dissenting.
I respectfully dissent.
I accept the inference in the majority opinion that Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), leads to the conclusion that Gouker was under arrest during the police interrogation. However, I would hold that the police did have sufficient information linking Gouker to the crime to constitute probable cause to arrest him. Thus, incriminating evidence obtained as the result of the arrest should not be suppressed.
The young victim of the crime told the officers that she had been assaulted by a white male who said, “I’m your uncle and I know that your mother is Linda.” Linda was not the name of the victim’s mother; however, in the course of their investigation, the police learned that Gouker was related to a former inhabitant of the victim’s residence bearing that name. Based upon that information the police contacted Gouker, advised him of his Miranda rights, and interrogated him. Gouker elected neither to remain silent, nor to request that an attorney be appointed. Instead he made incriminating statements. Holding these statements to have been illegally obtained and therefore reversing the conviction serves unnecessarily to punish good, intelligent police work.
In my view it is necessary to balance conflicting interests in eases of this type: the risk of police interference with the liberty of innocent persons must be weighed against the public interest inherent in identifying violent criminals. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). See also 1 W. LaFave, Search and Seizure § 3.2 (1978).
The presence or absence of probable cause for an arrest must be determined according to the circumstances of each case. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974). Here, when the police contacted Gouker they were acting on “more than a bare suspicion” that he had committed the crime. Brinegar, supra. The focus of their inquiry was sufficiently narrow to minimize the risk of arresting an innocent person.
There is no constitutional requirement that information concerning the offender available to police at the time of arrest point exclusively to a single individual or that it be more probable than not that the suspect committed the crime. See 1 W. LaFave, Search and Seizure, supra. Indeed, to require such a degree of certainty would tend to equate the probable cause necessary to sustain an arrest with that probable cause required to charge a person with a crime.
A legitimate police function is served by permitting lawful custodial arrests where, as here, application of a balancing test reveals that police action was reasonable. The exclusionary rule is “not intended as a barrier to prevent the police from carrying out their functions and duties when the police action is reasonable.” People v. Eichelberger, Colo., 620 P.2d 1067 (1980).
Moreover, regardless of the correctness of the views expressed above, I do not agree with the conclusion of the majority that Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), requires suppression of in-court identification based upon the photographs taken of Gouker at the police station.
For these reasons, I would affirm the conviction.