People v. Higbee, 89SA257

• Citation: 802 P.2d 1085
• Decision Date: 24 December 1990
• Docket Number: No. 89SA257,89SA257
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James William HIGBEE, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 1085

802 P.2d 1085

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James William HIGBEE, Defendant-Appellee.

No. 89SA257.

Supreme Court of Colorado En Banc.

Dec. 24, 1990.

John Suthers, Dist. Atty., Brett Barkey and David A. Gilbert, Deputy Dist. Attys., Colorado Springs, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Shaun C. Kaufman, Deputy State Public Defender, Colorado Springs, for defendant-appellee.

Justice LOHR delivered the Opinion of the Court.

The prosecution filed an interlocutory appeal pursuant to C.A.R. 4.1 challenging an order of the El Paso County District Court suppressing physical evidence seized during a search of the defendant's apartment. The district court concluded that the warrantless search was not justified by exigent circumstances, and ordered the suppression of all fruits of the search. We determined that the findings of the district court were not sufficient to permit us to evaluate the propriety of the suppression order. We therefore remanded the case for the purpose of a new hearing on the motion to suppress ¹ and requested specific factual findings and legal conclusions on the issues of probable cause and exigent circumstances. On remand the district court held an evidentiary hearing and again granted the motion to suppress. The court concluded that police officers lacked both probable cause and exigent circumstances to enter the defendant's apartment. We reverse the district court's suppression order and remand the case for further proceedings.

I.

We derive the following description of the relevant events from the findings of the district court, supplemented by uncontroverted evidence in the record. ² On the evening of January 19, 1989, a confidential informant working with the Colorado Springs Police Department purchased a small quantity of alleged narcotics from the defendant. The purchase took place in the defendant's car in the parking lot of a supermarket and was observed by police officers stationed nearby. After the purchase, the defendant evaded surveillance by the officers.

The informant reported to a police officer immediately after buying the alleged narcotics. She stated that she had seen an extra toggle switch on the dashboard of the defendant's car and wires attached to two red tubes by electrical tape. The defendant allegedly told the informant that the tubes were dynamite and that the toggle switch could be used to arm the explosive, which would then detonate if anyone tampered with the car. In addition, the defendant allegedly explained that he could set the explosive with a thirty-second delay so that he could trigger it, then escape, prior to the explosion. The confidential informant had worked with the police department on previous occasions, and the information provided by the informant on those occasions had been verified.

Subsequent to the "buy," an officer of the Colorado Springs Police Department obtained an arrest warrant for the defendant. Police officers located the defendant's car outside an apartment complex in Colorado Springs about 4:00 p.m. on January 20, approximately eighteen to nineteen hours after the "buy." The officers observed the defendant and others carrying packages from the defendant's car to the apartment complex. The persons assisting the defendant left in a van before the officers approached the defendant.

Shortly after the defendant was located, police officers notified the head of the police department bomb squad and told him of the information provided by the informant. Before the bomb squad arrived, officers arrested the defendant, handcuffed him, and placed him in the back seat of a police car. Pursuant to the bomb squad officer's instructions, the officers evacuated approximately five families from the apartment complex and two adjacent complexes within a 300 foot radius ³ and secured that area from further entry by civilians.

Upon arrival at the scene, the officer in charge of the bomb squad looked inside the defendant's car and observed an extra toggle switch on the dashboard. He asked the defendant about the switch and was told that it was used to bypass a short-circuit. The officer entered the car, traced the wires from the switch, determined that they functioned as a bypass of a short circuit in the ignition system as the defendant had claimed, and further determined that there were no explosives in the car. The officer questioned the defendant about the confidential informant's report concerning the dynamite and the defendant's statements about explosives. The defendant denied that there had been dynamite in the car or that he had made the statements attributed to him by the confidential informant.

The bomb squad officer, concerned that explosives had been moved to the apartment and might be rigged to a booby trap or timing device, ⁴ led a search of the apartment. The defendant was in custody at this time. The explosive device described by the informant was not found. However, the police officers did locate a military hand grenade simulator ⁵ and controlled substances. Those items were later seized by police officers.

The district attorney filed an Information in El Paso County District Court, charging the defendant with a number of narcotics offenses and other crimes, based in part on items discovered during the search of the apartment. The defendant moved to suppress all fruits of the search of his apartment. The defendant argued that the police officers lacked probable cause to search his apartment and that there were no exigent circumstances to justify the warrantless search.

The district court in the first hearing concluded that the warrantless search was not justified by exigent circumstances and ordered suppression of all fruits of the search. The court based this ruling on the facts that the defendant's car had been secured, the defendant had not been in the apartment for at least one-half hour, and the defendant and his roommate ⁶ were in custody. On remand the district court in the second hearing again granted the defendant's motion to suppress the fruits of the warrantless search.

II.

The propriety of the district court's suppression order depends on the legitimacy of the conduct of the police officers in entering and searching the defendant's apartment without a warrant. The district court held that the officers lacked probable cause to believe explosives were located in the apartment, and that the prosecution failed to prove the existence of exigent circumstances. We conclude that the district court's findings of fact do not support its conclusions that probable cause and exigent circumstances to support the warrantless search were lacking.

The fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution proscribe all unreasonable searches and seizures. Under these provisions a warrantless search is invalid unless it is supported by probable cause and is justified under one of the narrowly defined exceptions to the warrant requirement. People v. Garcia, 752 P.2d 570, 581 (Colo.1988); People v. Clements, 661 P.2d 267, 270-71 (Colo.1983). Among the exceptions that give rise to a reasonable search despite the absence of a warrant is the existence of exigent circumstances. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Garcia, 752 P.2d at 581; People v. Malczewski, 744 P.2d 62, 66 (Colo.1987); Clements, 661 P.2d at 271. We have limited application of the exigent circumstances exception to "those situations involving a bona fide pursuit of a fleeing suspect, the risk of immediate destruction of evidence, or a colorable claim of emergency threatening the life or safety of another." Malczewski, 744 P.2d at 66; accord McCall v. People, 623 P.2d 397, 402 (Colo.1981). Thus, to support admission of evidence seized as the fruit of the warrantless search of the defendant's apartment, the burden was on the prosecution to prove (1) there was probable cause to believe an explosive device was located in the defendant's apartment, and (2) the presence of the device gave rise to exigent circumstances that justified the warrantless search.

A.

The constitutional standard of probable cause serves to safeguard against "unreasonable interferences with privacy" while allowing "fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); accord People v. Ratcliff, 778 P.2d 1371, 1375 (Colo.1989); People v. Melgosa, 753 P.2d 221, 225 (Colo.1988). Probable cause is a flexible standard deriving its content from a common sense concept of reasonableness. Ratcliff, 778 P.2d at 1375; Melgosa, 753 P.2d at 225. "In the case of a search, probable cause means reasonable grounds to believe that [the item sought] is located in the area to be searched." Melgosa, 753 P.2d at 225; accord People v. Hearty, 644 P.2d 302, 309-10 (Colo.1982); People v. Ball, 639 P.2d 1078, 1082 (Colo.1982). In assessing the existence of probable cause to support action taken without a warrant, we must consider "the police officer's knowledge, expertise, and experience in a particular law enforcement field." People v. Rueda, 649 P.2d 1106, 1109 (Colo.1982); accord, e.g., Melgosa, 753 P.2d at 225; Ball, 639 P.2d at 1082. To determine the reasonableness of the police officers' actions in reliance on information provided by an informant, we consider the totality of the circumstances, taking into account, among other things, the veracity of the informant as well as the informant's basis of knowledge. People v. Pannebaker, 714 P.2d 904, 907 (Colo.1986). ⁷ Evidence verifying the informant's tip is of particular importance. Pannebaker, 714 P.2d at 907.

The district court found that a confidential informant, proven to be reliable in the past, reported seeing red tubes attached to wires in the defendant's car and that the defendant told the...