This is an interlocutory appeal by the defendant, Gilbert Ray Moreno, from a ruling of the district court of Adams County. It was perfected under the provisions of C.A.R. 4.1 after the trial court denied a motion to suppress a statement which was made by the defendant following his arrest for grand theft and conspiracy to commit grand theft.
The defendant claims that he was arrested pursuant to an arrest warrant which was issued without probable cause and that any statement he made subsequent thereto was the fruit of an illegal arrest and, therefore, inadmissible. In particular, he contends that the complaint supporting the arrest warrant failed to set forth facts sufficient to satisfy the probable cause requirements of the Fourth Amendment to the United States Constitution, Article II, Section 7 of the Constitution of Colorado, and Rule 4 of the Colorado Rules of Criminal Procedure. The defendant also claimed at the time of the suppression hearing that the statement should have been suppressed on the ground that it was made involuntarily.
The arrest warrant in issue was premised upon the following complaint:
We find the complaint to be void of facts sufficient to establish probable cause. To support the issuance of an arrest warrant, the complaint must comply with the probable cause requirements of the Fourth Amendment to the United States Constitution, Article II, Section 7 of the Constitution of Colorado, and Rules 3 and 4(a) of the Colorado Rules of Criminal Procedure. Obviously, the existence of probable cause must be determined by a member of the judiciary, rather than by a law enforcement officer who is employed to apprehend criminals and to bring charges against those who choose to violate the law. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
Facing a similar fact situation in People v. Sesslin, 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321 (1968), the California Supreme Court, in striking down an arrest warrant, provided us with this analysis of legal precedent:
. . . . . .
The conclusion that no arrest warrant may constitutionally issue on the basis of a complaint, such as the one which is before us, is also compelled by Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), in which the Supreme Court said:
The complaint in the Whiteley case was condemned because of the conclusory language which was used. The complaint in this case is all but identical and will not support a valid arrest warrant.
These constitutional principles have also been incorporated in Rules 3 and 4(a) of the Colorado Rules of Criminal Procedure, which provide:
"Rule 3. The Felony Complaint
"Rule 4. Warrant or Summons upon Complaint—Felony
Should the judge to whom application has been made for the issuance of an arrest warrant determine that the complaint is insufficient, he can require that sworn testimony be offered to supplement the complaint or that the complaint be amended to set forth additional facts, if an arrest warrant is to be issued. Under Article II, Section 7 of the Constitution of Colorado, any testimony taken to supplement the complaint would have to be reduced to writing and signed by the witness or witnesses that offered the testimony under oath. See People v. Brethauer, Colo., 482 P.2d 369 (1971).
Our decision, like the Whiteley case, is limited to complaint practice. The charging process, when by indictment or information, is not governed by our decision. Crim.P. 7(b) (3) permits the filing of a direct information and leaves the determination of probable cause to the preliminary hearing. Crim.P. 7(g) (1). The grand jury, in returning a true bill, is the arbiter of probable cause. It is clear that an indictment or information is sufficient if it charges a crime in the words of the statute. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Williams v. People, 26 Colo. 272, 57 P. 701 (1899); People v. White, 24 Ill.App.2d 324, 164 N.E.2d 823, 80 A.L.R.2d 1060 (1960); Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963). See also Dession, From Indictment to Information —Implications of the Shift, 42 Yale L.J. 163 (1932); Scigliano, The Grand Jury, the Information, and the Judicial Inquiry, 38 Ore.L.Rev. 303 (1959); and Note, Initiation of Prosecution by Information— Leave of Court or Preliminary Examination?, 25 Montana L.Rev. 135 (1963).
We have been obliged to hold that the arrest warrant in this case should not have been issued. Consequently, if the arrest of the defendant is to be upheld, the arresting officer must have had probable cause to believe that an offense had been committed by the defendant apart from the complaint. In addition, the officer must have been confronted with exigent circumstances. Otherwise, the officer's entry into a private home without a valid warrant for the purpose of arresting the defendant cannot be justified. Dorman v. United States, 435 F.2d 385 (C.A.D.C. 1969); see Coolidge v. New Hampshire, supra; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). See also Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1957). Since there are no facts in the record to show that the officers were confronted with exigent circumstances and that the officers had probable cause to believe that the defendant had committed a crime, we must direct that the matter be remanded to the trial court for a further hearing. The prosecution has the burden at the suppression hearing to show that the defendant was lawfully arrested. See People v. Feltch, Colo., 483 P.2d 1335 (1971); People v. Valdez, Colo., 480 P.2d 574 (1971). On remand, if the prosecution is unable to establish that exigent circumstances existed, supported by probable cause, the arrest will, of course, be deemed to be unlawful.
The next question is whether a statement taken as the result of and following an unlawful arrest must be suppressed. We find the words of Chief Judge Tuttle of the Fifth Circuit, in the case of Collins v. Beto, 348 F.2d 823 (5th Cir. 1965), dispositive of this question:
Although the complaint practice followed by most law enforcement officials in Colorado affects the right of a defendant in maintaining his freedom and allows arrests on mere suspicion, it does not go to the essential truth-finding process at the time of the trial. Accordingly, we declare that the doctrine defined in the Whiteley case, and announced in this case, shall be effective as of the date of this opinion.
On remand, if the arrest can be justified without a warrant, the trial judge must also make proper findings of fact relating to the validity of the statement which the defendant made after his arrest. The defendant claimed that his statement should have been suppressed because it was made involuntarily and was obtained in violation of his privilege against self-incrimination. The determination of voluntariness is primarily a matter to be resolved by the trial judge based upon the totality of the circumstances. Billings v. People, 171 Colo. 236, 466 P.2d 474 (1970). To conclude that a statement was given voluntarily, the trial judge must find that the statement was voluntary beyond a reasonable doubt. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Kelley, 172 Colo. 39, 470 P.2d 32 (1970).
At the hearing below, the trial judge ruled that the defendant's statement was voluntary, but findings of fact were not made. It is, therefore, necessary that the trial court make findings of fact if the arrest was lawful. On remand, the subjective test must be the trial judge's guide in determining whether the defendant was apprised of his rights and knew what those rights actually were. The question of compulsion is interlaced with the requirement that the four-fold warning required by the Miranda case be given. A stereotype warning cannot be the sole basis of the court's determination that the statement was voluntary and that the defendant was aware of his rights and waived and relinquished his rights under both the Fifth and Sixth Amendments to the United States Constitution. On remand, the trial court must look to the totality of the circumstances to determine whether the interrogation practices resulted in the defendant's will being overborne in view of his addiction to heroin, reliance upon methadone, and the alleged promises that help would be provided if the defendant cooperated. "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will ... show that the defendant did not voluntarily waive his privilege." Miranda v. Arizona, supra.
In the conclusory finding made by the trial court, the court declared that the
Accordingly, we reverse and remand this case to the trial court for two determinations: First, if the prosecution can establish that the arrest of the defendant was lawful without an arrest warrant, the court should then take testimony and make findings of fact relating to the defendant's statement, in accordance with the requirements which we have set forth in this opinion. Second, the trial court should suppress the statement if the prosecution fails to meet the requirements which would justify an arrest without a warrant and should also suppress the statement if the statement was taken in violation of the directives set forth in Miranda v. Arizona, supra.
On rehearing, the original opinion in this case is withdrawn, this opinion substituted, and the cause, therefore, reversed and remanded with directions for further proceedings consistent with this opinion.
GROVES and KELLEY, JJ., specially concurring.
GROVES, Justice (specially concurring):
The majority opinion suggests that probable cause need not be demonstrated for a capias or arrest warrant issued under an information, and gives as the reason that "Crim.P. 7(b) (3) permits the filing of a direct information and leaves the determination of probable cause to the preliminary hearing. Crim.P. 7(g) (1)." In Colorado there can be a determination of probable cause at a preliminary hearing conducted following arrest under a complaint-based warrant as speedily and effectively as the preliminary hearing conducted under an arrest made by reason of an information. Crim.P. 5. If a showing of probable cause must be made in the complaint beyond a recitation of the statute allegedly violated, then the same showing must be made in the information. There simply is no logical distinction in this respect. Conversely, if this additional showing of probable cause can be supplied as to the information by a preliminary hearing, the same cure can be effected with respect to the complaint.
I favor a rule following the view of the remedial effect of the preliminary hearing. However, I find no escape from Whiteley, supra. Believing that the rule of Whiteley constitutes an unnecessary impediment upon law enforcement, I can only hope that the United States Supreme Court reconsiders the Whiteley rule, and disaffirms or modifies it.
KELLEY, J., joins in this concurring opinion.