People v. Quintero, 82SA174

• Docket Nº: No. 82SA174
• Citation: 657 P.2d 948
• Case Date: January 31, 1983
• Court: Supreme Court of Colorado

Page 948

657 P.2d 948 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Fidel QUINTERO, Defendant-Appellee. No. 82SA174. Supreme Court of Colorado,
En Banc. Jan. 31, 1983.

Page 949

Dale Tooley, Dist. Atty., Second Judicial Dist., O. Otto Moore, Asst. Dist. Atty., Brook Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

David Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellee.

ERICKSON, Justice.

This is an interlocutory appeal by the prosecution from an order suppressing evidence seized incident to the arrest of defendant, Fidel Quintero, and from the order setting aside his conviction of second degree burglary, section 18-4-203, C.R.S.1973 (1978 Repl.Vol. 8 and 1982 Cum.Supp.), and ordering that the defendant be granted a new trial.

The defendant waived a jury trial and was tried to the court. The court elected to consider the evidence offered at the trial for both the purpose of determining guilt and to resolve the issues relating to the defendant's motion to suppress the evidence that was seized at the time of his arrest. After the court heard the evidence, the court found the defendant guilty of second degree burglary and denied the motion to suppress. Thereafter, when the motion for a new trial was filed, the court granted the motion to suppress and ordered a new trial because of our opinion in People v. Schreyer, 640 P.2d 1147 (Colo.1982). We affirm.

I.

On September 29, 1981, at 12:45 p.m., Darlene Bergan was sweeping the porch of her home at 691 South Vine Street in Denver. It was a hot day and the temperature was in the 80 degree range or above that. Darlene Bergan's house is located adjacent to the bus stop at the corner of Exposition and Vine. She saw a man walking on the opposite side of the street and watched him go up on the porch of the house and stand at the front door for approximately twenty seconds, and then saw him stand at the front window so that he could peer into the front of the house for approximately the same amount of time. He then left the porch and proceeded north and appeared to be looking at the windows on the side of the house. He then walked in a northerly direction on Vine Street, stopped at another house, and then could not be seen by Mrs. Bergan. He was wearing a short sleeve shirt and appeared to be watching Mrs. Bergan. She next saw him at 1:45 p.m. while he was standing at a bus stop next to her house. He had taken off his shirt and had used the shirt to cover a television set. He paced nervously and was trying to thumb a ride or hitchhike while waiting for the bus to arrive. Mrs. Bergan thought he looked quite "antsey" and called the police. The police radio dispatcher reported that a possible burglary suspect was at the corner of Exposition and Vine.

Officer Freeman, a twenty-one year police veteran, was the first to respond and arrived approximately five minutes after the call was made. He asked Quintero for identification and Quintero had none. Other officers who arrived at the scene assisted in the investigation. Quintero claimed that he had bought the television set from someone in the neighborhood for $100 and was trying to go home with it. He was in an undershirt and had brown wool gloves in his back pocket which were found in a "pat down" search for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). While he was being questioned,

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Mrs. Bergan made herself known to the officers as the woman who had called the police and reported what she had seen. However, she did not tell the police officers what she had seen before the arrest was made. After Mrs. Bergan identified herself, Quintero was arrested and searched. Under the shirt the police found the television set and a video game. The police also found $140 in cash, five rings (including two class rings bearing different initials and class years), and some ladies jewelry in Quintero's pants pockets when he was searched at the police station.

After the arrest was made, the officers checked the neighborhood and were unable to determine that a burglary had occurred. Later that day, however, the owners of a house one block south of Mrs. Bergan's reported that their house had been burglarized and that a television set and a video game had been stolen. The television set and video game that were in the possession of Quintero when he was arrested were identified as the items taken in the burglary. It was approximately five hours after Quintero was arrested that the police learned that the items taken were obtained in the burglary.

II.

Probable cause to arrest exists when the facts and circumstances within an officer's knowledge are sufficient to support a reasonable belief that a crime has been committed by the person arrested. People v. Vigil, 198 Colo. 185, 597 P.2d 567 (1979); People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974); People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971). Evidence in plain view can be relied upon to establish probable cause. People v. McGahey, 179 Colo. 401, 500 P.2d 977 (1972). The totality of the facts considered as a whole can constitute probable cause even though no one fact, viewed alone, constitutes probable cause. People v. Eichelberger, 620 P.2d 1067 (Colo.1980).

The arresting officer in this case believed that probable cause existed to arrest Quintero. At the time the arrest was made, the police knew that Quintero was a stranger to the neighborhood, and that he claimed that he had purchased a television set from someone in the neighborhood. They also knew that he had attempted to cover the television set and the video game with his shirt. He had no identification, but no evidence existed to establish that a crime had been committed. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The police did not learn who the owners of the television set and the video game were until more than five hours after they arrested Quintero. Suspicion does not amount to probable cause and an analysis of the facts requires us to reach the same conclusion which we reached in People v. Schreyer, 640 P.2d 1147 (Colo.1982). Moreover, the house where Mrs. Bergan observed Quintero was not the house which was burglarized.

III.

The lack of probable cause to arrest cannot be remedied by resort to the good faith exception or the inevitable discovery rule. The dissenting views of Justice White in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), would craft a good faith exception for the exclusionary rule whenever a police officer reasonably and in good faith believes his conduct comports with existing law. The majority of the United States Supreme Court to date, however, has refused to recognize this good faith exception. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). Given such refusal, it would be inappropriate for this court to alter established Fourth Amendment doctrine by approving such an exception at...