People v. McCoy

Chief Justice ROVIRA

dissenting:

I agree with the majority that specific information that a particular crime has been committed is not necessary to establish probable cause to execute a warrantless arrest. The majority, however, also holds that the police did not possess probable cause to arrest Vincent T. McCoy (McCoy).1 As a result of this decision, McCoy’s conviction for aggravated robbery is reversed and the ability of the People to retry McCoy will be severely hampered. This is so because the prosecution will be prohibited from introducing probative and crucial evidence such as: (1) the testimony of the owner of the jewelry store identifying the jewelry recovered in McCoy’s possession, and (2) the stolen jewelry that was found in McCoy’s possession. In addition, the prosecution may not be able to introduce the gun and jewelry found in McCoy’s hotel room.2 I do not think this outcome is either required or justifiable as I believe that there was probable cause to arrest McCoy, and that evidence derived from that arrest properly was admitted at trial.

I

On February 2, 1987, the “Pick Sadler” jewelry store in Cherry Creek was robbed at gunpoint by a young, short, stocky, black man. The robber escaped with approximately 130 pieces of jewelry worth as much as $130,000.

On February 18,1987, Sergeant Thompson (Thompson) of the New Orleans Police Department received a telephone call from a previously reliable confidential informant that a short, stout, black man approximately 25 years of age had approached him in the New Orleans central business district and attempted to sell him five pieces of expensive gold jewelry at prices much less than the obvious value of the jewelry. The informant had over forty years of experience in the gold business and estimated that the five pieces of jewelry were worth at least $25,000. Thompson relayed this information to Sergeant Gaudet (Gaudet) of the criminal investigations bureau of the New Orleans police department.

*1242The following day, Officer Miller (Miller) of the New Orleans police department received a telephone call from an employee of a reputable jewelry store located in the central business district of New Orleans. The caller identified himself to Miller3 and stated that a stocky black man in his mid-twenties had just been in the store with a large amount of very expensive jewelry which he had tried to sell at a very low price. Miller testified that the employee was suspicious because of the low price the man wanted for the jewelry, and because, unlike a pawnshop, it is rare for people to attempt to sell jewelry to a jewelry store. Moreover, the employee told Miller that he could see the man standing outside the store as he was speaking to Miller and stated that the man was carrying a little bag and was wearing a large amount of jewelry and a black jacket with the word “McCoy” on it as well as a red devil on the back, that he was accompanied by a woman in a red jacket, and that they were heading towards a nearby Burger King.

Acting on this information, Miller immediately put out a radio call for a detective unit in the area. The detective who responded was Gaudet. As noted above, Gaudet knew that the previous day the police received a report in which a person with similar physical characteristics had attempted to sell expensive jewelry for very low prices in the same district in New Orleans. Accordingly, Gaudet, along with other New Orleans police officers, proceeded to the restaurant. Upon entering the restaurant, Gaudet quickly recognized McCoy and his companion and advised them that they were under arrest for investigation of possession of stolen property. At the time of the arrest, not only was McCoy wearing some jewelry, but a search incident to arrest revealed that McCoy had in his possession a pouch containing a substantial amount of jewelry and a hotel key.4 Though McCoy declined to talk to the police, McCoy’s companion made a written statement in which she stated that McCoy had robbed a jewelry store in Denver and that additional pieces of jewelry, as well as a gun, were located in a local hotel. Based on this information, the police obtained a search warrant for the hotel room and recovered a .38 caliber gun and other pieces of jewelry. The New Orleans police department then informed the Denver police department that McCoy had been taken into custody in New Orleans. Subsequently, McCoy was returned to Colorado and charged with two counts of aggravated robbery and two counts of crimes of violence.

Prior to trial, McCoy moved to suppress the introduction of evidence obtained from the arrest, arguing that the police did not have probable cause for his arrest; therefore, the evidence had been obtained in violation of his Fourth Amendment rights and must be excluded. The trial court disagreed and denied the motion. In denying the motion, the trial court found both informants reliable. As to the confidential informant, the trial court found that Thompson personally knew the informant, had relied upon him in the past and knew that the informant had forty years of experience in the gold busi*1243ness. With respect to the jewelry store employee, the trial court found that the employee of the jewelry store identified himself to Miller and was reliable as a citizen informant. At trial, McCoy was identified as the armed robber by both of the persons working in the jewelry store on the day of the robbery. Additionally, the owner of the jewelry store identified much of the jewelry found on McCoy and in his hotel room as jewelry taken from his store in the robbery. Subsequently, a jury found McCoy guilty on all charges, and he was sentenced to a term of 24 years and 2 days in the Department of Corrections.

II

The law regarding probable cause is well settled and need not be reiterated. However, “we must not lose sight of the fact that a probable cause determination involves a common-sense question: what would reasonable people believe under the circumstances?” People v. Quintero, 657 P.2d 948, 951 (Colo.) (Rovira, J., dissenting), cert. granted, 463 U.S. 1206, 103 S.Ct. 3535, 77 L.Ed.2d 1386, and cert. dismissed, 464 U.S. 1014, 104 S.Ct. 543, 78 L.Ed.2d 719 (1983).

In determining there was no probable cause to arrest McCoy, the majority does not examine the facts and circumstances known to the arresting officers as a whole. Instead, the majority attempts to strip certain facts of their importance by considering them as independent variables. For instance, the majority first examines the information provided by the jewelry store employee and concedes that the police “had probable cause to believe that the person who offered the jewelry at the jewelry store was the same person they located at Burger King.” Maj. op. at 1237. The majority next examines whether McCoy was the person involved in the two reports and assumes that there may be probable cause “to believe that McCoy was the person who had engaged in the suspicious activity on both occasions.” Maj. op. at 1238. The majority then seeks to discount some of the information known to the police officers stating that “[njeither the defendant’s physical characteristics nor his attire contributes to a conclusion that a crime had been or was being committed.” Id.

The determination of probable cause is not made in a vacuum. By necessity it requires an examination of a variety of factors in conjunction with each other. In this case, the arresting officer knew of two independent reports of a short, stout, black male approximately 25 years old, attempting to sell expensive jewelry at prices much less than the obvious value of the jewelry in the central business district of New Orleans. The reports were made within twenty-four hours of each other by two separate and credible sources.

The first description of McCoy was given to the police by a previous reliable confidential informant with over forty years of experience in the gold business. The informant gave Thompson a detailed description of the jewelry the man was attempting to sell as well as the man involved.

A second report corroborated the fact that a man matching the description given by the confidential informant was attempting to sell expensive jewelry at prices well below market value in the central business district of New Orleans. The second report was made by an employee of a reputable jewelry store who was so concerned by McCoy’s activity that he voluntarily placed a call to the police the moment McCoy left the store. The employee identified himself to Miller and stated that he was calling the police because he did not “want to get caught in the middle of anything.” Both reports to the police were made by individuals who refused to do business with McCoy because they believed the ownership of the jewelry he was attempting to sell was questionable.5

Based upon the two separate reports and descriptions, McCoy was recognized and arrested. The trial court found these facts and circumstances were sufficient to establish *1244probable cause to arrest McCoy, not for the armed robbery in Denver, but for the possession of stolen property.6 I believe that the totality of this information considered as a whole would lead an experienced police officer, indeed even a lay person, to the reasonable belief that McCoy had committed or was committing a crime.

The majority also suggests that the fact that McCoy entered a jewelry store in the afternoon and openly attempted to sell his stolen goods undermines the suspicion that the jewelry was stolen. I find this fact unpersuasive. First, this behavior was clearly suspicious to the employee who called the police immediately after McCoy left the store. Additionally, there is little doubt that many crimes are perpetrated in the open and in broad daylight, attesting either to the boldness or to the stupidity of the perpetrators, but not to the innocence of their activities. Likewise, I am not persuaded by the majority’s conclusion that the words used to arrest McCoy suggest a lack of probable cause. In the heat of an arrest, it is unlikely a police officer expends time contemplating the words used to effectuate the arrest, thus I decline to infer that the words used by a police officer in arresting an individual have any bearing on whether probable cause to arrest exists.

In executing their duties, police officers often are required to make decisions on the street based upon the totality of the information available to them at that time. Though the Fourth Amendment protects liberty interests of individuals, it also must be applied in light of the needs of law enforcement officials to protect the public. Because I believe that there was probable cause to arrest McCoy, I do not believe his Fourth Amendment rights were violated. Accordingly, I dissent.

I am authorized to say that Justice VOL-LACK and Justice MULLARKEY join in the dissent.

. The majority admits the facts would "give rise to reasonable suspicion” to detain McCoy. Maj. op. at 1238. While there is a fine line between reasonable suspicion and probable cause, in my opinion the facts in this case cross that line.

. The court of appeals remanded the case for a new trial, directing the trial court to determine whether the evidence discovered in the hotel room was the illegal "fruit” of McCoy’s arrest.

. The trial court found the employee did identify himself to Miller, though the officer could not remember the name of the employee at the suppression hearing.

. The police recorded the jewelry that they recovered from McCoy. The report included the following pieces:

one yellow gold heavy rope chain with approximately one karat diamond; one yellow gold bracelet with three large diamonds, 20 smaller diamonds; one yellow gold ring, oval shaped with a one and two-thirds karat diamond and a one three-quarter diamond; one yellow gold necklace, 10 to 20 diamonds; one yellow gold pendant containing one large diamond and 15 smaller diamonds mounted in the center; one yellow gold chain containing a sapphire and pendant; three large rubies surrounded by ten smaller diamonds; one yellow gold necklace containing two to five small diamonds and two emeralds, one containing five diamonds; one yellow gold ring containing one large diamond; one yellow gold ring containing 12 small diamonds; one yellow gold ring containing four small diamonds and one blue sapphire; one yellow gold ring containing one large diamond and two smaller diamonds; one yellow gold bracelet with 28 diamonds; one pendant which had pearls and five small diamonds; one yellow gold mesh necklace; one yellow gold mesh bracelet; one yellow gold bracelet.

. In Louisiana, it is a crime to deal with stolen property. La.Rev.Stat.Ann. § 14:69 (West 1986).

. Possession of stolen property is a crime in Louisiana. La.Rev.Stat.Ann. § 14:69 (West 1986).