People v. Vigil

coal-loading facility, are inappropriate we satisfied that under the circumstances of granting injunctive the permanent relief the as to plaintiffs’ case render the eq- sought by highly inap- would DeVilbiss be claim uitable moot. We accordingly re- fundamentally inequitable propriate and judgment the verse of the appeals court of present under the facts here. DeVilbiss’s and remand the case to that court with permanent injunctive claim for relief could to judgment directions reinstate the of dis- injunction a mandatory satisfied be previously missal entered the district requiring Company Coal to re- Snowmass court. facility the or its radically move alter de- sign. remedy, being Such a addition KIRSHBAUM, JJ., LOHR and do not general the step out of that in- rule participate. protec- junctive primarily relief should be against acts, past tive future rather than impose

would a substantial loss or financial

hardship Company on Snowmass Coal

engaging expressly conduct was by governmental

sanctioned action.

short, the removal of coal- the

loading facility, which was built at cost of a pursuant million governmental $7.7 Colorado, PEOPLE of the State permit processes, variance and would Plaintiff-Appellant, grossly arguable disproportionate legal permit pro- error in variance the the cedures led to construction of the VIGIL, Anna Irene Anna Irene a/k/a

facility. Martinez, Defendant-Appellee. No. 84SA459.

IV. holding We limit our particular the Supreme Colorado, Court of When, here, facts of this case. as En Banc. applied defendant has for and received Dec. necessary governmental variance and the permits for the construction of a coal-load-

ing facility proceeded and then has at con- expense to complete

siderable itself to facility during

authorized pendency

litigation seeking permanently enjoin facility, plain-

construction of the when the challenged

tiff has the legality of the vari- sought permanent injunc-

ance and has prohibiting construction of fa-

cility but has to seek any failed form of

temporary preliminary injunctive or relief prohibit the commencement of construc- preserve

tion and to quo during status pendency litigation, when

substantial interest would defendant detrimentally by judicial affected relief permanent form of a injunction re-

quiring the removal radical alteration of completed project, a trial court

properly permanent conclude that the in-

junctive sought by relief plaintiff is so Smith, Atty.,

James F. Dist. Steven L. testimony necessary to an understanding Bernard, Brighton, Deputy, Trial Chief of the issues the propriety of plaintiff-appellant. production the order for of the informant. Mintz, Semple,

David J. Emerson B. Den- Officer Dennis Cribari of the Denver Po- ver, defendant-appellee. Department lice hearing testified at the on

the motion for disclosure of confidential LOHR, Justice. informant and described the leading events up to the arrest of Martinez. Cribari stat- People appeal judgment The a of the ed that he and Larry Officer in Subia were County dismissing Adams District Court an unmarked car in downtown defendant, charging Anna p.m. Denver at about 3:00 on October (Martinez),1 possession Irene Martinez 1983, when Officer Subia received a mes- of a schedule I controlled substance and sage pager.2 over his The caller said that of a I distribution schedule controlled sub- (Chavez) Rafael Kenneth Chavez was at 12-22-309, stance. 5 C.R.S. §§ Lounge the Mint Washington at 8400 18-18-105, (1986). 8B C.R.S. On a motion himself, Street. The identify caller did not defendant, by the the district court ordered recognized but Officer Subia the voice as produce a confidential infor- that “an informant of his.” hearing. mant at an in camera When the prosecution comply refused to with this The officers were aware that there was order, the district court dismissed the case. outstanding Chavez, an federal warrant for hold that the district court acted within though they and even knew that the Mint ordering production its discretion in of Lounge in City was located of Thorn- Therefore, the confidential informant. ton, we in County, they Adams decided to judgment affirm the of dismissal. tip. They check out the elected not to

attempt to contact Thornton authori- ties “and send them en route to the Mint I. Lounge on a hunch may that [Chavez] required The district production through there the informant’s informa- of the confidential in informant order to Lounge, tion.” While en route to the Mint necessary obtain information to resolve mo- Officer Cribari contacted the National suppress tions to evidence. Defendant Crime Information Center order to con- Martinez’s predi- motion to was plate firm a license number that he be- cated on the assertion that the Denver offi- belonged lieved to a black Pontiac Grand cers who willfully arrested her had acted Prix prior owned Martinez. Based on illegally going outside Denver to information, Officer Cribari knew that Cha- accomplish the arrest County. Adams vez a close was associate of Martinez and prosecution argued that the officers may using have been one of her cars.3 County response tip went to Adams to a from a confidential informant and under specifically Officer Cribari denied that calling prompt circumstances kept action. had officers Martinez under sur- questioned Martinez existence of the veillance at time on October 28. Mar- tinez, however, summary informant. A produced relevant several witnesses Vig- mately 1. The defendant is described as Anna Irene ten to fifteen seconds before a second il, Anna Irene in the direct beep signals a/k/a per- termination of the call. The criminal information. The record indicates that pager son with the can hear what the caller is she has married a man named Martinez and saying but cannot talk to the caller. now uses that surname. light wag- 3.Martinez also owned a blue station pager 2. The worn Officer Subia is known as on. Officer Cribari testified that he did not pager. a radio contact If someone desires to contact the National Crime Information Center person type pager, contact a with this wagon about the station because he was sure of phone assigned caller will dial number to the plate its license number. pager. hearing beep, may After the caller begin talking speak only approxi- but can contrary, stating acting physical testified to the outside the limits who of their jurisdiction parked 16-3-106, across from Mar- in violation of the officers had section (1986). time, in northwest Denver near 8A At tinez’s house C.R.S. the same her when mid-day and had followed vehicle defendants filed motions for disclosure of ques- the house. This called into the confidential informant. she left It was the de- testimony concerning position the cir- question fendants’ Cribari’s that resulted in the officers’ whether the confidential actually cumstances existed, Lounge. trip to the Mint what the informant have said and when the informant Lounge, Upon arriving at the Mint Cri- imparted have the information all bore testified, slowly bari drove directly on whether Officers Subia Cri- looking through parking lot for either complied bari had with the statute and Chavez or one of the two vehicles whether of evidence should be suspected might driving. he The offi- any noncompliance. ordered as a result of standing spotted cers Chavez and Martinez ques- The defendants maintained that those Prix, conversing. the behind black Grand tions needed to be resolved so that a fair appeared to Martinez handed Chavez what suppress determination of their motions to wrapper,4 whereupon a coin the officers be place. could take got of their car. When Chavez and out Following testimony by Martinez saw the Chavez fled. witnesses and arguments counsel, pursued Cribari Chavez and a the trial Officer court ensued, struggle during granted which Chavez the defendants’ motions for disclo- dropped wrapper. coin sure on the the With Officer bases disclosure of the assistance, Subia’s Officer Cribari was able informant was essential to resolve issues credibility then raised the officers’ to handcuff Chavez. Subia showed absolutely green Cribari a balloon that Subia said and that disclosure was neces- dropped during sary protect rights the the defendants’ to Chavez had sometime struggle. process detained due of law and to confrontation. While Officer Cribari Chavez, prosecution pro- The court ordered that the Officer Subia retrieved the coin duce the informant at an in camera hear- wrapper dropped Chavez had and found ing. that it contained several balloons. The of- Counsel for the defendants would be present, the defendants ficers then handcuffed and Offi- allowed to be but suspects privy nor to made cer Cribari watched the while Of- were neither to attend be any developed at the hear- police ficer used his radio to summon Subia ing. prosecution A The refused to disclose police. Thornton Thornton car identity of the confidential shortly arrived thereafter. Officers Subia the asserting the informant’s transported to the a concern for and Cribari Chavez station, safety, court dismissed the case Thornton and the Thornton and the prose- against and Martinez. The officers took Martinez to that same loca- Chavez There, appealed the dismissal to this court. suspects tion. the were searched cution Quantities During pendency appeal, the of this defend- and booked. of heroin were Therefore, ant died. case possession. found in Martinez’s Chavez moot, only against Chavez became proved The in the balloons also substance validity of the order of dismissal as heroin, and Martinez to be and both Chavez resolved. defendant Martinez remains to be subsequently charged possession were in their on contend briefs and distribution of heroin. The defendants first, that the disclosure order was appeal, motions the evidence ob- filed arrests, even if the officers acted improper contend- because tained as a result of their arresting Martinez outside their illegal illegally ing principally that the arrests were illegality jurisdiction, Officers Subia and Cribari were territorial because commonly wrapper an item years a coin that based on his knew that 4. Officer Cribari testified enforcement, transporting narcotics. experience narcotics he used for statutory stemmed from a violation and not tions of fundamental fairness sometimes exclusionary require identity a one. The constitutional that the an such infor rule, assert, mant be revealed. can invoked as reme- Roviaro v. United States, 60-61, dy infringement for an U.S. at at constitutional S.Ct. 627- 628; People rights, Dailey, “may appropriate” but for a (Colo. 1982). Therefore, “[wjhere statutory violation. Martinez’s interest in dis closure of an informer’s obtaining identity, or of possible information about a stat- communication, contents of his violation, therefore, is relevant utory “is not as crucial helpful accused, to the defense of an or rights inas the case where constitutional is essential fair Second, determination of a People urge are at stake.” cause, privilege give way. must learning that the interest in defendant’s these situations the trial identity informant is be- attenuated ” States, disclosure.... Roviaro v. United cause information the might 60-61, (foot 353 U.S. at 77 S.Ct. at 627-628 possess would relate circum- omitted). note Accord giving stances rise to officers’ 646 P.2d at 935. Dismissal an action Lounge at the Mint and would be “substan- may be proper ordered in circumstances if tially guilt unrelated to the defendants’ or government declines to disclose ac Finally, innocence.” assert that cordance with the court’s order. Roviaro adequate no factual basis has been estab- States, 60-61, United U.S. at suggest “to lished that the informant did 627-628, People Martinez, S.Ct. provide not exist that he did not (Colo.1983); Korte, 260 People P.2d v. 198 him statements attributed to 474, (1979). 2 Colo. 602 P.2d Detective We Cribari.” first review the governing standards disclosure infor- of determining privi whether People’s mants then consider the three lege yield particular case, should ain arguments interrelated for reversal. must public’s balance the interest in

protecting the of flow to law II. enforcement authorities about criminal ac tivity against the defendant’s to need ob A. necessary tain evidence preparation for the recognized law has long govern The States, of a defense. Roviaro v. United qualified privilege ment’s choose 62, People 353 U.S. at 77 S.Ct. at 628. v. identity person of disclose has who Korte, 475, 198 Colo. at 602 P.2d at 3. provided law enforcement officers in a proper “Whether balance nondis renders concerning formation violations of law. depend par closure erroneous must on the States, 53, 59, Roviaro v. United 353 U.S. case, taking ticular of each circumstances 623, 627, (1957); 77 S.Ct. 1 L.Ed.2d 639 charged, into consideration the crime Bueno, 931, (Colo. People v. 646 P.2d 935 defenses, possible possible significance 1982). The privilege exists in to en order of testimony, the informer’s rele and other courage perform obligation citizens to States, vant factors.” Roviaro v. United to advise law enforcement officers of infor 62, 353 U.S. at 77 S.Ct. at 628. Accord mation the commission of Bueno, v. People 646 P.2d at 935. States, crimes. Roviaro v. United 353 A is defendant not entitled to the 59, 627; U.S. 77 at S.Ct. at v. Mc disclosure an informant on the based Lean, 1157, (Colo.1983). P.2d 1159 661 requires assertion his bare defense it. however, The privilege, purpose not ab a rule very Such would defeat the Although Illinois, solute. generally balancing a defendant test. McCray right 306-11, 1060-1062; has no constitutional at the disclosure 386 U.S. 87 S.Ct. at 259, 255, of a confidential People Marquez, 190 Colo. McCray v. Illi 546 nois, 300, 312-14, 1056, 482, (1976). every 386 U.S. 485 “In case ... an S.Ct. 1063-1064, (1967), supported by L.Ed.2d of disclosure must be considera- order exhibits, upon specula- not rest parties the record and prelimi- at the Bueno, conjecture.” People nary or hearing, hearing on the motion for Langford, disclosure, P.2d at 936. Accord and from statements of coun- 329, (1976). 191 Colo. 550 P.2d McLean, sel.” 661 P.2d at 1159. Therefore, disclosure of a in- confidential If there is evidence support record to formant be ordered where the the order of compelling the trial court dis- defendant has established a “reasonable closure, the order must stand. People v. Colo, basis fact to believe the informant is a Korte, 602 P.2d at 3. likely helpful source of relevant and evi- dence the accused.” B. 646 P.2d at 936. sought Martinez disclosure of the infor- recognized have also where mant principally acquire information rel- the informant was not a witness to the suppress evant to her motion to evidence charged, way crime or in some was not obtained as a result of her arrest. The episode, involved in the criminal the defend thrust of Martinez’s motion to necessarily difficulty showing ant has more was that the officers acted in willful dis- that disclosure of the informant would be 16-3-106, obedience section 8A C.R.S. helpful relevant or to the defense. See and that proper is a Alamo, People v. Del illegal for that action. (Colo.1981)(informant not a witness to mat received; ters as to evidence was which provides: Section 16-3-106 proper). refusal to order disclosure any peace pur- When officer inis fresh possibility that disclosure of the informant any alleged offender, having suit helpful will result in evidence relevant having warrant for his arrest or knowl- simply the accused is more remote under edge issued, that such warrant has been circumstances, tips such and the balance or, warrant, in the absence of an arrest heavily in protecting more favor of when the offense was committed in the public’s promoting interest in the free flow officer’s or the officer has rea- relating activity of information to criminal grounds sonable to believe that the al- police. from citizens to “When all the evi leged offender has committed a criminal dence discloses that the informant was an offense, alleged and the offender crosses more, nothing prosecu and boundary marking a line the territorial not, rule, general tion should as a be re authority, peace limit such of his officer quired identity.” People to reveal his v. beyond may pursue boundary him such Colo, Langford, 191 at 550 P.2d at 331. arrest, line and make the issue a sum- People Accord v. 646 P.2d at 937. complaint, mons and or issue a notice of penalty assessment. reviewing In the trial court’s or Implicit premise der to disclose the confidential in this statute is the that findings peace may go terri- the court’s of fact relevant to the officers not outside the authority issue of disclosure will not be disturbed torial boundaries of their to ar- clearly People suspects except unless are erroneous. rest in the limited circum- People Wolf, 635 Finally, v. 658 P.2d at 262. we stances described. v. (Colo.1981). enacting mindful P.2d 213 In this sec- must be that the decision of wheth tion, Assembly er to order disclosure is General ... intended committed “[t]he peace exercising their sound discretion of the trial court and that to limit officers from powers and their enforcement court’s exercise of that discretion is arrest law efforts, limits of their strong People entitled to deference. v. Mc to the territorial Lean, peace 1159; authority require and to that local People Dailey, 661 P.2d at v. based, participate in the 639 P.2d at of officers be advised 1077. “This is course, law enforcement activities proximity on the trial court’s extraterritorial witnesses, at 216. Ac- presentation peace officers.” Id. of the facts of other Florez, People Thereafter, cord v. People P.2d Hamilton, in v. we (Colo.1984);People Hamilton, P.2d v. although held that the extraterritorial ar- (Colo.1983). police Even when a at rest issue in that case was contrary to 16-3-106, officer a warrant for the of a has arrest section the evidence obtained as person, special least in the absence of consequence “may at a be suppressed ... offi- authorization the warrant itself the if only the unauthorized arrest violated go cer not outside territorial constitutional constraints on unreasonable authority accomplish of his boundaries Id., searches and seizures.” 666 P.2d at Then, arrest unless the officer is in fresh People Florez, v. we inter- pursuit alleged People preted offender. v. People v. Hamilton to a Hamilton, 666 P.2d at 155. step When section process: two “If the court finds that by peace 16-3-106 has been violated a offi- the officer has exceeded statutory his ar- cer, as a of evidence obtained result authority, rest the court then must deter- violation should be if suppressed the viola- mine whether the unauthorized arrest infringes tion right also of constitutional unconstitutional therefore warrants defendant, right such as the free to be of illegally seized evi- from unreasonable searches and seizures. People Florez, dence.” v. 680 P.2d at 223 People Wolf, 635 P.2d at Ac- (emphasis original). 217-18. n. 5 We went on Hamilton, cord however, P.2d at 156. immediately suggest, sup- that pression for statutory violation is however, People suggest, foreclosed, stating, not by peace “violations exclusionary rule applicable only should be statutory of upon limitations their when evidence is obtained as the result of will, however, authority arrest continue to infringement rights an of constitutional carefully scrutinized.” Id. predicated simply cannot viola- on a statutory tion of limitations on the authori- Moreover, police if officers exhibit a ty peace of such as those limita- “knowing disregard of the territorial tions authority peace on extraterritorial of authority, coupled boundaries of their officers set forth in section 16-3-106. It is ... failure simple to avail themselves true in People we did procedures readily legitimiz- available Wolf impose exclusion of evidence as a i.e., ing arrest,” an extraterritorial seeking exceeding scope activities peace officers, the assistance local authority recognized extraterritorial sec- actions fall “within the zone consti- However, expressly 16-3-106. we not- II, tutional unreasonableness under Article possibility ed the of such relief in appropri- Section of the Colorado Constitution.” circumstances, stating: ate (Quinn, P.2d Wolf, 635 at 219-20 J., dissenting); Hamilton, see cases where the act in willful 156-57; law, Lott, disobedience of the courts have cf. 78, (1979) Colo. 589 P.2d 945 supervisory (suppressing not hesitated to use evidence for power violation of section to exclude This 16-3-106 evidence.... without Court discussion distinction cannot sanction willful recur- between law, thus, violations). constitutional statutory rent violations of the fu- however, emphasized, have ture that governing violations of the viola- statutes peace per tions section 16-3-106 authority officers’ are se arrest application protected violations of trigger constitutionally exclusionary Thiret, rights. People 685 P.2d suppression rule and of evidence (Colo.1984) J., (Quinn, writing for in the unani- obtained course of an extraterrito- court); Hamilton, mous 666 P.2d rial arrest. at 156. Id., (citations omitted). at 217-18 Const, VI, (supreme Colo. art. principles emerge Salient from the § Cf general shall have a superintending foregoing suppression are control decisions is courts). over possible lower not foreclosed as by police mid-day officers of sec- on willful violations October 28. Two of the wit- statutory and that such viola- nesses testified that when tion 16-3-106 Martinez left the house and any trigger suppression away, in event will drove tions officers fol- egregious lowed Martinez’s vehicle.5 they if are so as to violate the against protections unreasonable searches principally Based on conflicting this testi- guaranteed by and seizures our state con- mony, as discrepancies well as other in the apparent stitution. It is from our cases concerning evidence the details of the ar- respect that the facts with to the reasons rest, counsel for Martinez ques- called into for and nature of extraterritorial actions of tion the existence of the infor- confidential highly important officers are in de- mant. attorney posi- Martinez’s took the termining suppression whether of evidence tion that there was an issue raised as to the required officers make ar- when testimony truthfulness of Cribari’s which juris- rests outside the of their boundaries directly bore on whether the officers had Thiret, dictions. 685 P.2d at See willfully violating acted in section 16-3- 200; Florez, 222-24; at P.2d 8A C.R.S. and that the officers Hamilton, 156-57; People v. 666 P.2d at following in fact have been Martinez People Wolf, 635 P.2d at 217. We turn from the time she left her home in north- developed now to facts the record of up west Denver until the time of the al- present case. leged drug transaction outside the Mint Lounge County.6 Therefore, in Adams

C. sought Martinez disclosure of the infor- hearing At the on the motions disclo- mant so that it could be determined wheth- sure of confidential er an Officer Cri- informant existed and whether Offi- although testimony bari testified that he was ac- cer correctly Cribari’s described quainted prior with Martinez from investi- the circumstances that resulted the offi- gations, kept he and journey Lounge. Only Officer Subia had not cers’ to the Mint Martinez under fully developed, surveillance at time on when that information was asserted, day October of her arrest. The Martinez would the court be able witnesses, presented defendants several to make an informed decision whether the however, they required who testified that had seen officers’ extraterritorial activities parked Officers Subia and Cribari a ve- of the evidence seized as a hicle across from Martinez’s house near result of arrest.7 her Also, although sary concerning Officer Cribari testified that the to resolve issues Officer Cri- pos- credibility. nothing information he and Officer Subia bari's There is other than Lounge proceeded speculation suggest sessed when to the Mint that the informant was a message was the terse surrounding over Officer Cribari’s witness to the events the arrest. location, pager that Chavez was at that another single speculation is based on the fact that segment testimony of the officer’s own casts the informant knew of Chavez's at the accuracy doubt on the questioned of that statement. When Lounge might Mint and therefore have been in prosecutor as to the basis for position parking to observe him in the lot at urgency checking tip out the that Chavez was assertions, the time of his arrest. Mere without Lounge, responded, at the Mint Officer Cribari them, support enough are not evidence .to when, knowing doing A Not what he was establish a reasonable basis in fact to believe Knowing the bar. what I knew about or with that the informant could have been such a wit the information that I had See ness. (Colo. 1982). 936-38 defendant Chavez and defendant Martinez not being Lounge, yes, inside of the Mint I thought very get important it was there as present not at the 7.The Thornton officers were quick possible. as arrest, sup- so the arrest cannot be time of the Martinez, however, judge Neither the trial nor Schultz, ground. People ported v. on that See possible inconsistency. made reference to this 47, (1980). Nor is this a 200 Colo. 611 P.2d 977 present People in v. such as the one situation attorney suggested argument 6. Chavez’s also in 224, Florez, P.2d at where we held that when 686 the informant could have been a witness to City Englewood, in un- Commerce officers were surrounding the events the arrest. The trial suspect expectedly arrest war- saw a for whom however, judge, apparently ordered disclosure immediately outstanding, notified were rants ground on the sole that disclosure was neces-

368 testimony conclude that the trial court tinez’s defense. If Cribari’s was correct, set forth earlier the trial court could to the standards have conclud- adhered faith, good discre ed that the officers acted in opinion in this and did not abuse its although perhaps beyond authority, ordering in disclosure under these cir tion and not in willful violation of repeatedly recog section 16-3- We have cumstances. 106, tip when elected to act on a fresh judge in discretion vested a trial nized the concerning the whereabouts of Chavez. disclosure of an informant when to order hand, the other if On there was no infor- credibility challenged of an officer is in tip, mant and no the trial court could have suppress. motion connection with a Peo concluded that the officers had arrived at. Nunez, (Colo.1983)(ex 658 P.2d 879 ple v. Lounge by following the Mint Martinez accuracy informant or of infor istence of maintaining there after surveillance on her disputed), granted, mant’s statements cert. house, 65, purposeful and that such travel into 812, 104 78 L.Ed.2d 80 464 U.S. S.Ct. County resulting Adams and the arrests dismissed, 324, 104 cert. U.S. jurisdictional outside the officers’ 1257, (1984); bound- People S.Ct. 79 L.Ed.2d 338 v. aries were willful violation of (Colo.1983)(same); the law 658 P.2d 260 perhaps and in violation of con- Martinez’s (Colo.1982) People Dailey, 639 P.2d 1068 v. rights. Contrary People’s stitutional (existence accuracy informant or in of argument, ample there was an factual ba- disputed ques formant’s statements and question sis call into the existence of an credibility of informant and offi about person’s informant and the content of that raised); Quintana, People cer 183 Colo. statements. 81, 85-86, 1325, (1973) (in 514 P.2d disclosure, support order order though ques- Even the resolution of the judge’s concerning credibility of doubt wit tions of the existence of an informant and evidence); ness must be based on DeLa message by the content of the received People, Cruz v. 177 Colo. 492 P.2d 627 officers from such informant not (1972)(if judge credibility of doubts affiant directly guilt related to Martinez’s concerning allegedly supplied drug charges, innocence on the it was cen- by ordered); disclosure tral to the fair determination of Martinez’s People see Certainly motion evidence. (court’s (Colo.1982) doubt truth court should not order disclosure of an of officer’s assertion about existence if the merely defendant makes may justify an informant disclosure in con where, unsupported allegations. But as suppress). here, nection with motion there is a reasonable basis question credibility evidence to of an case, present production officer, discretion, may, in a court its order light informant would have shed on the People Dailey, disclosure. 639 P.2d at credibility issue of Cribari’s con- Officer 1076-77.8 cerning the informant therefore would helpful judgment have been relevant and to Mar- We affirm the of dismissal. Englewood requesting help, contemplated by inappro- authorities dures the court were stopped suspect priate. then and detained the until En- statutory we note While arrived, glewood there was no hearing, contemplated counsel at such a as violation. In that case we reasoned that order, proce- the trial court’s varies from the seeking obtaining the aid of local suggested People Dailey, P.2d at dure City stayed officers had Commerce within n. we have no determine occasion to authority. Finally, the limits of their properly the trial exercised its whether suggested have not that the arrest of Martinez adopting procedures contained discretion supported statutory provisions under can be Also, in its order for disclosure. do People Wolf, P.2d at citizen arrests. See 216-17; dismissal, challenge appropriateness Bloom, 246, 255, Colo. sanction, as the rather than some lesser (1978). 292-93 of the trial court’s order of for the violation disclosure, so that issue is not before us. challenge 8. The do not the order for proce- disclosure on the basis that the in camera VOLLACK, J., presence. dissents. in their import, Of the trial court did not rule on suppression of the ROVIRA, JJ., join in ERICKSON and evidence for 16-3-106, violation of section the dissent. (1986). Rather, 8A C.R.S. it dismissed the charges against the defendant for failure VOLLACK, Justice, dissenting: prosecution of the to disclose the confiden majority The holds that the trial court tial informant. Applying reasoning dismissing did not its abuse discretion People Wolf, where the evidence was possession two counts of and distribution obtained from a crime committed in the of a schedule I controlled substance when presence, officers’ there sup should be no prosecution refused to disclose the con- pression of the evidence. The disclosure of I respectfully fidential informant. dissent. the confidential inappropriate informant is The issue is whether the disclosure of the here. identity provide informant’s would evidence I inappropriate believe disclosure here is necessary for the court to determine the upon based Colorado law. We have ad- validity of the extraterritorial arrest of the dressed two common involving situations possible defendant privileges. People Bueno, informer possession heroin found in the of the de- (Colo.1982). In the first situ- fendant. ation, disclosure of identity an informant’s view, my the facts of this case arises in connection with the defendant’s apply reasoning us to evidence, motion to and in the (Colo.1981), Wolf, 635 P.2d which situation, second disclosure arises in con- although police held that case were nection with the defendant’s claim that the acting outside the territorial limits of their informer is an essential witness on the 16-3-106, authority under section 8A Here, guilt issue of or innocence. the de- acting pri- C.R.S. and were not as fense asserted that the informant would 16-3-201, citizens vate under section 8A provide valuable information (1986), nonetheless, C.R.S. they had the credibility the officers’ as to whether or not power persons to arrest for a crime com- willfully juris- the officers exceeded their Here, presence. mitted in their the crimi- diction in violation of section 16-3-106. drug personally nal transaction was ob- The trial court ruled that the informant’s private served “If two detectives. identity was essential to the of the merits power persons citizens have the to arrest suppression hearing where the officers’ presence, who commit crimes in their cer- credibility challenged concerning was what officer, tainly police outside his territorial Initially, the informant told them. how- jurisdiction, ever, power.” People has the same the trial court stated that it did not Wolf, (quoting People credibility 635 P.2d at 216 v. believe that of the two Den- Bloom, 246, 252, seriously ver officers had chal- 195 Colo. been (1978)). lenged. The record contains a conflict in Probable cause measures the involving the evidence the actions of the constitutionality of an arrest law en- regarding detectives of Mar- surveillance forcement officers. The test is whether during morning tinez’s house of Octo- the facts available to the Nevertheless, the activities ber support their belief that an offense has in the of the detectives afternoon Octo- being Certainly, or is committed. been 28, 1983, leading ber were uncontradicted there can nobe doubt that where a crime is up County. the arrest It Adams committed of the undisputed that the detectives knew probable cause to arrest exists. existence of federal warrant issued Wolf, 635 P.2d at 217. Such is the case Chavez. here, and the fact that the officers in this case have violated section 16-3-106 question of whether an informant does not raise their action to a constitution- must determined on should be disclosed People Marquez, al violation where the crime facts of each case. was committed the 370 255, 258, (1976).

190 Colo. arrest or agree, issue a search warrant. I situation, public The determination must balance the in such a challenging the protecting veracity police the flow of officer interest informa of a was appropriate. case, however, tion to law enforcement authorities In the about instant the crime was activity against presence criminal the defendant’s committed police within the of the and, therefore, necessary need to obtain evidence for the disclosure of the preparation of a defense. Roviaro v. Unit confidential informant would to go States, 53, 62, ed 623, 628, probable 353 U.S. S.Ct. whether there was cause for the Korte, v. (1957); L.Ed.2d 639 arrest appropriate. and is not 474, 475, (1979). Colo. 602 P.2d Since the with offense which the defend- an showing defendant must make initial charged ant was was committed in the provide that the informant will information arresting officers, of the ar- essential to of the the merits rest in this case not violate did constitution- ruling by establishing “a reasonable basis and, al restraints on unreasonable seizures an in fact to believe that informer does not therefore, exclusionary of the or, does, exist if he did not he relate to the imposed. See rule should not upon po information which the Wolf, 635 P.2d at 217. probable relied as cause purportedly lice I believe the trial abused its discre- an arrest v. Bue search.” ordering tion in the disclosure of the confi- no, (emphasis added). 646 P.2d at 936 dential in dismissing informant and protects have noted ju that disclosure charges against the defendant when the process against dicial abuses false affi prosecution comply refused to with that Id. davits. and, accordingly, order I would reverse. The cases the majority sup cited to I am authorized to state that ERICKSON port its decision that the confidential infor JJ., ROVIRA, join and in this dissent. mant be disclosed in this case inappo- are They site. concern information from confi prob

dential informants used constitute

able cause for an arrest or search.

People Bueno, credibility of a questioned regard

officer was with probable

whether the affidavits established Haydee KORT, Superintendent cause for the arrest warrant. 646 P.2d Dr. of the In People Dailey, Hospital Employees 639 P.2d 1068 Colorado State (Colo.1982), it appropriate Hospital, we said that was State Colorado Peti challenge veracity of an officer tioners-Appellants, regard supporting to affidavits a search pursuant to a warrant. P.2d at 1076. HUFNAGEL, Lynne Honorable F. Dis Again, Judge, trict District Court in and for (Colo.1983), ruled we the trial City County Denver, of court did not abuse its discretion in resolv Levi, Honorable Thomas C. District ing credibility factual and issues in favor of Judge, Court District and for the the defendant where the court found that a County Arapahoe, Respondents-Ap good faith for doubting basis existed pellees. accuracy of the affidavit for the issuance 85SA100. No. appropri search warrant. It was also ate order disclosure the confidential Colorado, Supreme Court challenge informant provid En Banc. by the probable ed to establish 15, 1986. Dec. search a defendant’s home. Peo cause Korte, ple 198 Colo. at 602 P.2d at

3. The issue in cases these was whether

probable cause to either existed make an

Case Details

Case Name: People v. Vigil

Court Name: Supreme Court of Colorado

Date Published: Dec 8, 1986

Citation: 729 P.2d 360

Docket Number: 84SA459

Court Abbreviation: Colo.