dissenting.
I respectfully dissent
Because I am unaware of any authority which legitimizes a warrantless arrest based upon the fellow officer rule when the factual predicate necessary to create probable cause was unknown to the fellow officer at the time he requested the arrest, I would hold the arrest of defendant to be illegal and would suppress the evidence that flowed therefrom.
It is undisputed that at the time Officer Gallo arrested the defendant he was without any personal knowledge sufficient to constitute probable cause. Therefore, if the warrantless arrest is to be sustained, it must be justified under the fellow officer rule.
However, at the time Officer Gallo received Officer Eggleston’s radio call, it is conceded that she did not have probable cause to arrest, nor did she request that the individual she had seen in the alley be arrested. Rather, she reported only that “a possible theft or burglary suspect” was running westward. Even if I were to assume that this report would have justified Officer Gallo in making an investigatory stop, it clearly did not justify the immediate arrest of defendant.
In People v. Hazelhurst, 662 P.2d 1081 (Colo.1983), the court held that: “The fellow officer rule is not a means to create probable cause by using ‘post hoc’ combinations of information available to the police.” Indeed, as the court there again emphasized: “[A]n officer who has probable cause to arrest a suspect, may request that a fellow officer make the arrest....” (emphasis supplied)
Here, it is not seriously disputed that at the time Officer Eggleston reported “a possible theft or burglary suspect,” she neither claimed nor professed to have probable cause to arrest the possible suspect.
Furthermore, even if we were to assume that the “post hoc” discovery of the contents of the bag by some mysterious manner became part of the collective knowledge of the police as a whole at the time of the request for stop, mere suppression based upon viewing the contents of the bag did not meet the standard for a warrantless arrest based upon probable cause. See People v. Quintero, 657 P.2d 948 (Colo. 1983); People v. Schreyer, 640 P.2d 1147 (Colo.1982).
Finally, I am not persuaded that the advisement given to the defendant regarding his right to testify is constitutionally adequate to avoid reversal as plain error under the principles of People v. Curtis, 681 P.2d 504 (Colo.1984).
The totality of the trial court’s advisement was:
All right. Mr. Barros, under the Constitutions of the United States and Constitution of the State of Colorado, you have the right to testify if you want to. You also have the right not to testify. And whether or not you testify is your decision and your decision alone. While you, I’m sure, have talked with your attorney and can talk with him more, you should understand that the decision is entirely up to you.
Thereafter, defendant chose not to testify.
This record does not demonstrate that defendant voluntarily, intelligently, and knowingly waived his right to testify, cf. People v. McMullen, 738 P.2d 23 (Colo. App.1986), nor does it contain an adequate Curtis advisement as was given in Roelker v. People, 804 P.2d 1336 (Colo.1991).
Further, it does not comport with the Roelker restrictive holding that “the actual holding in Curtis limits the trial judge’s responsibility to advising the defendant of his right to testify and the consequences of doing so.” The trial court clearly failed to do the latter, and the record does not cure that failure.
Therefore, I would reverse and remand for a new trial consistent with the views expressed in this dissent.