People v. Mitchell , 1984 Colo. LEXIS 504 ( 1984 )

QUINN, Justice.

The People in this interlocutory appeal challenge a ruling of the district court suppressing a vial of cocaine seized from the defendant, Robert D. Mitchell, in the course of a search incident to an arrest based on an erroneously issued arrest warrant for an unpaid traffic fine. The district court held that the arrest warrant was void from the time of its issuance, thereby rendering the arrest and search illegal and requiring the suppression of the evidence seized incident to the arrest. We affirm the suppression ruling.

I.

The pertinent facts are not in dispute. On December 18, 1982, Officer Mark Sigler of the Greenwood Village Police Department stopped the defendant for driving seventy-five miles per hour in a fifty-five mile zone. The officer took the defendant’s driver's license and, in keeping with routine procedure, went back to his police vehicle in order to inquire of the police dispatcher whether there were any outstanding warrants for the defendant. The dispatcher scanned a computer screen and informed Officer Sigler that there was an outstanding Greenwood Village arrest warrant for the defendant’s failure to pay a previous traffic fine. The dispatcher then manually examined the warrant file at the police station and confirmed the outstanding arrest warrant for the defendant.

Officer Sigler arrested the defendant on the outstanding warrant and took him to the Greenwood Village police station where he was searched. A small cylindrical vial containing cocaine was seized from one of the defendant’s pockets, and the defendant was charged with possession of a controlled substance.¹ It was later determined that the Greenwood Village warrant had been issued in error, since the defendant had actually paid the traffic fine prior to the issuance of the warrant.

The defendant filed a motion to suppress. Conceding that the initial stop for speeding was valid, the defendant asserted that the seizure of the cocaine was the product of an unconstitutional arrest based on an invalid arrest warrant. The People acknowledged at the suppression hearing that the defendant had timely paid the traffic fine and that the Greenwood Village warrant had been issued in error. The district court ruled that the defendant’s arrest was based on a warrant that was void from its issuance and accordingly suppressed any evidence seized from the defendant at the station house as the product of an unconstitutional arrest.²

The People challenge the suppression ruling on the basis of section 16-3-308, C.R.S.1973 (1983 Supp.), which provides that evidence otherwise admissible in a criminal proceeding shall not be suppressed when seized by a peace officer as a result of a “good faith mistake” or “technical violation.” The defendant, in contrast, contends that an arrest based upon an invalid warrant does not qualify as a “good faith mistake” or “technical violation” within the meaning of section 16-3-308. We conclude that section 16-3-308 does not apply to an arrest based on a warrant void from its inception due to the absence of any cause whatever for its issuance.

II.

The constitutional proscription against an unlawful seizure of the person serves as the starting point of our analysis. Both the United States and Colorado, Constitutions require that an arrest warrant be founded on probable cause, supported by oath or affirmation, particularly describing the person to be seized. U.S. Const. Amend. IV; Colo. Const. Art. II, Sec. 7.

In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court addressed this constitutional requirement of probable cause under circumstances somewhat similar to those present here. In Whiteley, the sheriff of Carbon County, Wyoming, acting on a tip, signed a conclusory complaint reciting nothing more than that Harold Whiteley and Jack Daley unlawfully broke into and entered a building identified as the Rustic Bar in Saratoga, Wyoming, on November 23, 1964. A justice of the peace issued an arrest warrant based on the complaint, and the sheriff then issued a police radio bulletin describing the two men, the type of car they were driving, and the amount and type of money taken in the crime. A police officer in another county, relying on the bulletin, made a warrantless arrest of Whiteley and Daley when he saw them in the described vehicle. The officer searched the vehicle and seized various incriminating items, including some coins taken in the crime. The Supreme Court held that the arrest and the seizure of evidence incident thereto violated the Fourth Amendment because, first, the complaint was factually insufficient to support an independent judgment that probable cause existed for the warrant, and, second, the arresting officer had no information to corroborate the report that the suspect had committed the crime. The Court then addressed the state’s contention that the police bulletin itself was sufficient to validate the arrest:

“We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” 401 U.S. at 568, 91 S.Ct. at 1037, 28 L.Ed.2d at 313.

While this language may suggest that an arresting officer acting on a police bulletin “should not be held personally responsible in a civil action or disciplinary proceedings if it turns out that there was no probable cause at the source,” there can be no doubt that Whiteley requires the suppression of evidence seized by the arresting officer “if facts adding up to probable cause were not in the hands of the officer or agency which gave the order or made the request.” 1 W. LaFave, Search and Seizure § 3.5 at 623-24 (1978); see People v. Gouker, 665 P.2d 113 (Colo.1983) (existence of an outstanding arrest warrant provides a prima facie showing of probable cause, but person arrested may challenge warrant’s validity at suppression hearing). Whiteley applies with even stronger force to evidence seized as the result of an arrest based solely upon a warrant that is totally lacking in any factual support for its issuance. See People v. Decuir, 84 Ill.App.3d 531, 39 Ill.Dec. 912, 405 N.E.2d 891 (1980) (Whiteley requires suppression of evidence seized in arrest resulting from mistaken dispatch that arrest warrant still outstanding, when in fact warrant had been quashed long before arrest); People v. Jennings, 54 N.Y.2d 518, 522, 430 N.E.2d 1282, 1285, 446 N.Y.S.2d 229, 231-32 (1981) (“in making an arrest a police officer may rely upon information communicated to him by another police officer ... that an individual is the subject named in a warrant and should be taken into custody [, but] if ... the warrant turns out to be invalid, any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer’s reliance upon the communication”).

In arguing that the defendant’s arrest was constitutionally valid, the People rely primarily on Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). We find this reliance misplaced. In Hill, police officers, having probable cause to arrest Hill for robbery, went to his apartment where they were met by a man who matched Hill's description but who identified himself as Miller and told the officers that he was waiting for Hill’s return. The officers believed Miller was in fact Hill, arrested him, searched the apartment, and seized guns, stolen property, and other evi-dentiary items. Hill was ultimately charged and convicted of robbery. The Supreme Court upheld the search of Hill’s apartment as incident to a valid arrest because the officers reasonably believed Miller to be Hill and probable cause existed for Hill’s arrest:

“[T]he officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief could not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.” 401 U.S. at 803-04, 91 S.Ct. at 1110-11, 28 L.Ed.2d at 490.

The decision in Hill, which obviously-turned on the existence of probable cause to make an arrest in the first instance, did not address the issue of the validity of an arrest pursuant to a warrant unsupported by probable cause, whereas Whiteley expressly resolved that precise issue. Since the issue raised on this appeal also involves the validity of an arrest based on a warrant erroneously issued and unsupported by probable cause, Whiteley is the controlling precedent. See Sanders v. United States, 339 A.2d 373, 379 (D.C.Ct.App.1975) (Whiteley applies where “there is an infirmity inherent in the foundation of the warrant,” such as an insufficient affidavit; Hill, in contrast, applies where the arrest warrant is constitutionally valid and the police, acting “in good faith” and with “reasonable, articulable grounds to believe that the suspect is the intended arrestee,” arrest an individual “other than the one against whom the warrant is outstanding”).³

The People in this case concede that the defendant’s arrest was based solely on Officer Sigler’s reliance upon the dispatcher’s message that there was an outstanding warrant for the defendant. Because Officer Sigler had no other information before him that might otherwise support the arrest, we are left with the question whether section 16-3-308, which creates the “good faith mistake" and “technical violation” exceptions to the exclusionary rule, is applicable to the factual circumstances disclosed by the record before us. It is to this question that we now turn.

III.

Section 16-3-308, C.R.S.1973 (1983 Supp.), states, in pertinent part, as follows:

“(1) Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as defined in section 18 — 1—901(3)(Z), C.R.S., as a result of a good faith mistake or of a technical violation.

“(2) As used in subsection (1) of this section:

(a) ‘Good faith mistake’ means a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.

(b) ‘Technical violation’ means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.”

In this case we are not dealing with the issue of whether section 16-3-308 is reconcilable with federal and state constitutional guarantees against unreasonable searches and seizures. U.S. Const. Amend. IV; Colo. Const. Art. II, Sec. 7. To date, the United States Supreme Court has declined to sanction police intrusions that are otherwise constitutionally deficient solely because a police officer reasonably and in good faith believed his conduct comported with probable cause. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); see People v. Quintero, 657 P.2d 948 (Colo.1983), cert. granted sub nom. Colorado v. Quintero, — U.S. -, 103 S.Ct. 3535, 77 L.Ed.2d 1386, cert. dismissed, — U.S.-, 104 S.Ct. 543, 78 L.Ed.2d 719 (1983).⁴ The only issue raised on this appeal is whether, constitutional issues aside, the evidence at the suppression hearing established that Officer Si-gler’s arrest of the defendant and his subsequent seizure of cocaine from the defendant’s person resulted from a “good faith mistake” or a “technical violation” as these terms are defined in section 16-3-308(2). We conclude that the record before us is insufficient to satisfy either of these statutory exceptions to the exclusionary rule.

A.

Section 16-3-308(2)(a) defines a “good faith mistake” as “a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.” This statutory definition restricts “good faith mistake” to mistakes based on reasonable judgmental errors of fact rather than mistakes of law. Indeed, it has been observed that it would be extremely difficult to determine what constitutes a reasonable mistake of law, requiring as it would an inquiry into “objective extrapolations of existing law” and “inferences from existing law” that an officer should have drawn. 1 W. LaFave, supra at § 1.2 at 15 (Supp.1984). In the case of an arrest warrant, the statutory definition of “good faith mistake” is apparently intended to include reasonable judgmental errors of fact made by an officer in applying for or in executing a warrant, see People v. Quintero, supra, or similar factual errors made by a court in issuing a warrant. Viewed in this light, the statutory definition of “good faith mistake” serves to make explicit what is already implicit in federal exclusionary rule doctrine. See Hill v. California, supra (arrest and ensuing search upheld when police had probable cause to arrest Hill but arrested Miller instead, due to reasonable mistake as to identity of person arrested).⁵

In this case there is no evidence of any “good faith mistake” on the part of Officer Sigler in arresting the defendant. The officer had been informed by the police dispatcher that there was an outstanding warrant for the defendant, and this information was true. Unknown to the officer, however, the warrant had been improperly issued as a result of some mistake on the part of the Greenwood Village Municipal Court. Because no evidence was presented at the suppression hearing with respect to the factual circumstances underlying the issuance of the warrant, the record obviously is silent on the particular source or character of this mistake. Without such a factual predicate there is no basis to conclude that the warrant was issued as the result of some reasonable judgmental error concerning the existence of facts which if true would have constituted probable cause to arrest the defendant. Simply stated, the statutory definition of “good faith mistake” in section 16-3-308(2)(a) has no application to the facts of this case.

B.

A “technical violation,” as defined in section 16-3-308(2)(b), means “a reasonable good faith reliance upon ... a warrant which is later invalidated due to a good faith mistake_” This statutory definition expressly incorporates the definition of “good faith mistake” in subsection 16-3-308(2)(a) — that is, “a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.” Here again, there is nothing in the record even suggesting that the cause of the warrant’s invalidation was due to some “good faith mistake” on the part of the issuing court.

On the contrary, the warrant was void not because the facts supporting it fell somewhat below the constitutional threshold of probable cause, but, so far as the record shows, because there were no facts at all to support its issuance. Whatever the outer limit of the “technical violation” exception might be, we are satisfied that it was not intended to encompass an arrest warrant that is totally devoid of any factual support and comes into being only as the result of some unexplained mistake on the part of the issuing court. The defect in such a warrant is a fundamental one, far beyond the purview of a “technical violation.”

IV.

The arrest of the defendant on the basis of an erroneously issued arrest warrant violated the Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution. As defined in section 16-3-308, neither the “good faith mistake” nor “technical violation” exceptions to the exclusionary rule are applicable to the facts of this case. The district court, therefore, properly suppressed the evidence seized from the defendant as the product of an unconstitutional arrest.

The suppression ruling is accordingly affirmed.

ROVIRA, J., dissents.

1 . Sections 12-22-310(l)(a)(V), C.R.S. 1973 (1983 Supp.), and 18-18-105(l)(a), C.R.S. 1973 (1983 Supp.).

2 . The district court ruled, in pertinent part, as follows:

"The information received by Officer Sigler through the computer was erroneous material, and [had] the correct information be[en] supplied to Officer Sigler, the normal course of events would have been that he would have issued a traffic summons to Mr. Mitchell to appear in court for violating the speeding law, and Mr. Mitchell would [have] been on his way.

"However, the information received by Officer Sigler was incorrect, although the officer was perfectly within his rights to act on the incorrect information.... The warrant that caused Mr. Mitchell's arrest should never have been issued, and therefore was void ,.. ab initio.

"In view of the fact that the arrest warrant was void ... ab initio, the taking of Mr. Mitchell into custody was improper. The search at police headquarters was improper, and any information or substances obtained from that search are the results of an improper arrest and are hereby suppressed."

3 . Contrary to the People’s argument, we also find Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), inapplicable to the circumstances of this case. DeFillippo involved the seizure of illegal drugs incident to an arrest under a Detroit ordinance requiring a person lawfully stopped by a police officer to identify himself. Although the ordinance was subsequently found to be unconstitutionally vague, the Supreme Court upheld the seizure of the illegal drugs because the officer had probable cause to arrest DeFillippo for violation of the ordinance and its subsequent invalidation did not affect the legality of that arrest.

4 . Currently, the United States Supreme Court has before it on certiorari two cases raising issues concerning the adoption of a good faith exception to the exclusionary rule. United States v. Leon, 701 F.2d 187 (9th Cir.1983), cert. granted, — U.S.-, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983); Commonwealth v. Sheppard, 387 Mass. 488, 441 N.E.2d 725 (1982), cert. granted sub nom. Massachusetts v. Sheppard, — U.S. -, 103 S.Ct. 3534, 77 L.Ed.2d 1386 (1983).

5 . With respect to section 16-3-308(2)(b), which includes within the definition of "technical violation” a good faith reliance on a statute later ruled unconstitutional and a good faith reliance on a court precedent later overturned, the United States Supreme Court has already accommodated the former situation (an arrest and incidental seizure of evidence stemming from a statute later declared unconstitutional) to exclusionary rule doctrine by upholding such action as long as the arrest was based on probable cause. Michigan v. DeFillippo, supra note 3. The latter situation (intrusions resulting from reliance upon a court precedent later overruled) was also incorporated into exclusionary rule doctrine in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Peltier involved the stop and search of the defendant by a roving border patrol under circumstances which, as later determined in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), violated the Fourth Amendment. Because the roving border patrol search had been supported by longstanding administrative regulations and continuous judicial approval, the Court’s decision in Almeida-Sanchez invalidating the practice in question was a clear break with the past and under these circumstances was not given retroactive effect. While Fourth Amendment decisions are generally applied retroactively to convictions that are not yet final at the time the decision was rendered, this principle does not apply to a decision that represents "a clear break with the past” by overruling a past precedent, disapproving a practice sanctioned in prior cases, or overturning a longstanding practice which had received near unanimous approval by lower courts. United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). See also 3 W. LaFave, supra at § 11.5 at 273-74 (Supp.1984).