People v. Roybal , 1982 Colo. LEXIS 767 ( 1982 )

LOHR, Justice.

The prosecution brings this interlocutory appeal from an order of the Denver District Court suppressing certain statements made by the defendant from use as evidence in his forthcoming trial on the charge of vehicular assault, section 18-3-205, C.R.S.1973 (1978 Repl.Vol. 8). We affirm in part and reverse in part.

The defendant, Andrew Roybal, was the driver of an automobile that was involved in a collision with another car at 18th Avenue and Logan Street in Denver in the early morning hours of May 3, 1980. Officer Eaton of the Denver Police Department, one of the investigating officers, was the sole witness at the suppression hearing and gave the following account of the events. Roybal’s car was at the scene, but he was absent, when the officers arrived. During the course of the investigation the defendant returned and advised the officers that he was the driver of one of the vehicles and had left the scene earlier to call the police. Officer Eaton noticed an odor of alcoholic beverage about the defendant. The officers placed him in a police car, where one policeman advised him of his Miranda¹ rights. Thereafter, while in the squad car at the accident scene, the defendant gave a written statement about the collision and his activities leading up to it.

The defendant was charged with vehicular assault, driving under the influence of intoxicating liquor and a narcotic drug,² and reckless driving.³ The latter two charges were dismissed on the motion of the prosecution on the day set for trial.

The defendant moved to suppress all his statements relating to the incident on the ground, among others, that they were the products of an illegal arrest. This motion was heard immediately in advance of the scheduled trial. After hearing the evidence, the trial court suppressed the statements as the products of an arrest that violated the defendant’s constitutional rights because it was not supported by probable cause to believe the defendant had committed a crime. The prosecution challenges that ruling on two bases. First, it contends that the trial court erred in concluding that there was no probable cause to arrest the defendant. Second, the People argue that even if the arrest was unconstitutional the defendant’s verbal statement when he first returned to the accident scene preceded the arrest and should not have been suppressed. We agree with the second argument but not with the first. We begin by addressing that second contention.

I.

Although the minute order based on the suppression hearing reflects that the defendant’s motion to suppress was granted in its entirety, it is apparent from the transcript of the hearing that the trial judge focused on the written statement alone in making his ruling. A motion for clarification of the order most likely would have eliminated any need to appeal the suppression of the oral statement.

Officer Eaton’s testimony is undisputed and unequivocal that, before the officers spoke to the defendant, Roybal approached them and volunteered that he was the missing driver. There is no support in the record for a conclusion that the defendant was in custody or under restraint of any kind when he made the oral statement. The sole basis on which the trial court grounded its suppression order was that the statements were products of an illegal arrest. As the evidence is undisputed that the oral statement preceded the defendant’s arrest, the order suppressing that statement must be reversed.

II.

The People concede that Roybal was in custody when he gave his written statement and do not argue that the statement was not the product of that detention. Rather, the prosecution bases its argument for reversal on the assertion that, contrary to the court’s ruling, there was probable cause to take the defendant into custody for the purpose of determining accurately the alcoholic content of his blood.⁴

The evidence at the suppression hearing was scanty. When the officers arrived at the scene they discovered that a driver was absent. After the officers began their investigation, the defendant appeared, volunteered that he was the missing driver, and stated that he had left the scene to call the police. Officer Eaton remembered that it was a “pretty serious accident”⁵ and that the defendant had “an odor of alcoholic beverage about him.” When questioned in detail by defense counsel, the officer said that Roybal “appeared coherent,” “seemed to walk in a fairly normal manner, didn’t have any problems talking or anything,” and seemed to understand the questions asked during the Miranda advisement. In the course of that questioning the following exchange took place:

Q: As I understand your testimony, other than just an odor of alcohol, nothing about him indicated to you he was intoxicated.

A: Well, I didn’t say he didn’t indicate to me he wasn’t [sic] intoxicated. I just said he appeared in a fairly normal manner, not what would you say overly drunk.

It is not entirely clear whether the People concede that the defendant was under arrest when he gave his written statement or whether by describing the custody as accomplished for the purpose of determining accurately the alcoholic content of his blood they are asserting that this was only an investigatory stop. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). It appears from the record, however, that the defendant remained in custody after his questioning and was transported “downtown” in handcuffs for the purpose of administering a blood alcohol test. There is no indication in the record that the decision of the police to perform the blood alcohol test was dependent in any way upon his responses to the questioning in the squad car. Whenever detention and questioning by a police officer are more than brief and cursory there is an arrest, which must be supported by probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); People v. Schreyer, 640 P.2d 1147 (Colo.1982);⁶ People v. Tooker, 198 Colo. 496, 601 P.2d 1388 (1979). We believe the trial court correctly concluded that the defendant’s detention was an arrest, not an investigatory stop, so the standards to test the constitutional validity of a brief investigatory stop are not applicable here. See generally People v. Sehreyer, supra.

To pass constitutional muster, an arrest must be supported by probable cause. E.g., People v. Gomez, 193 Colo. 208, 563 P.2d 952 (1977). Probable cause to arrest exists when “facts available to a reasonably cautious officer at the moment of arrest would warrant his belief that an offense has been or is being committed” by the person to be detained. People v. Navran, 174 Colo. 222, 225, 483 P.2d 228, 230 (1971); accord, e.g., People v. Schreyer, supra; see section 16-3-102, C.R.S.1973 (1978 Repl.Vol. 8). The burden of proving facts constituting probable cause to arrest without a warrant is on the prosecution. E.g., People v. Eichelberger, 620 P.2d 1067 (Colo.1980); People v. Gomez, supra.

The record is barren of evidence that the collision occurred as a result of misconduct by the defendant. All that we learn from the record is that an accident took place, the defendant was driving one of the cars involved, and he had an odor of alcoholic beverage about him. Although the officer’s testimony and his decision to administer a blood alcohol test are suggestive of an opinion that the defendant was under the influence of alcohol, the single objective fact to which he testified in support of any such conclusion is the odor of alcoholic beverage.⁷ An odor of alcoholic beverage is not inconsistent with ability to operate a motor vehicle in compliance with Colorado law. See section 42-4-1202(2)(a), C.R.S.1973 (1978 Repl.Vl. 8) (1982 Supp.). The prosecution argued to the trial court that the driving, the accident and the odor of alcoholic beverage taken together are enough to establish probable cause. Under the circumstances here, including the lack of any indication that the defendant was at fault in causing the collision, and officer Eaton’s testimony reflecting that he observed none of the common indicia of intoxication in the defendant’s speech, walk, and ability to understand, we agree with the trial court that the People did not carry their burden to prove the existence of probable cause.⁸ Therefore, we affirm the trial court’s order suppressing the written statement from use as evidence at the defendant’s trial.

We affirm in part, reverse in part, and remand the case for further proceedings.

ROVIRA, J., dissents, and LEE, J., joins in the dissent.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Section 42-4-1202(l)(a) and (l)(c), C.R.S. 1973.

3 .Section 42-4-1203(1), C.R.S.1973 (1982 Supp.).

4 . We understand the People’s argument to be that there was probable cause to believe the defendant was under the influence of intoxicating liquor when he drove his vehicle, in violation of section 42-4-1202(l)(a), C.R.S.1973 (1978 Repl.Vol. 8).

5 . This is the extent of the evidence about the nature of the collision. As a result of the accident, the defendant was charged with causing serious bodily injury to a victim.

6 .In Dunaway v. New York, supra, the United States Supreme Court recognized that whether a “seizure” has taken place for Fourth Amendment purposes is not dependent on the definition of “arrest” under state law. 442 U.S. at 212, 99 S.Ct. at 2256, 60 L.Ed.2d at 836. In People v. Sehreyer, supra, we implicitly treated an arrest under Colorado law as equivalent to a Fourth Amendment seizure. See section 16-3-102, C.R.S.1973 (1978 Repl.Vol. 8).

7 . We find Eaton’s testimony that the defendant was not “overly drunk,” taken together with that officer’s statements that Roybal exhibited no significant problems in ability to walk, talk and understand, to be too ambiguous to be equated with an opinion that the defendant was under the influence of intoxicating liquor.

8 . The prosecution has cited no case in which an odor of alcoholic beverage, without more, has been held to constitute probable cause to believe a person is under the influence of intoxicating liquor. Compare People v. Smith, 175 Colo. 212, 486 P.2d 8 (1971) (probable cause found to arrest driver who had an accident after driving in excess of eighty miles an hour where an odor of alcoholic beverage was present in the car and on the breath of several of the other occupants, but was not detected on the driver); Hall v. Charnes, 42 Colo.App. III, 590 P.2d 516 (1979) (there were reasonable grounds to believe driver was under the influence of alcohol where his auto was weaving and speeding, there was an odor of alcoholic beverage on his breath, and he did not satisfactorily perform roadside sobriety test); and Gilbert v. Dolan, 41 Colo.App. 173, 586 P.2d 233 (1978) (there were reasonable grounds to believe a driver was under the influence of alcohol where he drove erratically, had a strong odor of alcoholic beverage on his breath, slurred speech, a staggered walk, and other indicia of intoxication) with Lucero v. Charnes, 44 Colo.App. 73, 607 P.2d 405 (1980) (no reasonable grounds to believe defendant was under influence of alcohol based on involvement in accident and having bloodshot, watery eyes). See generally People v. Helm, 633 P.2d 1071 (Colo.1981).