People in Interest of M.N.

• Decision Date: 12 September 1988
• Docket Number: No. 87SA240,87SA240
• Citation: 761 P.2d 1124
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellant, In the Interest of M.N., a Child, And Concerning The District Court Within and for the Twenty-Second Judicial District of the State of Colorado, and the Honorable Grace S. Merlo, Judge Thereof, and D.N., and I.N., Respondents-Appellees.
• Court: Colorado Supreme Court

Page 1124

761 P.2d 1124

18 A.L.R.5th 913

The PEOPLE of the State of Colorado, Petitioner-Appellant In the Interest of M.N., a Child And Concerning The District Court Within and for the Twenty-Second Judicial District of the State of Colorado and the Honorable Grace S. Merlo, Judge Thereof, and D.N and I.N., Respondents-Appellees.

No. 87SA240.

Supreme Court of Colorado,

En Banc.

Sept. 12, 1988.

Rehearing Denied Oct. 11, 1988.

Dean J. Johnson, Dist. Atty., Karen Winchester Davis, Deputy Dist. Atty., Cortez, for petitioner-appellant.

Bob D. Slough, Cortez, for M.N.

VOLLACK, Justice.

The People appeal from the district court's dismissal of three delinquency petitions filed against the minor respondent-appellee M.N. in the Twenty-Second Judicial District. The petitions were based in part on activities during an ongoing narcotics investigation at Cortez High School in Cortez, Colorado.

I.

The findings of fact made by the district court in its order and the testimony at the hearing on the motion to dismiss establish the following sequence of events. In September 1986 Deputy Sheriff Louis Dabdoub was working as an undercover drug enforcement officer at Montezuma-Cortez High School. At the high school, Dabdoub met a student named M.N. On September 17, 1986, Dabdoub was driving down Main Street in Cortez when he was flagged down by M.N. and his friend E.M. Dabdoub told M.N. that he was "looking for marijuana." M.N. said that if Dabdoub had thirty dollars, he knew where Dabdoub could buy marijuana. When the deputy responded that he was ready to buy marijuana, M.N. got into Dabdoub's car and directed him to the Circle K Store in Cortez. The deputy drove M.N. and E.M. to the Circle K and gave M.N. thirty dollars with which to buy marijuana for him.

M.N. went inside the store and returned with an individual named David Echols. M.N. told Dabdoub that thirty dollars' worth of marijuana could be purchased from Echols. M.N. made the exchange with Echols and delivered the marijuana to the undercover deputy. When he drove M.N. home, Dabdoub gave some of the marijuana he had just purchased to M.N. ¹

One week later, the deputy telephoned the house where M.N. lived and asked to speak with him. When M.N. answered the phone, the deputy asked M.N. to go to Southwest Coach to steal tires and rims for him. M.N. indicated that he would not go if Dabdoub didn't drive, so Dabdoub picked up M.N. and his friend, E.M. at M.N.'s house. M.N. and E.M. brought a jack and tire iron with them, and Dabdoub drove them to Southwest Coach. Dabdoub waited while the two unsuccessfully attempted to remove tires from various vehicles. M.N. and E.M. also broke two car windows in their unsuccessful attempts to steal a car stereo. When M.N. and E.M. realized that their lug wrench did not fit and told Dabdoub "Let's just go" because we have "the wrong kind of lug wrench," Dabdoub responded, "No, go out and look at them and see if you can find some more tires." M.N. and E.M. returned, successfully removed three tires from one vehicle, and put the tires in Dabdoub's car. The three were stopped by police officers two blocks from Southwest Coach. Dabdoub was arrested along with M.N. and E.M., so the juveniles were not yet aware that Dabdoub was a law enforcement officer.

Two days later, Dabdoub approached M.N. at an arcade in Cortez and asked M.N. to help him buy more marijuana. M.N. said he could not because he had to go home; Dabdoub persisted and persuaded M.N. to help him. Dabdoub drove M.N. first to a house and then to an apartment building. M.N. knew a woman who lived in the building, but said he did not know which apartment was hers. Dabdoub gave M.N. thirty dollars and instructed him to follow a man who was walking toward an apartment at the time. M.N. followed the man, arrived at the right apartment, and spent the thirty dollars on marijuana. M.N. gave the marijuana to Dabdoub, who in turn permitted M.N. to take some of the marijuana for himself.

Three petitions in delinquency were filed concerning M.N. Counsel for M.N. filed a Motion to Suppress and Dismiss, alleging that M.N. was denied due process and equal protection of the law under the United States and Colorado Constitutions. M.N. further asserted that the deputy sheriff had violated section 19-3-119(3), 8B C.R.S. (1986) (adult aiding and abetting a minor), and section 18-18-106(8)(b)(I), 8B C.R.S. (1986) (distributing, dispensing, or selling marijuana, or conspiring to do so).

At the hearing on the motion to dismiss, the district court agreed with certain aspects of M.N.'s argument and held that the evidence, which was unrebutted at the motions hearing to dismiss because Dabdoub did not give his full testimony, required the following result:

The evidence stands unrebutted by the People and shows that said deputy sheriff did induce, aid or encourage M.N., a child, to violate the law in each of the instances herein. Now the child is being prosecuted for alleged violations of the law based upon evidence that would not have happened and would not exist but for said deputy's illegal and unlawful acts in violation of [section] 19-3-119(3), C.R.S. These charges and the evidence in support thereof are tainted as fruit of the poisonous tree. Children have special laws to protect them from adults including law enforcement officers. The deputy's conduct is outrageous and violates fundamental standards of due process under Art. II, Section 25, Colorado Constitution, and the Fourteenth Amendment to the United States Constitution.

(Emphasis added). The petitions were dismissed.

The People appealed the district court's dismissal order to this court, asking that we reverse and remand the case for reinstatement of the petitions in delinquency.

II.

The district court based the dismissal order on its factual findings that Dabdoub had engaged in outrageous conduct, ruling that the deputy sheriff's conduct was so outrageous as to deprive M.N. of due process of law, requiring dismissal of the petitions. The court also held that the deputy was guilty of aiding and abetting a minor in violation of section 19-3-119(3), 8B C.R.S. (1986), and that any evidence obtained was therefore inadmissible.

A.

The United States Supreme Court has recognized the possibility that under certain circumstances, the conduct of law enforcement agents may be so outrageous as to violate a defendant's constitutional right to due process of law. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The Court held:

[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, ... The law enforcement conduct here stops far short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment.

411 U.S. at 431-32, 93 S.Ct. at 1643 (citation omitted) (quoting Kinsella v. United States, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960)). The law enforcement conduct at issue in Russell was the government agent's providing to Russell "a legal drug which the defendants demonstrably could have obtained from other sources besides the Government." Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976).

The Court applied Russell three years later in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), when it addressed Hampton's assertion of outrageous governmental conduct as a defense. In Hampton, a government informant "allegedly supplied to petitioner [a drug that] both was illegal and constituted the corpus delicti for the sale of which the petitioner was convicted. The Government obviously played a more significant role in enabling petitioner to sell contraband in this case than it did in Russell," but this role still did not rise to the level of outrageous governmental conduct. Hampton, 425 U.S. at 489, 96 S.Ct. at 1650. As a result, the Court explained that the defendant's remedy "lies solely in the defense of entrapment."

Colorado recognized the due process claim of outrageous governmental conduct in Bailey v. People, 630 P.2d 1062 (Colo. 1981). In Bailey, the defendant raised both the statutory entrapment defense and the due process defense "that the conduct of the C.B.I. agents in this case was so outrageous that it deprived them of due process of law." Id. at 1068. We rejected the due process argument as applied to the conduct of the C.B.I. agents, but noted with approval the following language in Hampton: " '[N]o matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case when the Government is able to prove predisposition.' " Id. at 1068 (quoting Hampton, 425 U.S. at 495, 96 S.Ct. at 1653 (Powell, J., concurring)); see People v. Vandiver, 191 Colo. 263, 268, 552 P.2d 6, 9 (1976) ("Absent outrageous conduct by the officers violating fundamental standards of due process, the focus remains on the defendant" rather than on the government agent's acts.); see also People v. Morley, 725 P.2d 510, 515 (Colo. 1986) (In a disciplinary proceeding against an attorney, "the undercover operation did not reach the level of outrageous or bad faith conduct necessary to support the sanction of dismissal or suppression.").

A number of federal courts have acknowledged this defense. ² In United States v. Cantwell, 806 F.2d 1463 (10th Cir.1986), the Tenth Circuit Court of Appeals reviewed evidence that a government agent had approached the defendant with the idea of engaging in counterfeiting, but concluded that the evidence "in no way demonstrate[d] a due process violation." Id. at 1469 n. 4.

In United States v. Salazar, 720 F.2d 1482 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985), the defendant...