People v. Saars

• Citation: 584 P.2d 622,196 Colo. 294
• Decision Date: 18 September 1978
• Docket Number: No. 27849,27849
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Francis SAARS, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 622

584 P.2d 622

196 Colo. 294

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Francis SAARS, Defendant-Appellant.

No. 27849.

Supreme Court of Colorado, En Banc.

Sept. 18, 1978.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Linda Palmieri Rigsby, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Hutchinson, Black, Hill, Buchanan & Cook, John A. Purvis, Boulder, for defendant-appellant.

CARRIGAN, Justice.

Defendant-appellant Saars appeals his jury convictions of three counts of first-degree sexual assault, one count of second-degree burglary, and two counts of felony menacing. We affirm all six convictions.

On the afternoon of December 3, 1975, at a bar in Longmont, one Weidmaier met the defendant Saars and three other males. He had not previously known any of the four. Weidmaier agreed to take them to the apartment of the female victim, in Boulder, to obtain drugs from her roommate from whom Weidmaier had previously purchased drugs. Upon arriving at the apartment, the five men knocked on the door but there was no response. Nevertheless they entered the apartment, and all except Weidmaier immediately produced guns from their clothing.

The victim testified that she awakened in her bed to find the men entering her bedroom with guns pointed at her. After a discussion about drugs and money, she was told to get out of bed. Saars then sat on the bed and forced her to perform fellatio on him while another of the men engaged in anal intercourse with her. Another man began to go through the victim's dresser and as she attempted to see what he was doing, a fourth man held a gun to her head and warned her to keep her attention on what she was doing. Weidmaier observed but did not participate in these sexual acts.

All of the men except one Sullivan then dispersed to search the apartment. Sullivan remained in the victim's bedroom and compelled her to perform fellatio upon him.

At this point the telephone rang and the victim, accompanied by one of the men, went downstairs to answer it. As she walked past the defendant Saars, he grabbed her, placed his fingers into her vagina and then grasped her breasts. After she answered the telephone in the presence of the armed intruders, Saars took her back to her bedroom where he required her to perform fellatio on him and to submit to his performing cunnilingus on her. Following this, Saars forced her to submit to vaginal intercourse.

Thereafter, money was taken from the victim, she was threatened with guns, and the group left, taking her car and many articles from her apartment. As the four assailants left the apartment building, Weidmaier fled from them and hid. He watched the four men drive away in two vehicles, a van and a Karmann Ghia automobile. Weidmaier then returned to the apartment house and contacted the apartment manager, who called the police. Some time later, Saars and two of the men who had been with him at the victim's apartment were arrested at a Boulder residence.

I. The Warrantless Arrest.

Appellant first argues that the court erred in admitting evidence taken from him and statements made by him on the ground that these should have been suppressed as the fruits of an unlawful, warrantless arrest unsupported by probable cause. We do not agree.

When an adequate opportunity to obtain an arrest warrant exists, the police are generally required to obtain a warrant. People v. Hoinville, Colo., 553 P.2d 777 (1976). ¹ However, exigent circumstances requiring immediate police action in order to protect the public safety will excuse the requirement of a warrant. People v. Hoinville, supra; DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972). Exigent circumstances clearly existed here where the defendant and his cohorts were armed and fleeing from the crime scene. Time was of the essence. The police officer had the choice of acting upon the information which he had obtained or of allowing the suspects to escape. In such circumstances, if probable cause exists, an immediate arrest may be made without resort to the time-consuming process incident to obtaining a warrant.

Even though exigent circumstances excuse the need to obtain an arrest warrant, in order for a warrantless arrest to be lawful, the arresting officer, at the time of the arrest, must have had probable cause to believe that an offense had been committed and that the defendant had committed it. Section 16-3-102, C.R.S.1973; People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).

Mere suspicion cannot support a finding of probable cause for a warrantless arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; See People v. Weinert, 174 Colo. 71, 482 P.2d 103, 104 (1977). Probable cause for arrest may be based on a combination of facts personally observed by the arresting officer and information relayed to him by fellow officers. People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974). The right of an officer to act upon information given to him by a fellow officer is premised upon the latter's possession of trustworthy information. People v. Corbett, Colo., 547 P.2d 1264 (1976). If, however, the fellow officer does not in fact possess reliable information, the arrest by another officer, which has been predicated upon an unfounded belief that probable cause exists, cannot stand after the fellow officer's information is shown to have been unreliable.

Applying these principles to the present case, we next consider whether Dorn, the arresting officer, had probable cause to arrest Saars without a warrant. In making this determination we must consider not only the legal rules involved, but also their practical application to everyday law enforcement routines.

"In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).

Prior to the arrest, Dorn had received from fellow officers detailed descriptions of the suspects and their two vehicles. These descriptions had been given by Weidmaier to the officers who relayed them to Dorn. At the time of the arrest, Officer Dorn personally observed the two suspect vehicles and several suspects at a residence. Since the facts observed by Dorn personally were not sufficient, in and of themselves, to constitute probable cause for arrest, the validity of the arrest depends on the trustworthiness of the information provided to Dorn's fellow officers by Weidmaier and then relayed to Dorn.

The appellant attacks the use of Weidmaier's information as the foundation for a finding of probable cause by noting that the police did not take time to inquire into Weidmaier's background to determine if he was credible, and did not attempt to corroborate or confirm the reliability of the information he had furnished.

The People respond by arguing that Weidmaier was not only an eye-witness to the crimes but a "citizen informant," and therefore no such investigation of his credibility nor the reliability of his "tip" was required. They point out that he took no part in the crimes. While admitting that he had voluntarily accompanied the Saars group to the apartment, the People assert that Weidmaier had no reason to expect that Saars and his companions would commit the crimes which occurred. In a practical sense, they contend, Weidmaier was a prisoner at the apartment. Thus for purposes of evaluating the reliability of the information he supplied the police, the People argue that Weidmaier should be considered a "citizen informant," who is presumed credible and whose information is presumed reliable.

In People v. Hubbard, 184 Colo. 225, 228-29, 519 P.2d 951, 953 (1974), we recognized the rule that:

". . . when the source of the information is a citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the informant or the reliability of his information."

A citizen eye-witness who, with no motive but public service, and without expectation of payment, identifies himself and volunteers information to the police, has inherent credibility. Therefore the usual requirement of showing prior reliability when police act on an informant's tip does not apply in these circumstances. People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971).

Thus we must determine whether Weidmaier can be characterized as a citizen-informant within this rule. Although Weidmaier led the defendant to the apartment initially, his purpose was to participate in a narcotics purchase and he had neither any connection with the violent crimes which followed nor any reason to anticipate them. He escaped and voluntarily contacted the police as soon as he was able, openly identified himself and relayed his information without any motive of revenge or desire to receive either payment or concessions from the police. In fact Weidmaier's actions jeopardized his own position, for he was then on probation for an unrelated offense. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We hold, therefore, that Weidmaier clearly fell within the status of a citizen-informant. Thus his credibility and the reliability of his information were sufficient, as a matter of law, to justify the police action. People v. Hubbard, supra; People v. Glaubman, supra.

In our view, the facts the arresting officer personally observed, combined with reliable information conveyed to him by fellow officers, were sufficient to warrant a reasonably cautious and prudent police officer to believe, in light of his training and experience, that an offense had been committed and that the appellant probably had committed it....