Peo v. Orona

23CA0861 Peo v Orona 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0861
Jefferson County District Court No. 22CR420
Honorable Lindsay L. VanGilder, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Orona,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE PAWAR
Lipinsky and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 25, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Daniel Orona, appeals his convictions based on his

possession of bank cards and a driver’s license that belonged to

other people. We agree with Orona that the trial court erred by not

suppressing evidence that he possessed these items. We therefore

reverse and remand with directions.

I. Background

¶2 A police officer patrolling a truck stop in Wheat Ridge was

running license plates of parked vehicles to see if any came back as

stolen. One did — a Toyota 4Runner parked at the truck stop came

back as having been stolen two days prior in Denver.

¶3 While the 4Runner remained parked outside, the officer went

inside the truck stop and reviewed surveillance tapes to determine

when the 4Runner arrived and what the driver looked like. The

officer then returned to his patrol vehicle near the 4Runner.

¶4 A short time later, the officer saw Orona exit the truck stop

and recognized him as the 4Runner’s driver from the surveillance

tapes. The officer approached Orona with his gun drawn and

arrested him. The officer then searched him and found the bank

cards and driver’s license that belonged to other people.

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¶5 Orona was charged with criminal possession of a financial

device and criminal possession of an identification document. He

was not charged with motor vehicle theft.

¶6 Orona moved to suppress the items discovered during the

search, arguing that the arrest and search were illegal because

neither was supported by probable cause. The trial court denied

the motion, ruling that the officer had probable cause for the arrest

because the 4Runner’s plates came back as stolen and the search

was legal as one incident to the arrest. The evidence discovered

during the search was therefore admitted at trial. Orona was found

guilty as charged and convicted and sentenced accordingly.

¶7 On appeal, Orona argues that the trial court erred by denying

his motion to suppress because the arrest was not supported by

probable cause, rendering it and the search illegal. We agree.

II. Motion to Suppress

¶8 We review the trial court’s suppression ruling as a mixed

question of fact and law. People v. Dacus, 2024 CO 51, ¶ 23. We

accept the court’s factual findings if they are supported by

competent evidence in the record. Id. But we assess the legal

significance of those facts de novo. Id.

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¶9 When reviewing a suppression ruling, we consider only the

record created at the suppression hearing. Id. at ¶ 24.

¶ 10 An arrest must be supported by probable cause. Id. at ¶ 26.

Probable cause is “information showing a fair probability that the

defendant committed, is committing, or is about to commit a

crime.” Id. At the suppression hearing, it is the prosecution’s

burden to establish probable cause. People v. Castaneda, 249 P.3d

1119, 1122 (Colo. 2011).

¶ 11 Based on this authority, the question before us is whether the

prosecution’s evidence at the suppression hearing established that,

at the time of the arrest, the information known to law enforcement

showed a fair probability that Orona stole the 4Runner or knew the

4Runner was stolen when he drove it.1 The only evidence the

prosecution presented on this point was that the 4Runner came

back as stolen when the officer ran its plates. Orona was not

questioned before the arrest, and there was no physical evidence

that the 4Runner was stolen.

1 The crime of motor vehicle theft includes both stealing a vehicle

and knowingly exercising control over another’s motor vehicle
without authorization. § 18-4-409(2)-(4), C.R.S. 2025.

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¶ 12 So did the fact that the 4Runner’s license plate came back as

stolen, in and of itself, constitute probable cause to arrest its

driver? Longstanding Supreme Court authority tells us no.

A. Whiteley and Hensley

¶ 13 In Whiteley v. Warden, 401 U.S. 560 (1971), a county sheriff

obtained an arrest warrant for the defendant and sent a radio

message to law enforcement throughout the state describing the

defendant. Id. at 564. Officers in a different part of the state

encountered the defendant. Id. at 563. Relying on the radio

message from the county sheriff, they arrested the defendant and

searched his car. Id.

¶ 14 The Supreme Court first concluded that the warrant obtained

by the county sheriff was invalid because it was not supported by

probable cause. Id. at 565. Although the sheriff had identified the

defendant as the perpetrator of a crime based on an unnamed

informant’s tip, the application for the warrant did not mention the

tip — it included only the sheriff’s unexplained assertion that the

defendant committed a crime. Id. The Court therefore held the

warrant invalid. Id.

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¶ 15 Because the warrant was invalid, the Court then considered

whether there was nevertheless probable cause to support the

warrantless arrest. The Court held that the information known to

the arresting officer and the county sheriff at the time of the arrest

did not amount to probable cause. Id. at 567. The Court therefore

concluded that the arrest and search were illegal and their

evidentiary fruit was inadmissible. Id. at 568-69.

¶ 16 The parties here spend a significant amount of time disputing

the import of Whiteley and whether our case is analogous to

anonymous tip cases. Fortunately for us, the Supreme Court has

succinctly summarized Whiteley’s holding in terms that are well

tailored for application here.

¶ 17 In United States v. Hensley, 469 U.S. 221 (1985), the Court

explained that “Whiteley supports the proposition that, when

evidence is uncovered during a search incident to an arrest in

reliance merely on a flyer or bulletin, its admissibility turns on

whether the officers who issued the flyer possessed probable cause

to make the arrest.” Hensley, 469 U.S. at 231. In other words, an

officer may arrest a suspect based on only the conclusory and

unexplained assertion of a fellow officer (for example, “that car is

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stolen, arrest the person driving it”). But that arrest is illegal

unless the fellow officer (or some combination of officers) has

information that amounts to probable cause.

B. There Was No Probable Cause Here

¶ 18 At the suppression hearing, the officer testified that he ran the

4Runner’s plates and it “was listed as stolen.” When asked which

agency listed it as stolen, he testified “Denver.” There was no

evidence at the suppression hearing about what Denver agency

listed it as stolen or what list or database the information came

from. Nor was there any evidence about how the vehicle came to be

listed as stolen in this unidentified list or database. As the trial

court noted, there was no physical evidence that the 4Runner was

stolen — there was no visible damage, the ignition was not

punched, and the license plates were not missing or exchanged.

And Orona was not questioned at all before the arrest.

Consequently, the sum total of the information known to police at

the time of the arrest was that the 4Runner’s plates were listed as

stolen in an unidentified “Denver” database or list. This limited

information was merely an unexplained assertion from an

unidentified source that the vehicle was stolen.

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¶ 19 Under Whiteley, this was clearly insufficient to establish

probable cause for the arrest. In Whiteley, although it was not

enough to establish probable cause, at least the Court knew where

the unexplained allegation of criminal activity came from (the

county sheriff, via an unnamed informant). Here, the allegation of

criminal activity is just as unexplained and its source is even less

identifiable (an unknown Denver agency).

¶ 20 It may be true that there was strong and convincing evidence

that the 4Runner was stolen. But it was the prosecution’s burden

to present this evidence to establish probable cause at the

suppression hearing. Castaneda, 249 P.3d at 1122. And the

prosecution failed to do so.

¶ 21 We recognize that many cases in other jurisdictions have

grounded a determination of probable cause to arrest a driver in the

fact that the vehicle was listed as stolen in a database. But we are

unaware of any case holding that a vehicle’s listing as stolen in an

unidentified list or database of an unknown agency, by itself,

constitutes probable cause to arrest the vehicle’s driver. Rather,

many cases explain that the vehicle’s presence in a database

combined with other facts about the database’s reliability or facts

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discovered by the arresting officer amounted to probable cause.

See, e.g., Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir.

1998) (finding probable cause based on vehicle’s presence in

database and driver’s lack of proof of registration and title to vehicle

in his own name). Moreover, we are aware of at least one court that

has explicitly said that a vehicle’s mere presence in a stolen vehicle

database does not, on its own, provide probable cause to arrest its

occupant. Hafford v. State, 828 S.W.2d 275, 277 (Tex. App. 1992)

(stating that “notification from the mobile data terminal in the

patrol car that the vehicle in which Hafford was riding had been

reported stolen . . . is not sufficient, standing alone, to establish

probable cause for arrest”).

¶ 22 Perhaps recognizing the paucity of evidence the prosecution

presented at the suppression hearing, the Attorney General

suggests that we can consider information the police obtained after

the arrest and search to retroactively establish probable cause for

those actions. We cannot. See People v. Sotelo, 2014 CO 74, ¶ 41

(“[C]ourts may not use the benefit of hindsight in evaluating

application of the Fourth Amendment.”).

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¶ 23 In sum, we conclude that the prosecution failed to establish at

the suppression hearing that Orona’s arrest was supported by

probable cause. The arrest was therefore illegal. Accordingly, the

search incident to the arrest was also illegal. Because police

discovered the bank cards and driver’s license as a direct result of

these illegal acts, the court should have suppressed them. See

People v. Dyer, 2019 COA 161, ¶ 16 (evidence obtained as a direct

result of an illegal arrest or search must be suppressed). By

admitting them, the court violated Orona’s constitutional rights.

¶ 24 This error requires reversal. Evidence admitted in violation of

the Fourth Amendment and the exclusionary rule requires reversal

unless the error was harmless beyond a reasonable doubt. Id. at

¶ 17. The Attorney General bears the burden of proving

harmlessness beyond a reasonable doubt. Id. The Attorney

General presents no argument on this point.2 Accordingly, we must

reverse.

2 Indeed, we appreciate the Attorney General’s restraint based on

the apparent recognition that this error could not have been
harmless beyond a reasonable doubt.

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III. Disposition

¶ 25 The judgment of conviction is reversed, and the case is

remanded to the trial court for further proceedings consistent with

this opinion.

JUDGE LIPINSKY and JUDGE LUM concur.

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