People v. Washington

• Decision Date: 24 January 1994
• Docket Number: No. 93SA176,93SA176
• Citation: 865 P.2d 145
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Wilbert WASHINGTON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 145

865 P.2d 145

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Wilbert WASHINGTON, Defendant-Appellee.

No. 93SA176.

Supreme Court of Colorado,

En Banc.

Jan. 24, 1994.

A. William Ritter, Jr., Dist. Atty., Second Judicial District, Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, State Public Defender, Theodore Stavish, Deputy State Public Defender, Denver, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The People bring this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), seeking reversal of the trial court's ruling suppressing evidence discovered during a post-arrest search of the defendant's person. The trial court found that there was no indication that the defendant had solicited the purchase and sale of crack cocaine from an undercover police officer in violation of section 18-2-301, 8B C.R.S. (1986), and that therefore the police lacked probable cause to arrest the defendant. For the reasons stated below, we reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

I

At the suppression hearing on June 15, 1993, the trial court heard testimony from Officer Norman Pressley (Pressley) of the Drug Control Bureau of the Denver Police Department and from Wilbert Washington (the defendant). The trial court resolved the conflict between the testimony of the two witnesses by adopting Pressley's testimony in its order. The following facts were established.

On December 22, 1992, Pressley, operating undercover, arrived at 4172 Steele Street, a residence under investigation for the distribution and sale of crack cocaine. Two other officers stationed nearby used a recording device attached to Pressley to monitor his conversations within the house and had orders to intervene upon hearing a "buzz signal" indicating that Pressley needed assistance.

Responding to Pressley's knock on the rear door of the residence, Sherman Banks (Banks) invited Pressley inside and asked him if he was interested in purchasing some "tight white," a street term for crack cocaine. Pressley responded affirmatively. When Pressley entered the residence, two individuals were present besides Banks--the defendant and Charles Allison (Allison), both of whom were sitting on a couch in the living room. Pressley informed Banks that he wanted to purchase an ounce of crack cocaine, to which Banks replied that he could arrange for Pressley to purchase an ounce at the low price of $900.

Pressley told Banks that he felt uncomfortable having other people (referring to the defendant and Allison) in the house during the transaction. Banks responded that they were "cool" and could be trusted and that Allison was his nephew. Banks then introduced Pressley to the defendant and Allison. At this point, Banks told Pressley that he had to leave the room to use the telephone to contact his sources and that it would probably take an hour to obtain the crack cocaine.

While Banks was on the telephone, Pressley entered into a conversation with the defendant and Allison. Pressley told them that he was selling a large quantity of crack cocaine in Boulder. The defendant responded that he was trying to expand his own business in crack cocaine and that he formerly supplied and distributed drugs for the "Crips," a well-known gang organization. He also stated that he could offer a better price for the crack cocaine than the rate Pressley was paying to Banks. When Pressley appeared receptive to the offer, the defendant told him that his street name was "Curls" and wrote down his phone number. The defendant told Pressley that if he called him at that number and asked for "Curls," they could deal directly and Pressley could get several ounces of crack cocaine at a lower price than that offered by Banks.

Soon thereafter, the defendant and Allison left the residence. As a parting statement, the defendant told Pressley that he expected Pressley to call him so that the two could establish a business relationship. Minutes after leaving, the defendant and Allison apparently turned around and started to walk back towards the residence in question.

At this point, Banks' supplier, Calby Arnold (Arnold), arrived at the back door of the residence. Pressley recognized Arnold from previous transactions and knew that Arnold could identify him as an undercover police officer. Although Arnold did not tell Banks about Pressley, he made gestures to Banks with his eyes and began to leave the premises. Pressley immediately gave the "buzz signal" to the officers monitoring the events, ordering them to apprehend the suspects departing from that location. The officers arrested all those inside the residence, including Pressley, and those who had recently departed, including the defendant and Allison. When the police searched the defendant incident to the arrest, they discovered 8.66 grams of cocaine in his pocket.

The district attorney subsequently charged the defendant with unlawful distribution, manufacturing, dispensing, sale and possession of a controlled substance pursuant to sections 18-18-203 to -207 and 18-18-405, 8B C.R.S. (1993 Supp.). The defendant moved to suppress the cocaine seized during the post-arrest search of his person on grounds that he had been "searched without probable cause or a valid exception to the requirement of probable cause." At the suppression hearing the trial judge and the parties agreed that the sole issue in controversy was whether the police had probable cause to arrest the defendant.

At the conclusion of the hearing, the trial judge found that "[t]here's no indication of any kind that Mr. Washington was attempting to induce [Pressley] to do anything other than that which he pretended to already be doing, namely, dealing drugs, therefore, there's no probable cause." When the deputy district attorney inquired as to when an offer to sell drugs would become a solicitation for purposes of section 18-2-301, ¹ the trial court indicated that a solicitation occurs when the conduct in question amounts to an "attempt," that is, where there is more than "mere preparation." The trial court concluded that although probable cause existed to arrest Banks and Arnold, because the conversation between Pressley and the defendant did not constitute a solicitation, there was no probable cause to arrest the defendant.

II

To be valid, an arrest must be supported by probable cause. People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990). The burden of proof is on the prosecution to establish probable cause to support a warrantless arrest. People v. Tufts, 717 P.2d 485, 491 (Colo.1986). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to support a reasonable belief that a crime has been or is being committed by the person arrested. People v. Diaz, 793 P.2d 1181, 1183 (Colo.1990); Tufts, 717 P.2d at 491. In determining whether there is probable cause to arrest, the totality of facts and circumstances known to the officer at the time of arrest must be considered. ² Diaz, 793 P.2d at 1183.

As the term suggests, probable cause deals with probabilities, not certainties, and it is sufficient if the officer reasonably believed that the person arrested committed a crime. Tufts, 717 P.2d at 491. Although we will not ordinarily disturb a trial court's finding that probable cause to arrest was lacking, id., the record compels the conclusion that the prosecution met its burden in this case. Cf. People v. Rayford, 725 P.2d 1142, 1146-48 (Colo.1986) (reversing trial court's finding that arrest not supported by probable cause); Tufts, 717 P.2d at 491-92 (same).

The trial court based its suppression order on the fact that, in its view, the defendant's conduct fell short of establishing his guilt under the solicitation statute. ³ Proof of guilt is not the correct legal standard. The United States Supreme Court has long held that " 'the term 'probable cause' ... means less than evidence which would justify condemnation.' " United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965) (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364 (1813)); Brinegar v. United States, 338 U.S. 160, 172-174, 69 S.Ct. 1302, 1309-10, 93 L.Ed. 1879 (1949) (discussing the "difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt"). In fact, "[t]he amount and quality of information necessary for probable cause to make a warrantless arrest is neither greater nor less than that needed for a magistrate to...