People v. Probasco

• Decision Date: 10 September 1990
• Docket Number: No. 90SA84,90SA84
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Daniel Jay PROBASCO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1330

795 P.2d 1330

59 USLW 2227

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Daniel Jay PROBASCO, Defendant-Appellee.

No. 90SA84.

Supreme Court of Colorado,

En Banc.

Sept. 10, 1990.

Jon M. Bailey, Dist. Atty., Thirteenth Judicial District, Sterling, for plaintiff-appellant.

Bruno, Bruno & Colin, P.C., Louis B. Bruno, Earl S. Wylder, Lakewood, for defendant-appellee.

Justice ERICKSON delivered the Opinion of the Court.

In this interlocutory appeal, pursuant to C.A.R. 4.1, the prosecution seeks to overturn an order of the district court suppressing certain statements made by the defendant, Daniel J. Probasco. The statements were made by the defendant, a deputy sheriff, to fellow police officers while he was seated in his police vehicle. The district court held that the statements were the product of interrogative questioning in a custodial setting, without the benefit of Miranda ¹ warnings, and therefore violated the defendant's constitutional rights. We reverse the suppression order and remand to the trial court for further proceedings consistent with this opinion.

I.

On July 15, 1989, at 1:16 a.m., the defendant, Morgan County Deputy Sheriff Daniel Probasco, radioed that he was making a traffic stop. A short time later, he requested assistance, and officers from both Fort Morgan and Morgan County responded.

Upon arriving at the scene, the officers found Probasco's car, with its emergency lights on and engine running, but could not locate Officer Probasco. Within a few minutes, the police dispatcher relayed a 911 call that shots were fired within a short distance from Probasco's patrol car. The officers went to that location and found Probasco kneeling over the body of Daniel E. Smith. Smith's head was bleeding profusely, and he had been shot. Police Sergeant Bruce Ringo, who was the first to take charge of the investigation, asked Probasco to step back and began efforts to resuscitate Smith. According to Officer Ringo, the defendant was shaken up and was "overwhelmed with what was going on." Ringo asked another officer to accompany the defendant back to the defendant's patrol car and to wait with him there. Probasco and two other officers went to Probasco's patrol car. A third officer, Leon Smith, joined the defendant and the two other officers a short time later.

At the suppression hearing, Officer Smith testified that he noticed Probasco's radio and baton on the porch of a nearby house. Smith asked Probasco "how his stick and his radio wound up on the porch?" Smith said that he asked the question just "to start up a conversation" and that he had joined Probasco and the other officers to "make sure that Officer Goebel and Dan Probasco were ok." It was then that the defendant replied "[l]et me tell you what happened." Probasco stated that he had stopped the driver, and that while talking to him, the driver shoved him and ran away. Probasco chased the driver for a block or so, found him under some bushes hiding, drew out his pistol and ordered the man to remain where he was. Probasco stated that Smith began to get up, "struck the end of his weapon and the weapon went off on him." Smith later died as a result of being shot in the head.

The defendant was not placed under arrest, and was not given the Miranda warning before or after he made the statement. Probasco was subsequently charged with criminally negligent homicide. ²

The defendant, relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), moved to suppress the statements. Following a hearing, the district court granted the defendant's motion and ordered that the statements be suppressed.

II.

Miranda v. Arizona requires a four-fold warning prior to custodial interrogation to ensure that the accused is advised of his right to counsel and of his right not to incriminate himself. Miranda, 384 U.S. at 478-79, 86 S.Ct. at 1630. Before Miranda is applicable, however, there must be both interrogation by the police, and "custody." Id. The issue in People v. Trujillo, 784 P.2d 788 (Colo.1990), was when does police questioning become custodial interrogation. Under the facts in Trujillo, questioning by a police officer in a police interview room amounted to custodial interrogation and required Miranda warnings. Whether Probasco's answers to the question asked by a fellow officer were the product of custodial interrogation is the issue in this case.

III.

The prosecution claims both that the question asked Probasco did not amount to interrogation, and that Probasco was not in custody at the time he made his statement. In Trujillo, we stated that interrogation referred "not only to express questioning by a police officer, but also to any words or actions on the part of the officer that the officer 'should know are reasonably likely to elicit an incriminating response from the suspect.' " Trujillo, 784 P.2d at 790 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1670, 64 L.Ed.2d 297 (1980)). The district court found that Officer Smith's question regarding "how his [the defendant's] stick and radio wound up on the porch" constituted interrogation under the Innis and Trujillo standard. Though such a question, from one officer to another, is not of the adversarial nature normally associated with police interrogation, Officer Smith reasonably should have expected the defendant to answer with some kind of an explanation--which is precisely what happened. Any explanation of the events leading up to the shooting could be potentially incriminating, and would therefore be the very kind of statement that Miranda was intended to protect. Here, the district court correctly found that the question amounted to interrogation. The more difficult issue is whether the questioning occurred while Probasco was in custody.

IV.

Custody includes, but is not limited to, the situation in which the defendant is actually placed under arrest. It is conceded that Officer Probasco was not under arrest at the time he made the statement to Officer Smith. Interrogation is also custodial, however, whenever the defendant is "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In Trujillo, we stated that a court must "consider the totality of the circumstances surrounding the interrogation" in order to determine whether a "reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way...." Trujillo, 784 P.2d at 791. Factors include:

The time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.

People v. Thiret, 685 P.2d 193, 203 (Colo.1984). As we stated in Trujillo, our role is to examine the record and determine whether the district court applied the correct legal standard and, if so, whether the ruling is "adequately supported by competent evidence." Trujillo, 784 P.2d at 792.

In ruling that the interrogation of Probasco was custodial, the district court found that when viewing the totality of the circumstances, any reasonable person would have considered "himself deprived of his freedom of action in a significant way." To reach that conclusion, the court relied on the time, place, and purpose of the encounter, and the subjective understanding of the defendant.

[T]he defendant was first contacted over the body of the victim under circumstances implicating him in the death of the victim. The officers involved had received information through the dispatcher that there had been a problem on contact, and certainly the officers responding to the location of the defendant and the victim fully understood that it was something more than a mere traffic problem, ....

The court also focused on the defendant's statement that he did not want to say anything immediately after the other officers arrived and found the defendant leaning over the body. The court took this statement to mean that the defendant subjectively knew that he was not free to leave. While the defendant's verbal and nonverbal responses are a factor to be taken into consideration, we believe the district court was too limited in its examination.

Miranda's protections seek to guard against involuntary incriminating statements made under the "inherently compelling pressures" present in custodial interrogations that "work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984) (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). In Murphy, the Court said that "[w]e have consistently held, however, that this extraordinary safeguard does not apply outside the context of the inherently coercive custodial interrogations for which it was designed." Murphy, 465 U.S. at 430, 104 S.Ct. at 1144 (citations omitted). The Court reaffirmed Miranda's limited application last term in Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). In Perkins, the Court stated that "Miranda forbids coercion," and acknowledged that "confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without compelling influences is, of course, admissible in evidence." Id. 496 U.S. at ----, 110 S.Ct. at 2397 (citations omitted). Perkins held that Miranda warnings were not required when an undercover police officer was sent into a cell to ask a prisoner questions designed to elicit incriminating statements...