People v. Diaz, 89SA392

• Decision Date: 16 July 1990
• Docket Number: No. 89SA392,89SA392
• Citation: 793 P.2d 1181
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David R. DIAZ, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1181

793 P.2d 1181

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David R. DIAZ, Defendant-Appellee.

No. 89SA392.

Supreme Court of Colorado En Banc.

July 16, 1990.

G.F. Sandstrom, Dist. Atty., Patrick J. Delaney, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

Cecil L. Turner, Turner & Martin, P.C., Pueblo, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The district attorney brings this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1989 Supp.), to challenge an order from the Pueblo County District Court suppressing certain tangible evidence and statements. We affirm the district court's suppression order.

I.

The defendant, David Diaz, was charged with the unlawful possession of cocaine, a schedule II controlled substance in violation of section 18-18-105(1)(a) and (2)(a), 8B C.R.S. (1986). Diaz filed a motion to suppress all evidence found and statements made during the course of his search and arrest on December 19, 1988. At the suppression hearing, the trial court heard testimony from Diaz; the arresting police officer, Officer Ruggieri; and a witness, Gregg Smith, who owned the Green Light Tavern where the arrest occurred. The trial court granted the motion to suppress after it made extensive findings which we will discuss below.

The parties stipulated that the arrest and search of Diaz were made without a warrant. Diaz's arrest on December 19 was based on information from three individuals that Diaz was involved in trafficking cocaine. None of these persons was identified or testified at the suppression hearing and all three were treated as confidential informants. The first informant was an individual who told Officer Ruggieri in April 1986 that Diaz was trafficking cocaine. The second informant contacted Officer Ruggieri approximately three weeks prior to the arrest and related that Diaz was selling certain quantities of cocaine out of the Green Light Tavern during particular hours. This informant described Diaz and claimed that he had seen Diaz selling cocaine on at least two occasions. On December 14, 1988, a fellow officer, Detective Lancendorfer, received information from a third confidential informant who stated that a male named "Dave" was selling certain quantities of cocaine inside the Green Light Tavern during the week between certain hours.

On December 19, 1988, at approximately 6:00 p.m., Officer Ruggieri was in the vicinity of the Green Light Tavern and observed Diaz walking toward and entering the Green Light Tavern. Officer Ruggieri personally knew of Diaz and had talked with him on an earlier occasion unrelated to this case. Officer Ruggieri contacted two uniformed officers who accompanied him into the Green Light Tavern, and they approached Diaz who was standing at the west end of the bar. Officer Ruggieri asked Diaz his name and asked if he could talk with him behind the bar. Officer Ruggieri, Diaz, and the two accompanying officers then stepped into an alcove behind the bar.

There is a dispute concerning the events which followed. Officer Ruggieri testified that he asked Diaz if he could look into his pockets for drugs and he was told to "go ahead" at which time Diaz raised his arms. Officer Ruggieri then reached into Diaz's front pockets and took out two paperfolds containing cocaine. Officer Ruggieri also searched Diaz's other pockets and found a plastic bag commonly used to store large quantities of cocaine, cards with names and numbers of drug related figures, as well as $272. Following the search, Officer Ruggieri verbally advised Diaz of his Miranda rights ¹ and Diaz asked him who had turned him in to the police.

Diaz, on the other hand, testified that he was asked by Officer Ruggieri to step behind the bar at which time he was handcuffed and searched. Gregg Smith, the owner of the Green Light Tavern, testified that he was downstairs at the time of the initial contact by the police but as he came upstairs, he saw Officer Ruggieri facing Diaz who was then handcuffed and that while Diaz was handcuffed, Officer Ruggieri was in the process of searching Diaz's pockets.

Based on the seizure of the cocaine and other items from Diaz's pockets, Officer Ruggieri arrested Diaz. The trial court granted the defendant's motion to suppress evidence and statements. The court concluded that the prosecution failed to establish a constitutionally permissible investigatory stop, and that based on the totality of the circumstances, there was not probable cause to arrest Diaz on December 19, 1988. The issue on appeal is whether or not the police officers had probable cause to arrest Diaz on December 19, 1988 based on the information provided by the three separate informants. Alternatively, the prosecution argues that Diaz consented to the search rendering the search and seizure of contraband valid.

II.

The district attorney contends that, when Officer Ruggieri entered the Green Light Tavern, he had sufficient information to establish probable cause to arrest Diaz for prior sales of cocaine. He argues that each of the three informants provided details which coincided with and corroborated that given by the other informants, thus ensuring reliability. As such, the district attorney claims that the search in question was a valid search incident to arrest. See e.g. People v. Tufts, 717 P.2d 485 (Colo.1986) (if probable cause to arrest exists, then search incident to arrest is valid).

The burden of proof is on the prosecution to establish the existence of probable cause to support a warrantless arrest. Tufts, 717 P.2d 485. Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to support a reasonable belief that a crime has been or is being committed by the person arrested. Tufts, 717 P.2d at 491; Banks v. People, 696 P.2d 293 (Colo.1985); § 16-3-102(1), 8A C.R.S. (1986). In determining whether there is probable cause to arrest, the totality of facts and circumstances known to the officer at the time of the arrest must be considered. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (rejecting the two-prong test of Aguilar- Spinelli ); People v. Quintana, 785 P.2d 934 (Colo.1990); People v. Arellano, 791 P.2d 1135 (Colo.1990); People v. Pannebaker, 714 P.2d 904, 907 (Colo.1986). ²

The totality-of-circumstances analysis requires a court to consider whether the facts available to a reasonably cautious officer at the moment of arrest warranted the belief that an offense had been or was being committed by the person arrested. People v. Hazelhurst, 662 P.2d 1081, 1086 (Colo.1983); see also Tufts, 717 P.2d at 491. The totality-of-circumstances test places particular importance on the value of corroboration of details of an informant's tip by independent police work. Gates, 462 U.S. at 241-46, 103 S.Ct. at 2333-36; see also People v. Grady, 755 P.2d 1211 (Colo.1988). An informant's reliability, veracity, and basis of knowledge are still important factors to be considered in determining whether probable cause exists. Grady at 1215; People v. Contreras, 780 P.2d 552 (Colo.1989). Weakness in one area may be compensated by strength in another, "or some other indicia of reliability." Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Corroboration of an anonymous tip with facts learned by an investigating officer is sufficient for "the practical, common-sense judgment called for in making a probable-cause determination." Id., 462 U.S. at 244, 103 S.Ct. at 2335.

III.

We now turn to the facts of this case, as found by the trial court, to determine whether the trial court erred in determining that Officer Ruggieri lacked probable cause to make a warrantless arrest of Diaz on December 19, 1988. The prosecution bases its probable cause argument on the information provided by three informants. The first source was an individual who told Officer Ruggieri in April of 1986 that Diaz was trafficking in cocaine. This informant provided no descriptive details or specific accounts, and Officer Ruggieri gave no information concerning the first informant's reliability or basis for his or her knowledge. We agree with the trial court in its evaluation that the information provided to Officer Ruggieri by the first confidential informant some two years prior to December 1988 was too remote in time and is of no benefit in determining whether or not Diaz had committed or was in the process of committing a crime. See Tufts, 717 P.2d 491.

As to the second confidential informant, Officer Ruggieri testified that he talked to the informant in the latter part of November 1988, when the informant said that Diaz was selling cocaine at the Green Light Tavern during "happy hour." This informant told Ruggieri that Diaz usually came to the tavern at about 4:30 p.m. and left the tavern by 7:00 p.m. during weekdays and sat at the west end of the bar. He further told Officer Ruggieri that Diaz would carry eight to twelve paperfolds containing one-quarter grams of cocaine located in his front pants pocket. The informant described Diaz as being six feet tall, clean looking, and "more white than Spanish" in appearance. He said that Diaz lived at West 11th and Conley Streets in a house next to an alley. The confidential informant indicated that he had seen Diaz on two occasions when Diaz was in possession of cocaine and related that it was for sale, the last occasion being on December 14, 1988. There were other occasions when Diaz was seen in the Green Light Tavern but apparently was not involved in the selling of cocaine. In addition, the second informant rode with Officer Ruggieri and pointed out Diaz's address. He also mentioned that Diaz did not own a car but noted that a car parked in the driveway was owned by Diaz's girlfriend.

The defense strongly attacked the credibility of Officer Ruggieri by pointing out various inconsistencies in his testimony. The most...