People v. Elagnaf, No. 89CA2117

• Docket Nº: No. 89CA2117
• Citation: 829 P.2d 484
• Case Date: November 07, 1991
• Court: Court of Appeals of Colorado

Page 484

829 P.2d 484 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jamal Salem ELAGNAF, Defendant-Appellant. No. 89CA2117. Colorado Court of Appeals,
Div. I. Nov. 7, 1991.
Rehearing Denied Dec. 5, 1991.
Certiorari Denied May 18, 1992.

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Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Harry A. Tucker, Jr., Rennard E. Hailey, Grand Junction, for defendant-appellant.

Opinion by Judge PIERCE.

Defendant, Jamal Salem Elagnaf, appeals a judgment of conviction entered on a jury verdict finding him guilty of possession of cocaine. We affirm.

In June of 1988, defendant was arrested for an immigration violation and was awaiting deportation. At that time, the Grand Junction Police Department was conducting an ongoing investigation of an individual named Joseph Starr who was suspected of running a narcotics distribution organization. An officer involved in this investigation offered to help defendant remain in this country in exchange for information on Starr's drug trafficking activities. Defendant agreed to this arrangement and provided the officer with information about Starr on June 29, 1988, and on two other occasions.

Based on information from several informants, including the defendant, the police learned that persons interested in purchasing cocaine would contact Starr through a pager, identify themselves by code number, leave a return phone number, and await a return phone call to arrange for the transaction. This information was used to obtain a court order authorizing a wire tap of Starr's pager.

On May 14, 1989, when defendant was no longer acting as an informant, the police intercepted a call to Starr's pager. An officer was dispatched to the location from which the call had been made, but before reaching there he saw Starr's van, followed closely by a blue car, driving away from the area. The officer followed the van and the car until they stopped and saw defendant leave the passenger compartment of the van and enter the car. The officer continued to follow the car and was subsequently instructed by another officer to stop the car and search the defendant for cocaine.

After the car was stopped and defendant was briefly questioned, he attempted to flee. He was apprehended, and officers found a bag of cocaine in his pants.

Defendant was then taken to the police administration building for questioning. The officer who conducted the interview testified that he did not verbally inform the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but rather gave defendant a written advisement form and obtained assurances from defendant that he understood the information on the form.

Because of what the officer described as a combative attitude, defendant remained handcuffed during this interview. Hence, he was unable to sign the advisement form acknowledging his understanding of the rights described. The following day defendant was again interviewed. He again was given a written advisement form before the interview and signed that form in front of two officers. During both interviews, defendant admitted purchasing cocaine from Starr.

The defendant was released from jail later that day and again agreed to work as

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an informant for the police. He attempted to learn more about Starr's drug operation and on May 29, 1989, telephoned a police officer to describe a deal he was trying to arrange with Starr involving the trade of a vehicle for cocaine. During that phone conversation, the defendant made statements further incriminating himself.

I.

Defendant first contends that the statements he made to the police on June 29, 1988, with respect to his previous cocaine purchases from Starr were made while he was in custody. He argues, therefore, that because the interview was not preceded by a Miranda advisement, the trial court erred in refusing to order the suppression of the statements at his trial. We disagree.

An accused must be advised of the privilege against self-incrimination and the right to counsel as a prerequisite to the prosecution's use of any statement made by him as a result of custodial interrogation. Miranda v. Arizona, supra. However, not all police questioning falls within the protection of Miranda.

The record shows that the challenged statements were properly admitted at defendant's trial. Although there is no question that, on June 29, 1988, defendant was in custody as the result of an immigration violation, we conclude that he was not interrogated on that date.

The officers who interviewed him and suggested he cooperate in the drug investigation told...