People v. Moreno

• Decision Date: 13 December 1971
• Docket Number: No. 25047,25047
• Citation: People v. Moreno, 491 P.2d 575, 176 Colo. 488 (Colo. 1971)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gilbert Ray MORENO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 575

491 P.2d 575

176 Colo. 488

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Gilbert Ray MORENO, Defendant-Appellant.

No. 25047.

Supreme Court of Colorado, En Banc.

Dec. 13, 1971.

Floyd Marks, Dist. Atty., Stanley B. Bender, Chief Deputy Dist. Atty., Brighton, Duke W. Dunbar, Atty. Gen., John P Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, Denver, J. D. MacFarlane, Chief Deputy State Public Defender, Lawrence J. Schoenwald, Deputy State Public Defender, Brighton, for defendant-appellant.

ERICKSON, Justice.

This is an interlocutory appeal by the defendant, Gilbert Ray Moreno, from a ruling of the district court of Adams County.It was perfected under the provisions of C.A.R. 4.1 after the trial court denied a motion to suppress a statement which was made by the defendant following his arrest for grand theft and conspiracy to commit grand theft.

The defendant claims that he was arrested pursuant to an arrest warrant which was issued without probable cause and that any statement he made subsequent thereto was the fruit of an illegal arrest and, therefore, inadmissible.In particular, he contends that the complaint supporting the arrest warrant failed to set forth facts sufficient to satisfy the probable cause requirements of the Fourth Amendment to the United States Constitution,Article II, Section 7 of the Constitution of Colorado, andRule 4 of the Colorado Rules of Criminal Procedure.The defendant also claimed at the time of the suppression hearing that the statement should have been suppressed on the ground that it was made involuntarily.

The arrest warrant in issue was premised upon the following complaint:

'Anthony Divirgilio, being duly sworn, on oath says, that on or about the 19th day of August 1970, one GILBERT RAY MORENO at the approximate location of Denver Dry GoodsCo., Inc., 10588 Melody Dr. at the approximate time of 2:00 P.M, in the County of Adams and State of Colorado, did then and there: commit the crime of Grand Theft by unlawfully and feloniously taking one Omega wristwatch from the Associated Dry Goods Corporation, a Virginia corporation doing business in Colorado as The Denver Dry Goods Company of the value of over One Hundred Dollars ($100.00);

'AND AS A FURTHER AND SECOND COUNT, informs the Court that on the 19th day of August 1970, at the County of Adams, State of Colorado, GILBERT RAY MORENO did then and there unlawfully and feloniously, agree, conspire and cooperate with some person or persons to the District Attorney unknown, to do and to aid in the doing by them, or some one or more of them, at the County of Adams, State of Colorado, of an unlawful act, namely, a felony against the building of the Associated Dry Coods Corporation, a Virginia corporation doing business in Colorado as The Denver Dry Goods Company, which felony was the crime of Theft as defined by Colorado Revised Statutes 1963, 40--5--2 as amended, and is the transaction described in Count One of this complaint; in violation of 40--5--2 & 40--7--35 C.R.S., 1963as Amended and contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado, and therefore prays that the said GILBERT RAY MORENO be arrested and dealt with according to law.'

We find the complaint to be void of facts sufficient to establish probable cause.To support the issuance of an arrest warrant, the complaint must comply with the probable cause requirements of The Fourth Amendment to the United States Constitution,Article II, Section 7 of the Constitution of Colorado, andRules 3and4(a) of the Colorado Rules of Criminal Procedure.Obviously, the existence of probable cause must be determined by a member of the judiciary, rather than by a law enforcement officer who is employed to apprehend criminals and to bring charges against those who choose to violate the law.Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971);Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436(1948).In determining whether or not probable cause exists, a judge should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503(1958).The United States Supreme Court, in condemning the complaint in the Giordenello case, stated:

'The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complaint's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.We think these deficiencies could not be cured by the (Judge's) reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer.'

Facing a similar fact situation in People v. Sesslin, 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321(1968), the California Supreme Court, in striking down an arrest warrant, provided us with this analysis of legal precedent:

'Although the Attorney General correctly points out that Giordenello rested on the federal rules of criminal procedure applicable to a federal prosecution, Aguilar v. State of Texas(1964)378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, grounded these rights in the Constitution.In that case, which involved a search warrant issued by a Texas justice of the peace, the United States Supreme Court said, 'The principles announced in Giordenello derived, therefore, from the Fourth Amendment, and not from our supervisory power.' . . .'

'In Barnes v. Texas(1965)380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, in a case involving an arrest warrant, the Supreme Court in a per curiam opinion cited Giordenello and Aguilar as the sole basis for reversal of the conviction.⁴

Barnes demonstrates that Giordenello and Aguilar must be read together as formulating the requirements of the Fourth Amendment for valid arrest as well as search warrants, and that the standards set forth in Giordenello, as clarified in Aguilar, United States v. Vantresca (sic)(1965)380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684andJaben v. United States(1965)381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345, apply to the states through the Fourteenth Amendment.(Ker v. State of California, supra, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.)'

The conclusion that no arrest warrant may constitutionally issue on the basis of a complaint, such as the one which is before us, is also compelled by Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306(1971), in which the Supreme Court said:

'The decisions of this Court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969);United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684(1965);Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964);Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887(1964);Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697(1960);Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503(1958).In the instant case--so far as the record stipulated to by the parties reveals--the sole support for the arrest warrant issued at Sheriff Ogburn's request was the complaint reproduced above.That complaint consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint.The actual basis for Sheriff Ogburn's conclusion was an informer's tip, but that fact, as well as every other operative fact, is omitted from the complaint.Under the cases just cited, that document alone could not support the independent judgment of a disinterested magistrate.

'The State, however, contends that regardless of the sufficiency of the complaint to support the arrest warrant, the Laramie police officer who actually made the arrest possessed sufficient factual information to support a finding of probable cause for arrest without a warrant.In support of this proposition, the State argues that a reviewing court should employ less stringent standards for reviewing a police officer's assessment of probable cause as a prelude to a warrantless arrest than the court would employ in reviewing a magistrate's assessment as a prelude to issuing an arrest or search warrant.That proposition has been consistently rejected by this Court.United States v. Ventresca, 380 U.S. 102, 105--109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684(1965);Aguilar v. Texas, 378 U.S. 108, 110--111, 84 S.Ct. 1509, 1511--1512, 12 L.Ed.2d 723(1964);Jones v. United States, 362 U.S. 257, 270--271, 80 S.Ct. 725, 735--736, 4 L.Ed.2d 697(1960).And the reason for its rejection is both fundamental and obvious: less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant.Thus the standards applicable to the factual basis supporting the officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment.SeeMcCray v. Illinois, 386 U.S. 300, 304--305, 87 S.Ct. 1056, 1058--1059, 18 L.Ed.2d 62(1967).'

The complaint in the Whiteley case was condemned because of the conclusory language which was used.The complaint in this case is all but identical and will not support a valid arrest warrant.

These constitutional principles have...