People v. Bakari

• Decision Date: 02 October 1989
• Docket Number: No. 89SA112,89SA112
• Citation: 780 P.2d 1089
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Abdu Sadiki BAKARI a/k/a Roger Palmer, III, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1089

780 P.2d 1089

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Abdu Sadiki BAKARI a/k/a Roger Palmer, III, Defendant-Appellee.

No. 89SA112.

Supreme Court of Colorado En Banc.

Oct. 2, 1989.

James F. Smith, Dist. Atty., and Steven L. Bernard, Chief Trial Deputy Brighton, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, and Daniel J. Albregts, Deputy State Public Defender, Brighton, for defendant-appellee.

Justice VOLLACK delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution asks that we reverse the suppression order entered by the Adams County District Court after the prosecution conceded that it was not ready to proceed at the hearing on the motion to suppress. We reverse.

I.

On October 9, 1988, Ismail Al-Rubaii was working at his gas station on East Colfax Avenue early in the morning when a man entered the store and demanded all of the station's money. When the robber entered the store he was wearing men's blue underwear on his face and a baseball cap on top of his head. He had a black coat draped over his arm and it appeared that he was carrying a gun. Al-Rubaii struck the robber and the two men engaged in a struggle. During the struggle Al-Rubaii was able to get his gun and fire a warning shot. The robber ran from the gas station and was later identified as the defendant, Abdu Sadiki Bakari (Bakari or the defendant). Bakari was charged by information with robbery and third-degree assault. After preliminary hearing the case was bound over for trial.

Defense counsel filed two suppression motions which are the subject of this appeal. One of defendant's motions sought to suppress money found on the defendant when he was contacted by police, and a blue cap and blue underwear found on the gas station premises. Defendant's other motion asked the district court to suppress statements made by the defendant.

A motions hearing was scheduled for February 10, 1989. On February 8, the February 10 hearing was vacated at the request of deputy district attorney Farrell and rescheduled for March 10, 1989. On March 10, deputy district attorney Towey, who had been recently assigned the case, appeared on behalf of the state and asked the court to continue the motions hearing.

Towey explained to the court his reasons for requesting a continuance. Due to personnel changes in the district attorney's office, subpoenas had not been issued for the hearing. When this oversight was discovered Towey attempted to contact the detective and the three officers required for the hearing, at work and at their homes. Towey was unable to contact the officers in time for them to appear at the hearing, so he had no witnesses.

Because the scheduled trial date was six weeks away, the prosecutor asked for a short continuance of the motions hearing that would not interfere with the scheduled trial date. In the alternative, Towey advised the court that if rescheduling the motions hearing in that division would interfere with the trial date, a judge in another division had already agreed to hold the motions hearing on either March 17 or March 24.

The court rejected these suggestions and denied the motion to continue. The court held that the reason presented was "not a legitimate reason to continue" and that there was "no good cause" why the motions hearing should not be conducted. When the prosecutor conceded that he was not prepared to proceed because he did not have any witnesses, the judge granted both of the defendant's motions to suppress. The People appeal this ruling pursuant to C.A.R. 4.1.

II.

A. Motion to Suppress

The prosecutor conceded that after the district court granted the motions to suppress there was "no evidence left." We have previously acknowledged that in some cases, "given the nature of the prosecution's evidence," granting a motion to suppress is "tantamount to dismissing the charges against the defendant." People v. Grady, 755 P.2d 1211, 1218 (Colo.1988). In Grady, we adopted the analytical view that because such an order amounts to dismissal, " '[a] trial judge's authority to dismiss a criminal charge on his own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited.' " Id. (quoting People v. Carino, 193 Colo. 412, 414, 566 P.2d 1061, 1063 (1977)).

Dismissal of charges is recognized as " 'a drastic remedy to be reserved for situations where no other sanction will attain the proper result.' " Id. (quoting People v. Holloway, 649 P.2d 318, 320 (Colo.1982). In Grady we acknowledged that the prosecutor's conduct, in failing to file an answer brief, "was not a model of prosecutorial assistance to the court." Despite that, we concluded that the rules of criminal procedure did not permit the granting of the suppression motion in Grady. Id. The same analysis is appropriate here. The question then becomes whether, because this order was "tantamount to dismissing the charges," the judge was acting within his narrow authority to do so. To make this determination we must look to the circumstances of the motion to continue.

The district court's order granting the defendant's suppression motions did not serve the purpose of the exclusionary rule. The fourth amendment exclusionary rule "is designed to deter police misconduct." United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); see also Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1973) ("the exclusionary rule's 'prime purpose is to deter future unlawful police misconduct' "); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974) (" 'The rule is calculated to prevent, not to repair. Its purpose is to deter.' "). In Tucker, the court held:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.

417 U.S. at 447, 94 S.Ct. at 2365. In United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1974), the court stated that

[t]he wrong condemned by the [Fourth] Amendment is fully accomplished by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to cure the invasion of the defendant's rights which he has already suffered. The rule thus operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.

The district court did not reach the merits of the defendant's arguments for suppression. The court granted the motions to suppress because the district attorney was not able to proceed at the suppression hearing. Illegal police searches and district attorney preparedness are unrelated. Because the district court's suppression order could not have provided a deterrent against illegal police searches it was not authorized by the exclusionary rule.

The district court acted outside of its limited authority to dismiss the charges against the defendant. In prior cases we have limited the authority of trial courts to dismiss criminal charges. In People v. Carino, 193 Colo. 412, 566 P.2d 1061 (1977), we reversed a district court order dismissing misdemeanor charges against the defendant for possession of marijuana. The district court dismissed the charges because it concluded that the defendant's probation reports did not state facts upon which the defendants could be convicted. Id., 193 Colo. at 414, 566 P.2d at 1062-63. After noting that "[a] trial judge's authority to dismiss a criminal charge on his own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited," we held that in dismissing the charges the district court acted outside of its authority. Id., 193 Colo. at 414, 566 P.2d at 1063. In People v. Dennis, 164 Colo. 163, 433 P.2d 339 (1967), we reversed a district court order dismissing a larceny charge against the defendant. The district court dismissed the charge because the complaining witness asked the court to drop the charges and stated his preference not to testify against the defendant. Id., 164 Colo. at 165, 433 P.2d at 340. We held that the district court acted outside its authority because "[t]he complaining witness, or the victim of the crime, has no control over the case, since he is not a party to it." Id., 164 Colo. at 166, 433 P.2d at 340.

Here, as in Grady, 755 P.2d at 1218, the district court's order granting the defendant's suppression motions was "tantamount to dismissing the charges against the defendant." The district court's dismissal of the charges did not serve the purpose of the exclusionary rule, and this was not a situation in which no other sanction would "attain the proper result." Id. By granting the defendant's motions without addressing their merit the district court acted outside its authority to dismiss the charges against the defendant.

B. Motion to Continue

"A motion for continuance is addressed to the sound discretion of the trial court, and the trial court's ruling will not be disturbed in the absence of an abuse of discretion." People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). We noted in Hampton that "[t]here are no mechanical tests for determining whether the denial of a continuance constitutes an abuse of discretion." Id. The answer as to whether a trial court has abused its discretion " 'must be found in the circumstances present in every case.' " Id., 758 P.2d at 1353-54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).

The ABA Standards for Criminal Justice--Speedy Trial provide that a court "[s]...