People v. Wolf

assault, degree of third as submitted to the

jury and as defined in section (1978 8),

C.R.S. 1973 Repl.Vol. (1) consist of

acting “recklessly,” (2) causing bodily

injury to another.21 As previously, noted

person may be aware that his conduct is an

endangerment to the child’s life or health

and, time, at the same may act “recklessly”

by consciously disregarding the risk that

bodily injury will result to the child from Thus,

his conduct. there is no inconsistency

in the finding verdicts defendant guilty of

both misdemeanor child abuse and third

degree assault. judgment

The is affirmed. Colorado, PEOPLE of the State of

Plaintiff-Appellant, WOLF,

Morris E. Defendant-Appellee.

No. 81SA56.

Supreme Colorado, Court of

En Banc.

Oct. 1981. knowingly when recklessly, any injury acts or and the act of child abuse results in except placing as to bodily injury, child in a situation that other than serious it is a class 2 may health, endanger its life or and the act of misdemeanor. any injury child abuse results in other than “ bodily injury, serious it is a class 1 misdemean- illness, ‘Bodily injury’ physical pain, 21. means or. If negligence, acts with criminal any impairment physical or or mental condi- including placing the element of the child in a (3)(c), tion.” Section 18—1—901 C.R.S.1973 may endanger health, situation that its life or (1978 8). Repl.Vol. Q. Beacom,

Paul Dist. Atty., Marc P. Mishkin, Deputy Dist. Atty., Steven Ber- nard, Deputy Dist. Atty., Brighton, plaintiff-appellant. Westminster, Dansky, Marvin for defend- ant-appellee.

ERICKSON, Justice. 4.1,

Pursuant to C.A.R. the district attor- ney prosecuted appeal has an interlocutory from suppressing an order evidence seized incident to the defendant’s arrest. At issue is the legality of an arrest made outside the jurisdictional po- boundaries of the Denver lice. We reverse the district court and re- proceedings mand for further consistent opinion. with this tip Based on a from an informant that defendant, Wolf, purchasing Morris merchandise, stolen the Denver Police De- partment Anti-Fencing initiated an Unit investigation. Arizona, place defendant’s 86 S.Ct. business, Loan, Adam located at 6489 L.Ed.2d 694 Initially, Fed- he declined to eral Colorado, Boulevard in Adams make a statement County, proclaimed his inno- However, was the cence. investigation. focus of the when the ap-At told him proximately 27,1979, the informant was wired for July 9:00 a. m. on sound and police that the had informant, recorded the Denver sent an defendant’s Ivory conversations and had seen the Greathouse, transactions into Adam Loan to transact place, take the defendant waived his Miran- “business” with the defendant. The infor- rights da and made a statement. He also mant was wired with a radio transmitter. consented premises. to a search of the He advised the defendant that he had a stolen microwave oven and television set The defendant was charged with two that he wanted to sell. The pur- defendant counts of theft by receiving. Section 18-4- chased the items price for a far below mar- (1978 8). Repl.Vol. C.R.S.1973 His first ket value. The informant and the defend- trial ended with a conviction on both ant also purchase discussed the guitar of a counts. A motion a new trial was and a number of other assertedly granted stolen incompetence based on origi- his items. Thereafter, The Denver police nal trial counsel. observed the the defend- transaction ant from a van which secured new counsel parked was and a motion to filed, suppress together across was the street with a series and recorded the conversa- tion other motions directed to the that was conduct of the transmitted over the radio. Denver and the admissibility The of evi- informant returned to the van and dence seized a result of the defendant’s turned the money from the sale of the arrest. microwave oven and the television set over police. The district court entered findings of fact, law, conclusions of and an order of At noon on day, the same the informant suppression, which declared that the arrest returned to Adam Loan to sell the defend- of the defendant was invalid because the ant guitar. By that time the defendant Denver acting outside of their had premises, left the and the transaction jurisdiction. The confession and evidence had postponed. meantime, to be In the by police during seized the subsequent Denver keeping who were suppressed search were as fruits of the un- premises surveillance, under per- saw a lawful arrest. The district court also ruled

son later identified as the defendant’s step- the use of an informant wired for son, load the microwave oven into a vehicle expectation sound violated the defendant’s away. drive police stopped The Amendment, privacy under the Fourth vehicle in Denver and recovered the oven. and, accordingly suppressed tape re- At approximately p. 2:00 m. on the same cordings provided of the transactions which day, the informant returned to Adam Loan receiving charges. a basis for the Under with guitar and some other items which the facts we find no violation he sold to the defendant at a price far of either the Fourth Amendment to the below again, market value. Once the infor- United or States Constitution Article mant was wired for sound and the transac- section 7 of the Colorado Constitution. tion was recorded and by observed the Den- court, In reversing again the trial police. ver relating address difficult issues to the au- As soon as the informant left premis- peace thority of a officer to make an arrest es, the Denver entered Adam Loan outside of the limits of his au- and arrested the Shortly defendant. there- 16-3-102, (1978 thority. Section C.R.S.1973 after, Adams law enforcement Repl.Vol. 8) provides: authorities arrived and took the defendant “(1) peace A may per- officer arrest a to the County jail. Adams son when: Immediately after his the defend- (a) commanding that He has a warrant arrested; ant rights was advised of his person under Miranda such be or (b) Any being crime has been or is suit and did not have a warrant for the by person presence; committed such in his Compare, People defendant’s arrest. or Schultz, Colo., 611 P.2d 977

(c) probable He has cause to believe 589 P.2d 945 197 Colo. that an offense was committed and has Nonetheless,

probable peace acting cause to believe that the officer offense person committed to be ar- outside the authority territorial limits of his rested.” does not have authority less to arrest than a person private who is a citizen. Section prosecution asserts that 16-3-201, (1978 Repl.Vol. 8), C.R.S.1973 (l)(b) was valid on the basis of subsection 16-3-102, provides: C.R.S.1973, section because the crime was committed in the presence of the “A peace may who is not a officer police. Denver C.R.S. when any another crime has (1978 Repl.Vol. 8), however, 1973 states that being been or is by committed the arrest- peace a officer may make an arrest outside presence ed in the the territorial limits of his authority for a making the arrest.” crime presence committed in his only when Bloom, 246, People In v. 195 Colo. 577 pursuit he is in fresh of an offender: (1978), P.2d 288 this Court relied on section any peace “When officer is in fresh uphold by 16-3-201 to an arrest an MEG pursuit any offender, alleged having a agent acting beyond territorial limits of warrant for his arrest or having knowl- his authority when a crime had been com- edge issued, that such warrant has been Bloom, presence. mitted in his In we stat- or, in warrant, the absence of an arrest private ed: “If power citizens have the to

when the offense was committed in the persons arrest who commit crimes in their presence officer’s or the officer has rea- grounds presence, officer, sonable certainly police a believe that the al- outside leged offender has committed a jurisdiction, criminal his territorial has the same offense, and the alleged offender crosses power.” Id. at 577 P.2d 288. Other a boundary marking line the territorial jurisdictions have reached a similar conclu- limit of authority, his peace such officer example, sion. For in Filipi, State v. 297 may pursue beyond him such boundary (Minn.1980), N.W.2d 275 the Minnesota Su- arrest, line and make the issue a sum- preme Court stated: mons complaint, or issue a notice of “The record furnishes no evidence that penalty assessment.” physically defendant was ever within the Arnold, See Charnes v. 198 Colo. 600 City Minneapolis, much less that he (1979) P.2d 64 for criteria in determining any committed crime city. within the what activity pur constitutes fresh Defendant was arrested for a crime com suit. entirely and, mitted outside city

The General Assembly, enacting in therefore, outside the bailiwick of the 16-3-106, C.R.S.1973, section intended to arresting officers. These Minneapolis po peace limit officers from exercising their licemen not pursuing suspect were a who powers arrest and their law enforcement jurisdiction was fleeing their or had es efforts, to the territorial limits of their au caped from their nor custody, they thority require and to peace that local offi acting jurisdictional in obedience to a au cers be advised participate in the extra Therefore, thority. they had no law enforcement activities of authority to arrest defendant outside peace other officers. jurisdiction. their Minn.Stat. 629.40 § also, (1978). Mastrian, v. 285 We See State conclude that the Denver 51, 54-55, did not have Minn. 171 N.W.2d 698-99 statutory authority, peace denied, arrest 90 defendant in Adams cert. because were not in pur- (1970). fresh 25 L.Ed.2d 662

217 “Nevertheless, we find the arrest law- Probable cause measures the con jurisdic- A ful. officer outside his stitutionality of an arrest by law enforce tion is not completely stripped IV; ment officers. U.S.Const Colo. amend. power to arrest. It has been stated: Fratus, People Const. Art. Sec. 7. 187 ‘Beyond bailiwick, his ordinarily own (1974). Colo. P.2d 392 528 In determin has only an officer of a powers ing probable exists, whether cause the test citizen, be, private may such as in these is whether facts available to reason the district where the is made. arrest ably officer cautious at moment ar Thus, if an by private arrest citizen rest warrant his belief that an has offense be existing would lawful under the cir- being been People or is committed. v. Nav cumstances, an away an officer ran, 483 P.2d In lawful, from own his bailiwick would be the Denver police observed and not. applied otherwise This rule has been recorded the defendant mer buying stolen to arrests by city police made officers separate two chandise on occasions. We municipali- outside confines of their ties, only conclude that there was not peace probable and also to of one operating state another.’ cause defendant’s for the but that Fisher, “E. Laws of receiving Arrest the crime commit actually § (footnotes (1967) omitted). subscribe We presence ted police. in the of the Denver Hubbard, rule. See Smith v. Compare, supra, where this 215, 224, Minn. 91 N.W.2d upheld suppression Court of evidence (1958).” Id. at 277-8. seized violation of officers’ Accord, People Marino, 657, Ill.App.3d v. 80 power to effect an arrest the terri outside 71, (1980); 36 Ill.Dec. 400 N.E.2d 491 Ste Lott, torial of their we authority. limits In State, 504, venson v. 287 Md. A.2d 413 1340 “Assuming probable that ex stated: cause (1980). Compare, People supra v. arrest, might police isted for the Denver (crime presence not committed in the of the a authority have had the to arrest without officer). arresting 16-3-102, warrant. C.R.S.1973.” police In this the Denver did Id. at n. 1. authorization, not statutory peace have as to effect the arrest outside the the arrest in case did Since limits of authority. their Sec against not offend constitutional restraints 16-3-106, tions 16-3-102 and C.R.S.1973. seizures, on to im unreasonable decline Likewise, because the Denver were police remedy pose exclusionary rule as a for the acting private citizens, not as they did not statutory the violation. United v. States statutory have authorization for the arrest 1244, Crews, 463, 63 445 U.S. 100 S.Ct. under section None C.R.S.1973. (1980); DeFillippo, Michigan L.Ed.2d 537 v. theless, police the Denver do not have less 31, 2627, 343 443 99 S.Ct. 61 L.Ed.2d U.S. power arrest to for a crime committed in Nonetheless, (1979). approve we do of not presence private their than a person. of the the actions Denver which Despite the fact Denver that the of their governing in violation the statutes police violated the governing statutes their offi authority to arrest. Law enforcement arrest, issue, to authority purposes the anoth cers not make excursions into should rule, of of application exclusionary the is to crime without jurisdiction er ferret out whether arrest was unconstitutional. enforce securing approval first of the law [exclusionary] prime purpose rule’s “[T]he or to jurisdiction, ment in that authorities is to deter future unlawful conduct in fresh when are not make an arrest thereby and effectuate of guarantee act in pursuit. the Fourth cases where the against Amendment unrea- In sonable searches and law, seizures.” courts willful of the disobedience supervisory to Calandra, have not hesitated use their 338, United States 414 U.S. 347, 613, See, (1974). g., 94 e. S.Ct. 38 L.Ed.2d 561 exclude evidence. power to

218 States, 332,

McNabb v. United 318 63 circumstances the officers’ conduct in effec- U.S. 608, (1943). also, tuating 87 L.Ed. 819 the arrest violated Article S.Ct. See Sec- 7, 727, tion of the Colorado Constitution. Be- Payner, United States U.S. (1980), cause the defendant’s confession as well S.Ct. 65 L.Ed.2d 468 n. 7. The closely upon the consent search followed so police may also civil liability suffer if the unconstitutional district rights constitutional of the arrested court both the properly suppressed confes- are violated. 42 U.S.C. 1983. Bivens v. § agree sion and the fruits of the search. I Agents, Unknown Six Named 403 U.S. with part majority opinion of the re- L.Ed.2d 619 Allen versing suppression of the defendant’s v. McCurry, 449 U.S. 101 S.Ct. informer, conversations with the 66 L.Ed.2d 308 This Court cannot since the defendant had no reasonable ex- sanction willful and recurrent violations of pectation pre-arrest in privacy these con- law, thus, future violations versations. statutes governing peace authority officers’ may trigger application arrest Although the court concedes the Denver exclusionary require rule and suppression of officers statutory authority had no to effec- evidence obtained the course of an extra- tuate the warrantless arrest of the defend- territorial arrest. ant, upholds nevertheless it the arrest be- cause, view, peace in its “a officer outside The right privacy enunciated in the territorial his authority limits of does States, Katz v. United 389 U.S. 88 S.Ct. authority not have less than 507, 19 L.Ed.2d 576 does apply not person who is citizen.” private I find this the recording of the defendant’s conversa “private unacceptable. citizen” rationale It tions with the informant. The defendant legislative frustrates scheme circum- had no expectation reasonable privacy scribing powers carrying out his illicit transactions with the beyond the territorial boundaries of their White, informant. United States v. authority pro tanto undercuts the con- U.S. 91 S.Ct. 28 L.Ed.2d 453 protection against stitutional the unreason- (1971); Lopez States, v. United able seizure of guaranteed one’s as 427, 83 S.Ct. 10 L.Ed.2d 462 II, by Article of the Colorado States, On Lee v. United 343 72 U.S. Constitution. (1952). 96 L.Ed. 1270 The Assembly, by granting General stat- we Accordingly, reverse the ruling of the utory powers private persons, of arrest district suppressing court the evidence and 16-3-201, (1978 section Repl.Vol. C.R.S.1973 statements-obtained as incidents of the de- 8), did thereby grant not intend to munici- arrest, fendant’s as well recording as the of pal officers statewide commissions to cross the transactions between the defendant and clearly governmental defined boundaries informant, the and remand to the district beyond order to effectuate arrests the terri- court for further proceedings consistent torial authority. limits of their If such with the directions opin- contained in this intent, were legislative pur- the the “fresh ion. provisions 16-3-106, suit” of section C.R.S. (1978 8), 1973 Repl.Vol. utterly would be DUBOFSKY, JJ., QUINN, LOHR and superfluous. unessential, Far from these dissent. provisions help preserve political the au- QUINN, Justice, dissenting: tonomy municipal of county and subdivi- of government by limiting sions the extra- I respectfully dissent part from that authority of municipal police of- opinion the which reverses the suppression carefully exigencies ficers to the defined of the defendant’s confession and the items therein described. seized place from his pursuant business to the consent search conducted circumscription immediate- This reasonable of arrest ly after his arrest. Under totality powers signifi- is not without constitutional office, County both of whom security of one’s from Sheriff’s canee to the unreasonable searches and seizures. Colo. were authorized to execute warrants Conceding that a Const. Art. Sec. 7. County. officers with au- Weld Since governmental a offi- statutory by violation thority County to arrest in Weld were per cer not rise se to the level of need arrest, present during the defendant’s significance purposes constitutional perceive can reason to no hold rule, exclusionary prior our case law Colo., invalid.” 611 P.2d at 978-79. unjustified indicates that exercise of Bloom, People v. 195 Colo. 577 P.2d powers by extraterritorial arrest (1978), upon by majority relied implicate officer does inter- constitutional arrest, clearly distinguishable sustain the is ests. 589 P.2d Bloom, from the facts of this case. In There, principle. illustrates this making Littleton officer the arrest in Ridge depart- officers of the Wheat Denver member of an L.E.A.A. fund- was a burglary Ridge ment learned of a in Wheat Group Enforcement which Metropolitan ed and, having without obtained an arrest by agreement the written had been formed having warrant or enlisted the assistance of municipalities purpose for the of several police, Denver crossed over into Denver sev- drug problem in Denver. combatting the burglary eral hours after the and arrested opin- Although not mentioned in the Bloom halfway defendants at a house where ion, assume that it is reasonable to they upholding resided. In the trial court’s specially Littleton officer was commissioned suppression of the evidence seized incident respective officer in the munici- to the this court stated: parties agree- to the palities which were “The district court ruled that since not, is clear ment. But even if he were it pursuit, not in fresh the officers opinion effecting the officer from the that authority lacked to arrest outside the ter- po- Denver the arrest was assisted two authority. ritorial limits of their Sections of whom had lawful au- lice both 201 and C.R.S.1973 thority to make the arrest. Bloom, People v. 195 Colo. 577 P.2d in this case had If the Denver officers with an extraterritorial been confronted agree “We with the trial court calling for an immediate emergency pursuit. officers were not in fresh The consti- would have been no response, there alleged officers had received notice of the crossing into to their impediment tutional burglary approximately at p.m. 12:30 and, necessary, making if an Adams p.m. Between 12:30 and 6:00 the officers here, existed emergency arrest. No such investigated By the crime. 2:30 or 3:00 ar- p.m. investigation Nor did the extraterritorial had focused on the however. ruled, appellees. good court or district rest result from an inadvertent agree, that there was time to have officers part on the of the faith mistake obtained an arrest warrant or to have the legality of their conduct. On about the enlisted the assistance of Denver acting in the at all times contrary arresting appellees before the at 6:00 they were capacities, knew their official Colo, p.m.” 197 589 P.2d at 947. at of their boundaries exceeding the territorial Although arrest. authority making the Likewise, Schultz, Colo., v. place investigation took pre-arrest their P.2d 977 where Larimer m., no p. they made from 9:00 a. m. to 2:00 sheriff’s officers an warrant obtained officers in assistance of County, and in Weld effort to solicit the arrested the defendant activity on basis of where the criminal upheld County, this court the Adams an arrest very noticeably the factors which are lack- or to obtain taking place, ing knowing in the instant case: Their Crim.P. 4. warrant under boundaries the territorial disregard of arresting

“In to with their failure authority, coupled the aid their obtained a warrant and enlisted readi- simple procedures Weld themselves of Greeley police of both the and the avail ly legitimizing available for an extraterrito- arrest, place

rial their actions within the zone

of constitutional unreasonableness under

Article of the Colorado Consti-

tution. both the Since confession and the search Prosecutor, Donnelly, Disciplinary Linda immediately

followed upon illegal ar- Denver, complainant. for rest, uphold I would the district court’s suppression of the defendant’s confession Morrato, Denver, James J. attorney- objects and the seized in the consent search. respondent. See, Illinois, g., e. Brown v. (1975); L.Ed.2d 416 McCall v. ERICKSON, Justice. Colo., People, (1981); People 623 P.2d 397 The Grievance Committee concluded this Lowe, Colo., 616 P.2d 118 People v. disciplinary proceeding by presenting us Moreno, 491 P.2d 575 stipulation with a and facts recommenda- discipline tions for respondent, Law- I am authorized say to that DUBOFSKY rence Rotenberg. C. The Grievance Com- LOHR, JJ., join me in this dissent. mittee has accept recommended that we

stipulation respondent and that the be sus- pended for year. approving one In stipulation, respondent has acknowl- edged that he will required, be if he should reinstated, seek to be undergo hearing to to practice establish his fitness to law and prove that he has been rehabilitated. The PEOPLE of the State of Respondent Rule C.R.C.P. has also Colorado, Complainant, agreed pay proceeding. costs of this approve stipulation We rec- ommendation of the Grievance Committee ROTENBERG, Lawrence C. which has agreed been respon- Attorney-Respondent. Respondent dent. has specifically agreed No. 81SA412. the stipulation discipline and the im- posed will reported be to the National Disci- Supreme Colorado, Court of plinary Data Bank. En Banc. Lawrence C. Rotenberg was admitted to Oct. 1981. the bar of this Court on January 1975. As a result of handling his of one transac- tion, he received a letter of admonition on 23, 1981, February for violation of DR 6- 101(A)(3) (neglect legal matter), of a DR 7-101(A)(3) (prejudice client), to a and DR 1-102(A)(4) (misrepresentation). Three disciplinary complaints are the sub- ject stipulation which is before us. complaint The first reviewed in Blalock, P.2d 406 good purpose No would be served by repeating what reversing we said in Blalock’s respon- conviction because of the dent’s incompetence as defense counsel.

Case Details

Case Name: People v. Wolf

Court Name: Supreme Court of Colorado

Date Published: Oct 19, 1981

Citation: 635 P.2d 213

Docket Number: 81SA56

Court Abbreviation: Colo.