People v. Foster, 89SA293

• Decision Date: 19 March 1990
• Docket Number: No. 89SA293,89SA293
• Citation: 788 P.2d 825
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Jay FOSTER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 825

788 P.2d 825

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Jay FOSTER, Defendant-Appellee.

No. 89SA293.

Supreme Court of Colorado,

En Banc.

March 19, 1990.

Stephen K. ErkenBrack, Dist. Atty., and Frank J. Daniels, Chief Deputy Dist. Atty., Grand Junction, for plaintiff-appellant.

Robb, Skinner, Achziger & Nugent, Edward J. Nugent, Grand Junction, for defendant-appellee.

Chief Justice QUINN delivered the Opinion of the Court.

The People in this interlocutory appeal challenge the district court's suppression of cocaine seized from the defendant, Robert Jay Foster, during a search of his person at the Mesa County Jail following his warrantless arrest for theft of an all-terrain vehicle (hereinafter referred to as "motorcycle"). The district court suppressed the evidence because the prosecution failed to establish probable cause for the defendant's arrest. We affirm the suppression ruling.

The defendant is presently charged in the district court of Mesa County in a two-count information with possession of, and possession with intent to distribute, a Schedule II controlled substance, namely cocaine. The charges stem from the seizure of two bindles of cocaine taken from the defendant's wallet and front pocket during routine booking procedures at the county jail following the defendant's arrest on December 30, 1988. After entering a not guilty plea, the defendant filed a motion to suppress the cocaine, claiming that it was seized as a result of an arrest unsupported by probable cause.

The following facts were established at the hearing on the defendant's suppression motion. On December 30, 1988, at approximately 7:30 p.m., Martin Martinez was driving a 1981 Ford pickup truck, in which the defendant was riding as a passenger, and stopped for a red traffic signal at an intersection in Mesa County, Colorado. Colorado State Patrolman Carey Cox was at the same intersection and observed that the Ford pickup truck had a cracked windshield and did not have a light to illuminate the rear license plate. The officer approached the Martinez vehicle and asked Martinez for his driver's license, registration, and proof of insurance. Martinez was unable to immediately locate the vehicle registration and proof of insurance, but shortly found his driver's license. After Officer Cox made a computer check of Martinez' driver's license, Martinez located the registration for the pickup truck and showed it to the officer. The registration indicated that he was the owner of the pickup truck and listed an address in Pagosa Springs, Colorado. Officer Cox noticed a motorcycle in the rear of the pickup truck and asked Martinez whether he owned the motorcycle. Martinez stated that he did, and the officer asked for permission to examine it. Martinez consented to the examination.

Officer Cox obtained a vehicle identification number from the motorcycle and radioed for a computer check to determine whether it was stolen. The officer received an electronic message stating that the vehicle was reported stolen in Colorado Springs in April 1988 and was still listed as stolen. Officer Cox then placed Martinez and the defendant under arrest for the theft of the motorcycle. After being advised of his Miranda rights, the defendant told Officer Cox that, so far as he knew, Martinez had borrowed the motorcycle from a friend in Colorado Springs a few months previously. ¹

Following his arrest, the defendant was transported to the Mesa County Jail where he was searched as part of a routine booking procedure. During the search a packet containing a crystalline substance was recovered from the defendant's wallet and a similar packet was taken from his front pocket. When the officer conducting the search asked the defendant what the substance was, the defendant responded, "Coke." The next day the Colorado Springs Police Department informed Officer Cox that the motorcycle previously reported as stolen had actually been recovered in October 1988 and was no longer listed as stolen.

Based on the evidence presented at the suppression hearing, the district court suppressed the two packets of cocaine taken from the defendant during the search at the county jail. The court ruled that Officer Cox properly stopped the pickup truck and conducted an investigation at the scene of the stop, that he appropriately checked the status of the motorcycle, and that on the basis of the information received during his investigation the officer had probable cause to arrest Martinez, the driver of the pickup truck, for the theft of the motorcycle. The court, however, concluded that there was no probable cause to arrest the defendant, ruling in pertinent part as follows:

The Court has no question as to the good faith of the officers in believing that the A.T.V. [all-terrain vehicle] was stolen, based upon the records, their teletype messages, but this was primarily with reference to Mr. Martinez. There's nothing to show that Mr. Foster had any knowledge of the actual theft or knowledge of the stolen nature of the vehicle. The only statement is, as I recall, is that Mr. Martinez had borrowed it from some friend.

* * * * * *

The arrest of Mr. Martinez, this Court feels[,] based upon the limited information that has come out in this Foster hearing, ... was perfectly proper and based upon probable cause. But the extremely thin basis of the arrest of the ... other occupant of the vehicle is the problem that the Court has with this case entirely. There was no basis. ²

In urging reversal of the district court suppression ruling, the People claim that the information obtained by Officer Cox concerning the stolen nature of the motorcycle, although mistaken, was nonetheless obtained in good faith during a valid investigatory stop, and that such information provided the officer with probable cause to arrest both Michael Martinez, the owner and operator of the pickup truck, and the defendant, the passenger in the pickup truck. We reject the People's claim.

Where, as here, an arrest has been effectuated without a warrant, the prosecution bears the burden of establishing probable cause for the arrest. E.g., People in the Interest of S.J.F., 736 P.2d 29 (Colo.1987); People v. Rayford, 725 P.2d 1142 (Colo.1986). Probable cause in the case of a warrantless arrest requires that an arresting officer have reasonable grounds to believe that the person arrested has committed or is committing a crime. E.g., Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); People v. Tufts, 717 P.2d 485, 491 (Colo.1986); People v. Tottenhoff, 691 P.2d 340, 343-45 (Colo.1984). If Officer Cox had probable cause to arrest the defendant, then the search of the defendant's person at the county jail would be constitutionally valid as an inventory search incident to a lawful arrest. E.g., Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); People v. Inman, 765 P.2d 577 (Colo.1988).

Because cases involving probable cause for a warrantless arrest arise in an infinite variety of factual situations and turn ultimately on a consideration of the totality of circumstances, rarely will there be a prior decision that is factually identical to the case in question. The most that can be reasonably expected in this area of the law is that a prior decision involved facts of such close similarity as to place the case at issue within the core of the prior precedent. We believe that the decision of the United States Supreme Court in United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1947), and this court's decision in Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972), provide the controlling precedent for resolving this case.

In DiRe, the defendant was riding as a passenger in the front seat of an automobile operated by the driver Buttitta, who was suspected of selling counterfeit gasoline ration coupons, and a police informer was riding as a passenger in the back seat. When approached by police officers, the informer in the back seat had gasoline ration coupons in his hand and stated that he had obtained them from the driver. The officers then made a warrantless arrest of the driver and DiRe. At the police station, DiRe was searched and counterfeit gasoline coupons were found on his person. DiRe was convicted of possession of counterfeit gasoline coupons, but the United States Supreme Court reversed his conviction on the basis that the stationhouse search was the product of an illegal arrest. The Court stated that even if there had been probable cause to search the driver's vehicle, the basis for such search would not have conferred an incidental right to search DiRe simply because he happened to be present in the vehicle. 332 U.S. at 581, 68 S.Ct. 222. Nor, in the Court's view, was the stationhouse search of DiRe justified as incident to a lawful arrest for participating in a conspiracy to distribute the counterfeit coupons:

The argument that one who "accompanies a criminal to a crime rendezvous" cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched when the meeting is not secretive or in a suspicious hide-out but in broad daylight, in plain sight of passers-by, in a public street of a large city, and where the alleged substantive crime is one which does not necessarily involve any act visibly criminal. If DiRe had witnessed the passing of papers from hand to hand, it would not follow that...