dissenting:
The majority holds that the trial court did not abuse its discretion in dismissing two counts of possession and distribution of a schedule I controlled substance when the prosecution refused to disclose the confidential informant. I respectfully dissent. The issue is whether the disclosure of the informant’s identity would provide evidence necessary for the court to determine the validity of the extraterritorial arrest of the defendant and the possible suppression of heroin found in the possession of the defendant.
In my view, the facts of this case require us to apply the reasoning of People v. Wolf, 635 P.2d 213, 217 (Colo.1981), which held although the police in that case were acting outside the territorial limits of their authority under section 16-3-106, 8A C.R.S. (1986), and were not acting as private citizens under section 16-3-201, 8A C.R.S. (1986), nonetheless, they had the power to arrest persons for a crime committed in their presence. Here, the criminal drug transaction was personally observed by the two detectives. “If private citizens have the power to arrest persons who commit crimes in their presence, certainly a police officer, outside his territorial jurisdiction, has the same power.” People v. Wolf, 635 P.2d at 216 (quoting People v. Bloom, 195 Colo. 246, 252, 577 P.2d 288, 293 (1978)). Probable cause measures the constitutionality of an arrest by law enforcement officers. The test is whether the facts available to the police officers support their belief that an offense has been or is being committed. Certainly, there can be no doubt that where a crime is committed in the presence of the officers, probable cause to arrest exists. People v. Wolf, 635 P.2d at 217. Such is the case here, and the fact that the officers in this case may have violated section 16-3-106 does not raise their action to a constitutional violation where the crime was committed in their presence. Of import, the trial court did not rule on the suppression of the evidence for violation of section 16-3-106, 8A C.R.S. (1986). Rather, it dismissed the charges against the defendant for failure of the prosecution to disclose the confidential informant. Applying the reasoning of People v. Wolf, where the evidence was obtained from a crime committed in the officers’ presence, there should be no suppression of the evidence. The disclosure of the confidential informant is inappropriate here.
I believe disclosure here is inappropriate based upon Colorado law. We have addressed two common situations involving informer privileges. People v. Bueno, 646 P.2d 931, 935 (Colo.1982). In the first situation, disclosure of an informant’s identity arises in connection with the defendant’s motion to suppress evidence, and in the second situation, disclosure arises in connection with the defendant’s claim that the informer is an essential witness on the issue of guilt or innocence. Here, the defense asserted that the informant would provide valuable information concerning the officers’ credibility as to whether or not the officers willfully exceeded their jurisdiction in violation of section 16-3-106. The trial court ruled that the informant’s identity was essential to the merits of the suppression hearing where the officers’ credibility was challenged concerning what the informant told them. Initially, however, the trial court stated that it did not believe that the credibility of the two Denver police officers had been seriously challenged. The record contains a conflict in the evidence involving the actions of the detectives regarding surveillance of Martinez’s house during the morning of October 28, 1983. Nevertheless, the activities of the detectives in the afternoon of October 28, 1983, were uncontradicted leading up to the arrest in Adams County. It is undisputed that the detectives knew of the existence of the federal warrant issued for Chavez.
The question of whether an informant should be disclosed must be determined on the facts of each case. People v. Marquez, *370190 Colo. 255, 258, 546 P.2d 482, 484 (1976). The determination must balance the public interest in protecting the flow of information to law enforcement authorities about criminal activity against the defendant’s need to obtain evidence necessary for the preparation of a defense. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957); People v. Korte, 198 Colo. 474, 475, 602 P.2d 2, 3 (1979). The defendant must make an initial showing that the informant will provide information essential to the merits of the suppression ruling by establishing “a reasonable basis in fact to believe that an informer does not exist or, if he does, he did not relate to the police the information upon which the police purportedly relied as probable cause for an arrest or search.” People v. Bueno, 646 P.2d at 936 (emphasis added). We have noted that disclosure protects the judicial process against abuses by false affidavits. Id.
The cases cited by the majority to support its decision that the confidential informant be disclosed in this case are inappo-site. They concern information from confidential informants used to constitute probable cause for an arrest or search. In People v. Bueno, the credibility of a police officer was questioned with regard to whether the affidavits established probable cause for the arrest warrant. 646 P.2d at 937. In People v. Dailey, 639 P.2d 1068 (Colo.1982), we said that it was appropriate to challenge the veracity of an officer with regard to affidavits supporting a search pursuant to a warrant. 639 P.2d at 1076. Again, in People v. Martinez, 658 P.2d 260, 262 (Colo.1983), we ruled that the trial court did not abuse its discretion in resolving factual and credibility issues in favor of the defendant where the court found that a good faith basis existed for doubting the accuracy of the affidavit for the issuance of a search warrant. It was also appropriate to order disclosure of the confidential informant to challenge information provided by the informant to establish probable cause to search a defendant’s home. People v. Korte, 198 Colo. at 476, 602 P.2d at 3. The issue in these cases was whether probable cause existed to either make an arrest or issue a search warrant. I agree, that in such a situation, challenging the veracity of a police officer was appropriate. In the instant case, however, the crime was committed within the presence of the police officers and, therefore, disclosure of the confidential informant would not go to whether there was probable cause for the arrest and is not appropriate.
Since the offense with which the defendant was charged was committed in the presence of the arresting officers, the arrest in this case did not violate constitutional restraints on unreasonable seizures and, therefore, the remedy of the exclusionary rule should not be imposed. See People v. Wolf, 635 P.2d at 217.
I believe the trial court abused its discretion in ordering the disclosure of the confidential informant and in dismissing the charges against the defendant when the prosecution refused to comply with that order and, accordingly, I would reverse.
I am authorized to state that ERICKSON and ROVIRA, JJ., join in this dissent.