contention that People’s with the agree We its conclusion support implied findings and conclusions additional made stop. invalid The court’s the fruits suppressed the matters that ruling findings supporting its only those facts and order includes was invalid. companion of the defendant and stop initial stop was invalid. arguendo We assume as to whether the tincture argued the issue have parties sufficiently justify colorable stop remained taint of the invalid above, conclusion as implied the court made an As stated suppression. se ev suppression stop does not this issue because an invalid Bates, P.2d 491 idence seized thereafter. 45 L.Ed.2d (1976); Brown *3 States, 407, 9 Sun United Sun, (1963). the court said: L.Ed.2d simply is ‘fruit of the tree’ poisonous “We need not hold that all evidence light but for the actions it would not have come because ‘whether, granting Rather, in a case is the more such police. apt question evidence to which instant illegality, primary the establishment of in- illegality of that by exploitation is come at objection made has been purged sufficiently distinguishable means stead taint.’” rule, se of a each just suggest cited the absence
The cases taking consideration such factors be decided on its facts into case must communications, degree of police voluntariness of the defendant’s intervening circumstances. relevant any misconduct stopped the defendant The officer undisputed. The facts committed, he had or was about suspicion reasonable without a commit, That, however, was extent of his misconduct. He any crime. Rather, he general suspicions. acted because upon did not arrest such outstanding The fact that the officer told the arrest warrant. Navy’s go free indicates that the officer did not companion he was investigation. his Once he in order extend simply arrest the defendant warrant, duty officer would have been derelict in not to knew of the Moreover, un placing before the defendant arrested the defendant. have procure truck so he could iden Officer Martin drove him to his der failed to identification was Only tification. when the defendant cause supplied by report on the basis of the arrest made Colorado Crime Information Center. rights, informing the defendant of his officer was scrupulous guide warnings before he the defendant asked repeating even alleged burglary. scene of the him the
Finally, appears defendant volunteered information of the bur- glary. It was a crime not yet reported discovered. There is no claim that way the officer in any prompted regarding any criminal ac- tivity. circumstances, Under the there was no motive for such questioning. He arrested the defendant to turn him over Navy, investigate not to jurisdiction. crimes in own
We conclude that the intrusiveness of the stop unauthorized was min- imal, that intervening there was an upon grounds valid fatally connected with the and that the stop, defendant volunteered information regarding a crime which had no relation either to his at the activity time of the stop or to his AWOL status.
We hold that in these circumstances the connection of the evidence the illegal stop so attenuated as to dissipate the taint. Conse- we quently, ruling. reverse the LEE,
MR. JUSTICE MR. JUSTICE ERICKSON and MR. JUS- TICE CARRIGAN dissent.
MR. JUSTICE
dissenting:
ERICKSON
respectfully
I
extrajudicial statements,
dissent. A defendant’s
or the
thereof,
fruits
cannot be
against
admitted into evidence
him unless the
prosecution can establish the voluntariness of those
beyond
statements
Moreno,
reasonable doubt. People
176 Colo.
I.
The
Detention
Unlawful
arresting
The
officer observed the defendant and his companion
standing for approximately one minute before the window
drugstore.
of a
They did not touch the window or door of
They
the store.
did not appear
to be
They
intoxicated.
did not repeatedly return to the window in a man-
Ohio,
indicating
ner
criminal intent.
Terry
1,
v.
Cf.
1868,
87
of a
the detention
court has found
in which this
every prior case
constitutionally permissible,
cause
without
person
justifiable sus-
arguably
articulable
from some
that detention resulted
Casias, 193 Colo.
People
officer. See
v.
part
peace
picion on the
144,
The officer’s privacy. of defendant’s invasion quickly dissipated gests, a minimal II. Physical Evidence and the Statements The Defendant’s ruling that the with the trial court’s Although majority concurs defendant, of that it concludes that taint stopping officer erred in his in- the defendant made by the time dissipated had unlawful intrusion following defend- the events A brief examination of statements. culpatory will conclusion. rebut that ant’s detention defendant, for the defendant’s he asked stopped the officer
When a to discover whether war- then called on his car radio The officer name. check, During with that name. anyone issued for rant had been person officer that a When the learned was not free leave. defendant, in a he drove the military, was wanted with that name truck, car, could his identifica- so that the defendant police tion. identification, he was unable to locate
When defendant was arrested, handcuffed, then drove pair and read his lot, the defendant they police parking reached police station. As store, although burglarized had a book the officer that his companion told of his The defendant was then advised unsure where the store was. he was again, two left the lot in car rights parking store, de- the defendant for the store. While the officer and looked find the burglarized had it. Not until after companion how his explained fendant located, repeated response questioning, and in to the officer’s the store had the store. Fifteen admit that he too entered finally did the defendant later, sto- told the officer where the items twenty minutes *5 evidence in the record been taken. There is no from the store had len then took the offi- during that The defendant transpired period. what show the officer had been secreted. After the truck where the stolen items cer to station, he returned the defendant goods, the stolen secured statement and asked for sign a written where the defendant refused lawyer.
88 lies of and Fifth
“This case
at
crossroads
the Fourth
Amend-
590, 591,
2254,
95 S.Ct.
ments.”
U.S.
45 L.Ed.2d
statements,
(1975).
inculpatory
The defendant’s
and the evidence
seized,
of
product
which was
were the
an intrusion which violated the
However,
Amendment.
States Supreme
Fourth
the United
Court has
never held that a
se “but for” rule is to be
applied in such cases: not
every Fourth Amendment violation results in the
suppression
resulting
incriminating
Evidence
independent
statements.
which has been obtained
against
of the violation is still admissible
the defendant. Silverthorne v.
States,
385,
182,
(1920).
United
251 U.S.
40 S.Ct.
“Although, years ago, almost 90 the Court observed that the Fifth /Amendment is in Fourth,” ‘intimate relation’ with v. United Boyd States, (1886), warnings Miranda thus far have regarded not been as deterring a means either of remedying violations here, Fourth Amendment Frequently, rights under the two since ‘the searches to coalesce “unreasonable Amendments may appear Amendment are almost always the Fourth seizures” condemned made for the purpose give compelling against a man to evidence him- self, which in criminal cases is condemned in the Fifth Amendment.’ Ibid. rule, however, . . . The exclusionary when utilized to effectuate the Amendment, Fourth serves interests and policies that are distinct from those it serves under the Fifth. It is directed all unlawful searches and seizures, merely and not those incriminating happen mate- testimony short, rial or as fruits. In exclusion of a confession made without warnings might regarded be as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully protect the Fourth. warnings, and the exclusion of a them, confession made without do not alone deter sufficiently a Fourth Amendment violation.
“Thus, even if the statements this case voluntary were found un- Amendment, der the Fifth the Fourth Amendment issue remains. In order chain, for the casual between the arrest and the statements made thereto, subsequent broken, requires merely Sun *6 but that of voluntariness standard Fifth Amendment meet the statement taint.’ 371 U.S. purge will to an act of free ‘sufficiently be admissibil- of a statement’s Sun thus mandates consideration 486. Amendment. Fourth interests of the and light policies of the distinct ity in the taint of themselves, to attenuate were held Miranda warnings, by “If purposeful wanton and regardless of how unconstitutional an rule would violation, exclusionary the effect of Fourth Amendment 721, 726-727 Mississippi, Davis diluted. See substantially cause, for or without without warrant (1969). Arrests made knowledge that encouraged by would be ‘investigation,’ questioning at trial well be made admissible therefrom could evidence derived Miranda warnings. incentive to avoid Any giving simple expedient by making the warn- would be eviscerated Amendment violations Fourth against unlaw- effect, ‘cure-all,’ guarantee and the constitutional ings, in ‘a of words.’” said to be reduced to form seizures could be ful searches and omitted). (footnote supra, at 601-603 Brown v. were statements in this case determining whether the defendant’s will, or ab- presence we must look not of his free product factors set forth in
sence of warnings, but to three other Illinois, supra: confession, the presence arrest and the “The of the temporal proximity and, and fla- purpose intervening particularly, circumstances . . . Id. at 603-604 (foot- misconduct are all relevant.” grancy of official omitted). *7 unreasonable, lief in its entirely sug- existence or if clearly the evidence gested pretext objectives the arrest was effectuated as a for collateral ... or the physical circumstances on unnecessarily intrusive I personal privacy, would consider the equalizing potential of Miranda
warnings rarely sufficient to
dissipate
taint. In such cases the deterrent
effective,
value of the exclusionary
likely
rule is most
and the corre-
sponding
preserve judicial
mandate to
integrity, see United
States
Peltier, ante,
531;
Tucker,
p.
Michigan
417 U.S.
450 n. 25
(1974) ,
clearly
most
demands that the fruits of official misconduct be de-
nied. I thus
would
demonstrably
some
break in the
effective
statement,
chain
leading
events
the illegal arrest
such
as actual consultation with counsel or the accused’s presentation
cause,
a magistrate
determination
before
before
removed,
taint can be deemed
Pugh,
see Gerstein v.
Accordingly, affirm decision of the trial court. MR. JUSTICE LEE and MR. JUSTICE CARRIGAN have author- ized me to announce that they join me in this dissent. notes case, the arrest and the in- elapsed than hour between In this less one only intervening statements. The circumstances culpatory defendant, continuing and handcuffing presence of the the officer’s of hour, warnings. during giving that questioning did serve to purge these circumstances implicitly trial court found that Thus, time nor the lapse neither the original the taint of the detention. given that the defendant had been intervening circumstances demonstrate incriminating free will before he made the opportunity to recover his States, supra. statements. See Sun v. United flagrancy” of the officer’s Finally, “purpose we must look for the satisfy curiosity. absolutely He had solely conduct. His purpose detain the defendant. no other reason to for this is not an unwarranted sanction Exclusion of this evidence exclusionary rule violation. The basic purpose Fourth Amendment illegal engages when it conduct. is to eliminate reward state require should the clearest evidence The officer’s actions in this case conduct has been attenuated. the taint in which indication of attenuation in cases “I would the clearest If, of Fourth Amendment flagrantly official conduct was abusive determining to make the the factors on example, relied lacking arrest were so in indicia of probable cause as render official be-