People v. Polander

• Citation: 41 P.3d 698
• Decision Date: 01 October 2001
• Docket Number: No. 01SA79.,01SA79.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bobbie Jean POLANDER and Robert Eden Andrew, Defendants-Appellees.
• Court: Supreme Court of Colorado

41 P.3d 698

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bobbie Jean POLANDER and Robert Eden Andrew, Defendants-Appellees.

No. 01SA79.

Supreme Court of Colorado, En Banc.

October 1, 2001.

Robert S. Grant, District Attorney, 17th Judicial District Michael J. Milne, Senior Deputy District Attorney, Brighton, CO, Attorneys for Plaintiff-Appellant.

Natalie Frie, Englewood, CO, Attorney for Defendant-Appellee Robert Eden Andrew.

David S. Kaplan, Colorado State Public Defender J. Brandeis Sperandeo, Deputy State Public Defender Brighton, CO, Attorneys for Defendant-Appellee Bobbie Jean Polander.

Justice COATS delivered the Opinion of the Court.

The People appealed pursuant to section 16-12-102(2), 6 C.R.S. (2000), and C.A.R. 4.1, challenging the trial court's suppression of drugs discovered on Defendant Andrew's person and in his van, as well as statements made by Defendant Polander at the scene of the arrest and later at the police station. The district court suppressed Defendant Polander's initial statement as the product of custodial interrogation without a valid waiver of Miranda rights, and it suppressed all of the evidence seized from Defendant Andrew and his van, as well as Defendant Polander's subsequent statement, as the fruit of an illegal seizure of the defendants. Because the investigatory stop of the defendants was justified by reasonable articulable suspicion, the district court's suppression of evidence as the fruit of an illegal seizure is reversed. However, since Defendant Polander was in custody within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), without the benefit of Miranda warnings, when she initially admitted ownership of the drugs found in the vehicle, the trial court's order suppressing that statement is affirmed, and the case is remanded for further proceedings.

I.

Following a report of suspected drug activity in the parking lot of a Burger King restaurant and the subsequent discovery of suspected narcotics on Defendant Andrew's person and in his van, the defendants were arrested and charged with unlawful possession with the intent to distribute twenty-five to four hundred fifty grams of a schedule II controlled substance. Each filed a number of pretrial motions, including motions to suppress both evidence seized and statements made following their stop and arrest by the Thornton police. The only witnesses to testify at the joint suppression hearing were Officers Longobricco and Frazen, who responded to the scene and arrested the defendants, and Officer Chavez, who filed the case. According to the uncontradicted testimony of the officers, the Thornton police received a call at 10:48 p.m., on June 4, 2000, from an unnamed Burger King employee reporting that a white, service-type van and a small white vehicle had been parked in the southwest area of the Burger King parking lot at 301 84th Avenue for about 30 minutes, and that an employee had observed the occupants passing a marijuana pipe back and forth. Within minutes both Officers Longobricco and Frazen were dispatched to the parking lot to investigate a possible narcotics violation involving a white service truck. When they arrived minutes later, they found that the only two vehicles on the west side of the lot were a white service van and a smaller vehicle parked within inches of the van's passenger side.

Both officers parked their cars behind the service van and approached it from opposite sides. Looking through the rolled-down, driver's side window, Officer Longobricco could see that no one was occupying the driver's seat, but several people were communicating and engaging in some activity in the back of the van. After getting no response to his first inquiry concerning the driver of the van, Officer Longobricco inquired a second time. Defendant Andrew then turned toward him and answered that he was the driver.

Because Andrew's hands were in his pockets when he turned to answer, and because the back of the van visibly contained various tools that could be used as weapons, Officer Longobricco asked him and the other occupants to step outside in order to pat them down for weapons. Longobricco felt a small, hard object in Andrew's right front pocket. When asked, Andrew indicated that he did not know what the object was but gave permission to Officer Longobricco to remove the object and subsequently to look inside it. After discovering that the small, cylindrical container held what appeared to be a narcotic, Officer Longobricco handcuffed Andrew and instructed him to sit on a nearby curb.

While Longobricco was questioning Andrew, Officer Frazen had Defendant Polander and the other two occupants come out of the van, and he patted them down for weapons. They were similarly instructed to sit on the curb next to Andrew, although they were not handcuffed. Having found what looked like narcotics, the officers asked and were granted permission to search the van, by Andrew. Officer Frazen found a spoon that appeared to have been burned, a razor blade, a black purse belonging to Polander, and a purple "Crown Royal" bag in the van. Both the purse and Crown Royal bag contained white, powdery balls suspected of being cocaine. When Longobricco asked to whom the Crown Royal bag belonged, Polander responded that it was hers. Polander was then handcuffed, placed in Officer Frazen's patrol car, and taken to the Thornton police station, where she was advised both orally and by written form of her Miranda rights. After waiving her Miranda rights, Polander gave oral and written statements indicating that the cocaine was hers and that her intent was to sell it.

At the conclusion of the testimony, the trial court made findings of fact and announced its conclusions of law. The court found that neither the report nor the observations of the officers when they arrived on the scene gave them reasonable suspicion to conduct an investigatory stop, and therefore it suppressed the evidence found on Defendant Andrew. It also found that Defendant Polander was in custody when she initially admitted ownership of the drugs from the van, and it similarly suppressed that statement. It did not, however, order suppression of the evidence taken from the van, finding that Defendant Andrew gave voluntary consent to search. Nor did it suppress Defendant Polander's subsequent statement at the police station, finding that it followed a valid waiver of her Miranda rights and that her earlier statement, although taken in violation of Miranda, was nevertheless voluntary.

Several weeks later, the trial court heard additional argument and reconsidered its initial ruling. In its subsequent written ruling it decided that despite the voluntariness of Defendant Andrew's consent to search his van, that consent was the fruit of the initial illegal stop and subsequent search of his person. Similarly, the trial court held that although Defendant Polander's post-Miranda statement was not inadmissible because of her earlier, pre-Miranda statement to the same effect, it was directly connected to the initial illegal activity, without attenuation or independent source. The court therefore modified its suppression order to include the evidence seized from the van and Defendant Polander's post-Miranda statement.

The People filed their interlocutory appeal pursuant to section 16-12-102(2) and C.A.R. 4.1 from the trial court's suppression order as modified.

II.

The Fourth Amendment's protection against unreasonable searches and seizures includes the seizure of a person and prohibits an arrest in the absence of probable cause to believe the person being arrested has committed a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Probable cause is determined by consideration of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The probable cause standard is a "practical, nontechnical conception," involving common-sense conclusions about human behavior. Id. It is a "fluid concept," turning on the assessment of probabilities in particular factual contexts that are not reducible to a neat set of legal rules. Id. at 232, 103 S.Ct. 2317. As such, probable cause depends upon both the content of the information possessed by the police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Although the probable cause determination may include consideration of information provided to the police by other people, the value of this kind of information to the ultimate determination of probable cause obviously requires some assessment of its reliability. Both the truthfulness of the person providing the information and the way in which he acquired the information have long been considered important factors in this assessment. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)

; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). If he did not actually see or otherwise perceive first-hand the facts that he asserts, it is nevertheless important to be able to tell that he acquired the information in a way that provides a good reason to believe it is accurate. Id. Similarly, even if the inherent credibility of the informant cannot be determined from past experience or in some other way, it would be meaningful if there were some reason to credit the reliability of his information on the particular occasion at issue. Id. While the two prongs of the so-called Aguilar-Spinelli test, with their joint concerns for "veracity," "reliability," and "basis of knowledge" were, and continue to be, highly relevant to the value of information provided to the police, it is also now well-established that "the two prongs were intended simply as guides," and that each "prong" need not be satisfied in any technical sense in order for the information to be included in the...