No. 89SA461Supreme Court of Colorado.
Decided April 23, 1990.
Interlocutory Appeal from District Court, Mesa County Honorable Charles A. Buss, Judge
Stephen K. Erkenbrack, District Attorney, R.D. Wagner, Deputy District Attorney, for Plaintiff-Appellant.
David F. Vela, Colorado State Public Defender, Jeff Boyd Herron, Deputy State Public Defender, for Defendant-Appellee.
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EN BANC
CHIEF JUSTICE QUINN delivered the Opinion of the Court.
[1] The People filed this interlocutory appeal to challenge a district court ruling suppressing evidence obtained as a result of a warrantless arrest and search of the defendant. The court granted the motion to suppress because the People were unable to offer any evidence to support the constitutional validity of the arrest and search. We affirm the suppression ruling. I.
[2] The facts are not in dispute. The defendant, Eric Thomas Crow, is charged in the District Court of Mesa County with possession of a Schedule I controlled substance, lysergic acid diethylamide,[1]
criminal attempt to tamper with physical evidence,[2] and possession of less than one ounce of marihuana.[3] The defendant on September 13, 1986 entered a not guilty plea to all charges, and the court at that time granted both the prosecution and the defense thirty days to file motions and set the date of November 8, 1989 for hearing on any motions. The defendant filed a timely motion to suppress all evidence seized during the course of his arrest on the ground that such evidence was the product of a warrantless unconstitutional arrest. On October 11, 1989, the prosecution filed a motion to continue the motions hearing because one of the arresting officers, Dan Vilkofsky, was scheduled to attend a training program and thus would not be available to testify at the scheduled hearing. Although the prosecution’s motion stated that the defense attorney had no objection to the continuance, the court entered an order on October 18, 1989 denying the motion for a continuance, because the motions hearing had been set on the court’s docket since September 13.
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and search were done without a warrant, and they have not presented evidence to indicate that it was reasonable to do so and was necessary to do so. The court, therefore, orders that the evidence obtained from the defendant’s arrest and search, both done without warrants, be suppressed and not admitted as evidence in the case.”
[6] In challenging the court’s suppression ruling, the People initially argue that the district court abused its discretion when it denied the prosecution’s motion to continue the suppression hearing and that the court further erred when, after denying the request for a continuance, it granted the defendant’s motion to suppress because the prosecution was unable to offer any evidence to support the warrantless arrest and search of the defendant.[5] We consider these arguments in turn.II.
[7] “To say that a court has discretion in resolving [an] issue means that it has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other.” People v. Milton, 732 P.2d 1199, 1207 (Colo. 1987); see also Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115 (Colo. 1986). A trial court’s ruling on a motion to continue a hearing rests in the sound discretion of the court, and such ruling will not be disturbed on appellate review in the absence of a showing of a clear abuse of discretion. E.g., People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988); People v. Mann, 646 P.2d 352, 358 (Colo. 1982). A court abuses its discretion only when, based on the particular circumstances confronting it, its ruling on the motion is manifestly arbitrary, unreasonable, or unfair. E.g., King v. People, 785 P.2d 596, 603
(Colo. 1990); Milton, 732 P.2d at 1207.
(1964)). When the asserted reason for the continuance is the absence of a witness, a trial court properly may consider whether the party requesting the continuance has exercised due diligence in attempting to secure the presence of the witness. Gallagher v. County Court, 759 P.2d 859, 860
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(Colo.App. 1988). Unless the record shows that the trial court ruling was manifestly arbitrary, unreasonable, or unfair, see, e.g., King, 785 P.2d at 603; Milton, 732 P.2d at 1207, the ruling on the motion should be upheld as a proper exercise of judicial discretion.
[9] The People rely upon our recent decision in People v. Bakari, 780 P.2d 1089 (Colo. 1989), for the proposition that the district court’s refusal to continue the suppression hearing constituted an abuse of discretion. In Bakari, a deputy district attorney who had recently been assigned the case requested a continuance of a motions hearing because, due to personnel changes in the district attorney’s office, subpoenas inadvertently had not been issued for witnesses. The prosecuting attorney advised the court that he had attempted to contact his witnesses but had been unable to do so, and that another district court could hear the suppression motions within two weeks and the scheduled trial date could be maintained. 780 P.2d at 1089. The district court denied the request for a continuance, and after the prosecutor stated that he was not prepared to present any evidence on the suppression motion, granted the defendant’s motion to suppress. Id. This court concluded that, based on the circumstances presented in support of the district attorney’s motion for a continuance, the district court abused its discretion in denying the motion. Id. at 1092. [10] The facts of the present case are markedly different from the facts o Bakari in several respects. In contrast to Bakari, which involved an inadvertent failure to subpoena witnesses, the prosecution in the instant case knowingly chose not to subpoena the arresting officer, or apparently any other witnesses for the suppression hearing. Moreover, in Bakari the deputy district attorney attempted to contact necessary witnesses for the suppression hearing but was unable to do so, while there was no such effort in this case. Rather, the record before us quite clearly establishes that the prosecution chose not to exercise due diligence in preparation for the motions hearing. [11] We recognize that the arresting officer, who was scheduled to attend a training program on the date of the suppression hearing, would obviously be inconvenienced were he subpoenaed to attend and give testimony at the suppression hearing. Some degree of inconvenience, however, is obviously experienced by all witnesses subpoenaed for judicial proceedings, but inconvenience, by itself, does not constitute good cause for the continuance of a scheduled hearing. We are satisfied that the district court’s ruling in this case was well within the limits of sound judicial discretion and that such discretion was exercised for the legitimate purpose of ensuring the efficient management of the court’s heavy docket.III.
[12] We turn then to the propriety of the district court’s order of suppression. Where a defendant is arrested without a warrant and moves to suppress evidence seized in the course of his arrest, the burden of proof is upon the prosecution to prove the constitutional validity of the arrest and search. See People v. Tufts, 717 P.2d 485 (Colo. 1986) (burden of proof on prosecution to establish the existence of probable cause to support warrantless arrest); People v. Brewer, 690 P.2d 860 (Colo. 1984) (warrantless search presumed invalid, and burden is on the prosecution to prove that search fell within some recognized exception to warrant requirement).
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consequences of an adverse ruling when it elects not to offer available probative evidence” on those matters. People v. Roybal, 672 P.2d 1003, 1006
(Colo. 1983). Given the prosecution’s failure to present any evidence to support the constitutional validity of the warrantless governmental intrusion, the district court was left with no alternative but to hold that the defendant’s arrest was unlawful and that the fruits of the unlawful arrest must be suppressed. People v. Chacon, 177 P.2d 368, 494 P.2d 79 (1972) (per curiam).