People v. Glasener

• Decision Date: 07 June 1976
• Docket Number: No. 27124,27124
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Lee GLASENER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 851

550 P.2d 851

191 Colo. 114

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Lee GLASENER, Defendant-Appellee.

No. 27124.

Supreme Court of Colorado, En Banc.

June 7, 1976.

Stuart A. Van Meveren, Dist. Atty., Donald E. Johnson, Jr., Deputy Dist. Atty., Fort Collins, for plaintiff-appellant.

Harden & Napheys, Charles S. Bloom, Fort Collins, for defendant-appellee.

HODGES, Justice.

This is an interlocutory appeal by the People from a ruling suppressing statements made by the defendant Glasener and also suppressing weapons seized from his home pursuant to a consent search. After a hearing, the trial court made a finding that no probable cause existed to arrest the defendant, and consequently, the statements and weapons, which were the products of that arrest, were ordered suppressed as evidence at trial. In our view, the trial court erred by not finding that probable cause existed under the evidence presented. We therefore reverse its suppression order.

At the suppression hearing, the arresting officer testified to the following events which led to the defendant's arrest. He was contacted in person at the police station by a man who identified himself only as 'Jim.' Jim stated that two men had offered to sell him guns, and that he himself had tried to find buyers for them. One of the men had boasted that the guns were stolen. Jim told the officer that within the last fifteen minutes he had seen and handled the weapons in the apartment of one of the two men. Two of the weapons he described as sawed-off shotguns. He then informed the officer that the men planned to sell these guns from their car that afternoon. Jim described in detail the location and address of the apartment, and the location and description of the car, including its make, model, color and type of license plate. He also gave a description of the two men.

The officer testified that the informant accompanied him when he drove to the apartment and that the purpose of this trip was to verify the informant's description of the apartment, its location, the vehicle, and its location. As they proceeded down the alley behind the residence in an unmarked police cruiser, the informant pointed to two men running out of the apartment house and indicated that they were the men who possessed the weapons and who had tried to sell them to him. The men, who matched the informant's earlier description, entered a car, which was identical to the one described by the informant, and drove away. The officer followed and radioed for assistance from other police officers to stop the car. The officer admitted that his purpose for ordering the car stopped was to arrest the occupants and to search the car because he believed at the time that the vehicle contained stolen firearms. While the other officers checked the license of the driver who was the defendant, the arresting officer, with the informant still in his car, walked past the defendant's car and noticed a shotgun shell lying on the rear floorboard of the car.

Defendant was placed under arrest and orally advised of his Miranda rights. His car was searched but no weapons were found. He then consented to a search of his apartment and made incriminating statements to the police.

The search of defendant's apartment uncovered numerous firearms, including two sawed-off shotguns. These firearms were traced to a sporting goods store that had been allegedly burglarized the day before in Loveland, Colorado. The defendant was charged with second-degree burglary, conspiracy to commit theft, and theft.

To establish probable cause in this case on the basis of the aforementioned informant's tip, the Aguilar-Spinelli test requires that the informant's basis of knowledge and his reliability be established. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also, People v. Montoya, Colo., 538 P.2d 1332 (1975), and People v. Trontell, Colo., 533 P.2d 1124 (1975).

The defendant does not question the adequacy of the informant's basis of knowledge because the informant personally saw and inspected the guns in defendant's apartment, and heard the boast that the guns were stolen and that they intended to sell them from their car within the hour. He successfully argued to the trial court, however, that the informant was unreliable as a matter of law. The trial court made the finding that the police officer 'made no attempt to determine the credibility of the informant or the reliability of the information given by him prior to the apprehension and arrest of the defendant.' The defendant offered no evidence at the hearing, and other findings by the trial court indicate that it obviously gave credence to the testimony presented by the People. That testimony demonstrates in several ways the reliability of this informant.

Though the informant cannot be regarded as a citizen-informant because he did not reveal his identity or was not a fortuitous eyewitness to a crime, he, nonetheless, has some of the indicia of reliability of a citizen-informant. Compare People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974), and People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971). The informant voluntarily came to the police station, with no suspect motivation, such as, a promise of leniency on pending criminal charges or a promise of payment for his services. He also lacked the insulation of an anonymous phone caller as in People v. Williams, 186 Colo. 72, 525 P.2d 463 (1974), and, in fact, was willing to declare his accountability by accompanying the police officer to the defendant's apartment, pointing out the suspects, and remaining with the police during the defendant's arrest.

The informant's reliability was further butressed by the statements he made to the police against his penal interest. See United States v. Harris, 401 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); People v. Trontell, supra; DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972). Again, this case does not fall squarely within those decisions permitting reliability to be demonstrated by statements against one's penal interest because the informant's statements alone would not yet warrant a prosecution against him nor sustain a conviction against him. Nevertheless, his admission that he was contacted to sell stolen goods and that he made some attempt to locate buyers for them would sufficiently draw the suspicions of the police to his possible 'fencing' activities as to make his statements truly against his interests.

Finally, many of the precise details of his tip were corroborated by the police officer. Compare People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974), and People v. Trontell, supra.

The totality of all these factors warrant, as a matter of law, a conclusion that the informant was reliable. His corroborated information gave the officer probable cause to arrest the defendant for the possession and sale of stolen and/or illegal guns. Under the unique facts of this case, we also hold probable cause did not fully develop until after the officer had corroborated many of the details of the tip and after the suspects had hurriedly driven off in their car, which very possibly contained the weapons. The officer was justified by the exigencies here to make a warrantless arrest. ¹

A concluding statement in the defendant's brief indicates that he is also maintaining that the defendant may not have intelligently and knowingly consented to the search of his apartment. His motion to suppress though does not specially challenge the lawfulness of his consent and the trial court's finding includes a statement which implicitly holds that the consent was proper under the evidence here. We therefore see no basis for remanding this case for a more specific finding on the matter of the defendant's consent to search his apartment.

For the foregoing reasons, we hold that the finding of no probable cause for the arrest of this defendant is erroneous. Therefore, we reverse the trial court's suppression ruling.

ERICKSON, J., dissents.

ERICKSON, Justice (dissenting):

I respectfully dissent. I would affirm the ruling of the trial judge at the suppression hearing. Viewing the record as a whole, I would uphold the ruling of the trial judge. The prerogative for deciding whether or not probable cause was established is within the domain of the trial judge. People v. Trujillo, 179 Colo. 428, 500 P.2d 1176 (1972); See also United States v. Rahn, 511 F.2d 290 (10th Cir. 1975). Unless the trial judge has abused his prerogative, this court should not overturn his ruling. People v. Trujillo, supra.

The sole evidence which the prosecution possesses was obtained as a product of an arrest which was not supported by probable cause. People v. McPherson, Colo., 550 P.2d 311 (Announced June 1, 1976). The only conclusion to be drawn from the record in this case is that the investigating officers predicated probable cause to arrest the defendant solely upon the statements of an unidentified informant whose credibility was never established. The prosecution failed to lay the foundation for the arrest which was the basis for our sustaining the ruling in DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

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