Opinion
No. 76-230
Decided September 29, 1977. Rehearing denied November 17, 1977. Certiorari denied March 20, 1978.
Convicted of theft of Volkswagen bus, defendant appealed.
Affirmed
1. CRIMINAL LAW — Investigatory Stop — Police — Reasonable Suspicion — "Crime Was Afoot" — Justified — Road Block — Ostensible — Safety Check — Stop Defendant. Because of information confidentially supplied to them that stolen Volkswagen would be proceeding along specified road at specified time, the police had reasonable suspicion based on objective fact to believe that "crime was afoot," and thus they were justified in establishing roadblock, ostensibly for safety check purposes, as a means to make an investigatory stop of defendant who was driving Volkswagen that proved to be stolen.
2. Arrest — Incident Search — Justified — Facts Known to Police — Probable Cause — Present. Following legitimate investigatory stop of defendant and at the time they made their decision to arrest defendant, the police had, by their own investigation, ascertained that: (1) the defendant was driving one of two Volkswagen buses of a similar type stopped at the safety check point; (2) each vehicle was missing one license plate and the two license plates left between them were identical; (3) the vehicle identification number of the vehicle driven by defendant was conspicuously absent from the place where it had originally been attached; and (4) the vehicle registration in defendant's possession did not match the vehicle he was driving; thus, probable cause existed for the subsequent arrest of defendant, and the search incident thereto was valid and evidence obtained as a result thereof was admissible.
3. Discovery — Applicable Standard — Material Sought — Tend to Negate Guilt — Relevant and Helpful — To Defendant. Other than the specific items listed as being readily discoverable in Crim. P. 16 (Part I) the standard for discovery in criminal prosecution is that the material sought must "tend to negate the guilt of the accused" before the prosecution is under a duty to disclose it, and further that material must be "relevant and helpful" to the defendant.
4. Discovery — Informant's Information — Not — Negate Guilt — Failure to Disclose — Not — Mandate Mistrial. Where information supplied by informant was to the effect that two similar stolen Volkswagen buses would pass through the Eisenhower Tunnel during a certain time, that information did not tend to negate defendant's guilt of the crime of theft and thus was not a subject of mandatory disclosure by the prosecution; consequently, the trial court was within its discretion to rule that the nondisclosure of this information did not mandate a mistrial.
5. Discovery — Informant's Identity — Not Mandatory — Focus — Rule of Informant — Informant's Information — Unrelated — Defendant — Failure — Disclose Identity — Mistrial Not Required. The mere involvement of an informant in the events leading to the arrest of a criminal defendant does not justify the compelled disclosure of his identity to defendant on the basis of possible entrapment; rather, the controlling factor vis-a-vis entrapment is the role the informant played in the transaction, and only after that has been determined should the focus be on his relationship with police; thus, where informant told police that two stolen Volkswagen buses would pass through Eisenhower Tunnel during certain time period, he was not bound to the defendant or to the theft of the vehicles in any way; and the trial court was within its sound discretion in concluding that the failure to disclose the informant's identity did not substantially affect the nature of defendant's trial and justify declaring a mistrial.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, E. Ronald Beeks, Assistant Attorney General, Lynne M. Ford, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Chief Deputy Public Defender, Mary G. Allen, Deputy State Public Defender, for defendant-appellant.
Defendant, Ronald Howard Peterson, was convicted of the felony theft of a Volkswagen bus. He appeals on the basis that evidence leading to the conviction was obtained as a result of a bogus safety check, and also on grounds that the prosecution's nondisclosure of the existence of an informant justified a mistrial. We affirm.
On April 11, 1975, Summit County Sheriff's officers were informed by an unnamed individual of the likelihood that two stolen Volkswagen buses would be traveling eastbound through the Eisenhower Tunnel the following afternoon at approximately thirty minute intervals.
At approximately 2:15 the next afternoon, a Volkswagen bus driven by one Robert Guy Reynolds was stopped by the Colorado State Patrol immediately west of the Eisenhower Tunnel on Interstate 70. This was done as part of a "safety check" roadblock which had been established at that location. Upon stopping Reynolds the patrol officer noticed that the front license plate of the vehicle was missing. The officer also observed that the vehicle identification number normally located just behind the windshield was also missing. Although Reynolds produced a registration card, it did not correspond with the vehicle he was driving.
Sometime later, a Volkswagen bus driven by the defendant was also stopped pursuant to the "safety check." The officer manning the roadblock observed that the license plate on the front of the Volkswagen driven by the defendant was the duplicate of the one on the vehicle driven by Reynolds. Further, the vehicle identification number was also absent, and the registration number in defendant's possession did not match the vehicle he was driving. The engine compartment was then opened and the engine identification number was found to have been ground off. The defendant was thereupon arrested.
The "Safety Check"
In support of his allegation of error relative to the alleged bogus safety check, defendant relies on two groups of cases. First are those decisions which condemn the use of a generalized safety check as a ruse for conducting a search. See People v. Andrews, 173 Colo. 510, 484 P.2d 1207 (1971). The second group consists of those cases which condemn the use of an unrelated "arrest" as a pretext for conducting a search without a warrant. E.g., People v. Montoya, 183 Colo. 397, 517 P.2d 401 (1973).
Defendant's reliance on these cases in misplaced. The facts of the instant case do not present the court with a search the justification for which was a phony safety check roadblock, nor do they pose the problem of an arrest inherently unrelated to the search which was conducted.
[1] Because of the information confidentially supplied to them, the police here had reasonable suspicion based on objective fact to believe that "crime was afoot," which suspicion justified them in establishing a roadblock and in making an investigatory stop of the defendant under the doctrine of Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). Under Stone, the police could have singled out this car on the road and pulled it over, detaining the driver long enough to check his credentials, including those related to the vehicle, and to ask some general questions. Certainly the use of a less active means of stopping the car, as was employed here, does not undermine the state's case. Having an independent basis to stop a car, the police should not be precluded from utilizing a method which is designed to accommodate their interest in avoiding high speed chases. We further note that here the police were in fact making legitimate safety checks while they were awaiting the arrival of the two Volkswagens in question.
[2] The arrest of the defendant was the direct outgrowth of the investigatory stop by the police, which in itself revealed probable cause for them to believe that a theft had been committed and that the defendant had committed it. At the time they made the decision to arrest the defendant, the patrolmen had, by their own investigation, ascertained that: (1) The defendant was driving one of two Volkswagen buses of a similar type stopped at the safety check point; (2) each vehicle was missing one license plate and the two license plates left between them were identical; (3) the vehicle identification number of the vehicle driven by defendant was conspicuously absent from the place where it had originally been attached; and (4) the vehicle registration in defendant's possession did not match the vehicle he was driving. By the time the policemen arrested the defendant or opened the engine compartment, probable cause to arrest the defendant had already arisen. See People v. Mangum, 189 Colo. 246, 539 P.2d 120 (1975).
The purpose of the stop being legitimate and probable cause having existed for the subsequent arrest, the search incident thereto was valid and evidence obtained as a result thereof was admissible. Mangum, supra. Discovery and the Use of an Informant
The defendant additionally claims that the trial court erred in not declaring a mistrial after it was revealed during trial that a police informant had been the person who supplied the information concerning the stolen buses. It is submitted by the defendant that his request, made prior to trial, for all "relevant material furnished by an informant," imposed a duty on the prosecution to disclose both the information supplied by the informant and his identity. Defendant also argues that the fact that an informant is a police officer raises a presumption of entrapment and is therefore inherently subject to mandatory disclosure.
We do not agree with either contention.
[3] Other than a list of specific items which are readily discoverable in Colorado, Crim. P 16 (Part I), the standard for discovery in this state is that the material sought must "tend to negate the guilt of the accused," before the prosecution is under a duty to disclose it, Crim. P 16(a)(3) (Part I). The information must be "relevant and helpful" to the defendant. Parlapiano v. District Court, 177 Colo. 36, 492 P.2d 626. (emphasis added)
[4] Defendant's request for all "relevant" information goes beyond this area of mandatory prosecution disclosure and into the discretionary realm of the court. Crim. P 16(e)(1) (Part I); People v. Smith, 185 Colo. 369, 524 P.2d 607.
The information supplied by the informant here was to the effect that two similar Volkswagen buses would pass through the Eisenhower Tunnel. This information, while it may have been relevant to the reason for instituting the "safety check," does not tend to negate defendant's guilt and is therefore not a subject of mandatory disclosure. Consequently, the trial court was within its discretion to rule that the nondisclosure of this information did not mandate a mistrial. See People v. Knapp, 6 180 Colo. 280, 505 P.2d 7.
Although the defendant did not request that he be furnished the names of any informants, he contends that the fact that the informant here was a police officer created a special situation and made it incumbent on the prosecution to disclose his identity. This argument rests on the proposition that inherent in the use of such an informant is the potential for entrapment, and that the concealment of such a fact endangers a defendant's guarantee of a fair trial.
Whether a nondisclosure is erroneous depends on all the circumstances of the case, the nature of the crime charged, and possible defenses, as well as the possible significance of the informant's testimony. Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957); Parlapiano, supra. To be sure, the interests of a fair trial would have required disclosure of the informant's identity in this case if the facts revealed that he was "so closely related" to the defendant as to make his testimony highly material. Roviaro, supra; see Parlapiano, supra.
[5] However, the mere involvement of an informant certainly does not justify the compelled disclosure of his identity. Parlapiano, supra. See Crim. P 16(f)(2) (Part I). Nor does it justify the conclusion that entrapment was likely. Roviaro, supra. Even the fact that an informant may have been planted by the police does not justify that conclusion. Roviaro, supra. Rather, the controlling factor vis-a-vis entrapment, is the role the informant played in the transaction, and only after that has been determined should the focus be on his relationship with the police.
Here, there is no indication that the informant was in any way bound to the defendant or to the transaction. In fact, although the defense had long known of the informant's existence, they paid no attention to him until they discovered, at midtrial, that he was a police officer. The only time the issue of entrapment was even raised was during the in camera hearing in which the defendant made his motion for a mistrial. Indeed, following this in camera hearing, when the defendant's accomplice was examined and cross-examined on the witness stand, no questions were asked concerning his testimony that he and the defendant had been the sole perpetrators of the theft.
Accordingly, the sound discretion of the trial court was properly exercised when it concluded that the failure to disclose the informant's identity did not substantially affect the nature of the trial and did not justify declaring a mistrial. See People v. Knapp, supra.
Judgment affirmed.
JUDGE COYTE and JUDGE VAN CISE concur.