People v. Vigil

• Citation: 729 P.2d 360
• Decision Date: 08 December 1986
• Docket Number: No. 84SA459,84SA459
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anna Irene VIGIL, a/k/a Anna Irene Martinez, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 360

729 P.2d 360

55 USLW 2355

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anna Irene VIGIL, a/k/a Anna Irene Martinez, Defendant-Appellee.

No. 84SA459.

Supreme Court of Colorado,

En Banc.

Dec. 8, 1986.

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for plaintiff-appellant.

David J. Mintz, Emerson B. Semple, Denver, for defendant-appellee.

LOHR, Justice.

The People appeal a judgment of the Adams County District Court dismissing an information charging the defendant, Anna Irene Martinez (Martinez), ¹ with possession of a schedule I controlled substance and distribution of a schedule I controlled substance. §§ 12-22-309, 5 C.R.S. (1985), and 18-18-105, 8B C.R.S. (1986). On a motion by the defendant, the district court ordered the People to produce a confidential informant at an in camera hearing. When the prosecution refused to comply with this order, the district court dismissed the case. We hold that the district court acted within its discretion in ordering the production of the confidential informant. Therefore, we affirm the judgment of dismissal.

I.

The district court required the production of the confidential informant in order to obtain information necessary to resolve motions to suppress evidence. Defendant Martinez's motion to suppress was predicated on the assertion that the Denver officers who arrested her had acted willfully and illegally in going outside Denver to accomplish the arrest in Adams County. The prosecution argued that the officers went to Adams County in response to a tip from a confidential informant and under circumstances calling for prompt action. Martinez questioned the existence of the informant. A summary of the relevant testimony is necessary to an understanding of the issues concerning the propriety of the order for production of the informant.

Officer Dennis Cribari of the Denver Police Department testified at the hearing on the motion for disclosure of confidential informant and described the events leading up to the arrest of Martinez. Cribari stated that he and Officer Larry Subia were in their unmarked police car in downtown Denver at about 3:00 p.m. on October 28, 1983, when Officer Subia received a message over his pager. ² The caller said that Rafael Kenneth Chavez (Chavez) was at the Mint Lounge at 8400 Washington Street. The caller did not identify himself, but Officer Subia recognized the voice as that of "an informant of his."

The officers were aware that there was an outstanding federal warrant for Chavez, and even though they knew that the Mint Lounge was located in the City of Thornton, in Adams County, they decided to check out the tip. They elected not to attempt to contact Thornton police authorities "and send them en route to the Mint Lounge on a hunch that [Chavez] may be there through the informant's information." While en route to the Mint Lounge, Officer Cribari contacted the National Crime Information Center in order to confirm a license plate number that he believed belonged to a black Pontiac Grand Prix owned by Martinez. Based on prior information, Officer Cribari knew that Chavez was a close associate of Martinez and may have been using one of her cars. ³

Officer Cribari specifically denied that the officers had kept Martinez under surveillance at any time on October 28. Martinez, however, produced several witnesses who testified to the contrary, stating that the officers had parked across from Martinez's house in northwest Denver near mid-day and had followed her vehicle when she left the house. This called into question Cribari's testimony concerning the circumstances that resulted in the officers' trip to the Mint Lounge.

Upon arriving at the Mint Lounge, Cribari testified, the officers drove slowly through the parking lot looking for either Chavez or one of the two vehicles they suspected he might be driving. The officers spotted Chavez and Martinez standing behind the black Grand Prix, conversing. Martinez handed Chavez what appeared to be a coin wrapper, ⁴ whereupon the officers got out of their car. When Chavez and Martinez saw the officers, Chavez fled. Officer Cribari pursued Chavez and a struggle ensued, during which Chavez dropped the coin wrapper. With Officer Subia's assistance, Officer Cribari was able to handcuff Chavez. Subia then showed Cribari a green balloon that Subia said Chavez had dropped sometime during the struggle. While Officer Cribari detained Chavez, Officer Subia retrieved the coin wrapper Chavez had dropped and found that it contained several balloons. The officers then handcuffed Martinez, and Officer Cribari watched the suspects while Officer Subia used his police radio to summon Thornton police. A Thornton police car arrived shortly thereafter. Officers Subia and Cribari transported Chavez to the Thornton police station, and the Thornton officers took Martinez to that same location. There, the suspects were searched and booked. Quantities of heroin were found in Martinez's possession.

The substance in the balloons also proved to be heroin, and both Chavez and Martinez were subsequently charged with possession and distribution of heroin. The defendants filed motions to suppress the evidence obtained as a result of their arrests, contending principally that the arrests were illegal because Officers Subia and Cribari were acting outside the physical limits of their jurisdiction in violation of section 16-3-106, 8A C.R.S. (1986). At the same time, the defendants filed motions for disclosure of the confidential informant. It was the defendants' position that the question of whether the confidential informant actually existed, what the informant may have said to the officers, and when the informant may have imparted the information all bore directly on whether Officers Subia and Cribari had complied with the statute and whether suppression of evidence should be ordered as a result of any noncompliance. The defendants maintained that those questions needed to be resolved so that a fair determination of their motions to suppress could take place.

Following testimony by witnesses and arguments by counsel, the trial court granted the defendants' motions for disclosure on the bases that disclosure of the informant was essential to resolve issues raised concerning the officers' credibility and that disclosure was absolutely necessary to protect the defendants' rights to due process of law and to confrontation. The court ordered that the prosecution produce the informant at an in camera hearing. Counsel for the defendants would be allowed to be present, but the defendants were neither to attend nor to be made privy to any information developed at the hearing. The prosecution refused to disclose the identity of the confidential informant, asserting a concern for the informant's safety, and the court dismissed the case against Chavez and Martinez. The prosecution appealed the dismissal to this court. During the pendency of this appeal, defendant Chavez died. Therefore, the case against Chavez became moot, and only the validity of the order of dismissal as to defendant Martinez remains to be resolved.

The People contend in their briefs on appeal, first, that the disclosure order was improper because even if the officers acted illegally in arresting Martinez outside their territorial jurisdiction, the illegality stemmed from a statutory violation and not a constitutional one. The exclusionary rule, they assert, can be invoked as a remedy for an infringement of constitutional rights, but "may not be appropriate" for a statutory violation. Martinez's interest in obtaining information about a possible statutory violation, therefore, "is not as crucial as in the case where constitutional rights are at stake." Second, the People urge that the defendant's interest in learning the identity of the informant is attenuated because any information the informant might possess would relate only to the circumstances giving rise to the officers' presence at the Mint Lounge and would be "substantially unrelated to the defendants' guilt or innocence." Finally, the People assert that no adequate factual basis has been established "to suggest that the informant did not exist or that he did not provide to the police the statements attributed to him by Detective Cribari." We first review the standards governing disclosure of informants and then consider the People's three interrelated arguments for reversal.

II.

A.

The law has long recognized the government's qualified privilege to choose not to disclose the identity of a person who has provided law enforcement officers with information concerning violations of law. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957); People v. Bueno, 646 P.2d 931, 935 (Colo.1982). The privilege exists in order to encourage citizens to perform their obligation to advise law enforcement officers of information concerning the commission of crimes. Roviaro v. United States, 353 U.S. at 59, 77 S.Ct. at 627; People v. McLean, 661 P.2d 1157, 1159 (Colo.1983).

The privilege, however, is not absolute. Although a defendant generally has no constitutional right to the disclosure of a confidential informant, McCray v. Illinois, 386 U.S. 300, 312-14, 87 S.Ct. 1056, 1063-1064, 18 L.Ed.2d 62 (1967), considerations of fundamental fairness sometimes require that the identity of such an informant be revealed. Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 627-628; People v. Dailey, 639 P.2d 1068, 1077 (Colo.1982). Therefore, "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure...." Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 627-628 (footnote omitted). Accord People v. Bueno, 646...