*1 year that the defendant and victim had an altercation one nearly before immediately the homicide and that afterwards the had deceased threat- ened strike testimony. the defendant. We held was error to this And in Berger People, Colo. P.2d 228 evidence of threats and acts of violence made the defendant toward the deceased as long as five to the homicide were held years prior by this court to be ad- also, missible, of remoteness. See Rice objection over an (1913) (testimonial Colo. 136 P. evidence that 17 months before alleged defendant tried battery assault to hire the witness victim, admissible). commit held an assault on the It was not error in this case to admit of threats testimony made by the defendant six to prior nine months homicide. The trial court relevant, made a threshhold determination evidence was weight given exact to be such evidence jury. is a matter The is judgment affirmed.
No. 26413 People of the State of Colorado William John Mathis (542 1296) Decided December 1975. *2 Moore,
John P. General, Attorney Bush, John E. Deputy, James W. Wilson, Assistant, for plaintiff-appellee. Ranson,
Richard for defendant-appellant.
En Banc.
MR. JUSTICE HODGES delivered the opinion of the Court. Defendant Mathis was convicted of possessing more than one-half ounce marijuana, a felony. He appeals the trial court’s denial of his motion to suppress the evidence obtained when he was arrested and when his car was searched. He argues that no probable cause existed for the ar- rest or the search. We affirm the trial court’s finding probable cause.
I. The suppression hearing disclosed that Springs po- several Colorado lice officers were ordered to respond suspi- to a complaint citizen’s that cious people possibly involved in drug transaction were in a car 48-5-20, 1963; 12-22-322, 1Sections48-5-2 and C.R.S. now sections 12-22-302 and C.R.S. 1973. on the scene arrived home. Officer complainant’s near the of the car defendant) occupants the other two (the driver asked the time he smelled testified that at this Officer Lopez identification. for their and saw some within the vehicle” “coming from marijuana odor of an smoking could have been used that on the floorboard papers pipes marijuana. he
Meanwhile, that and advised Officer Ives arrived No identification. produce who failed occupants one of the should arrest Officer Ives at this time informed revealed that testimony expressly However, Ives marijuana spotted pipes odor. he detected the iden- removing passenger with no while was in the car wrappers the car. tification from Mr. Firkens who the street motioned across Ives was then *3 the his parked told him that defendant there. Mr. Firkens a house
lived in male and the three other inside. A black parties street with across the car trunk, car, a brown pulled the out got out of the opened defendant bag brown and the black man bag from the bag. They cellophane took a Officer Ives remem- went into a house which his He then pocket. put According to Mr. Firk- narcotics arrests. the scene of six earlier bered as ens, after the arrived. man never returned to the car the black scene, Of- on the consulting with officers that had arrived other
After and seized fourteen the trunk of the car opened Ives Lopez ficers bag. The defendant marijuana paper found in a brown bags of cellophane of was found one of marijuana a small quantity searched and was also pockets. his as to the exact time of the ar- of the officers differed testimony Officer testified that he drug charges. of defendant on the
rest the marijuana car the odor and in his after detected arrested the defendant hand, Ives, on the other Officer narcotics the suspected paraphernalia. saw was taken out of his the was not arrested until he that defendant testified frisked, interviewed Mr. Firkens. which after he had car and occurred
II.
all,
no
cause existed to
alleges, first of
probable
The defendant
the informant’s iden-
because
his initial detention
justify
to
police.
were not known
the
reliability
tity
cause is not al
We
without merit. Probable
argument
find this
Terry
a
for
v.
person
questioning.
to detain
necessary for an officer
ways
Ohio,
1868,
(1968);
U.S.1,
People
537
A reliable
tip
making
informant’s
can be a reasonable basis for
an investi-
Williams,
143,
1921,
gatory detention. Adams v.
32
U.S.
S.Ct.
Lucero,
39,
(1972);
L.Ed.2d 612
P.2d 468
People v.
182 Colo.
case,
(1973). In this
the record reveals
citizen
informant who
voluntarily reported
identified herself and who
was
suspicious activity,
covert,
a
likely
not
undercover informant
fabricate
in re-
to
Trontell,
turn for
or other
v.
188 Colo.
immunity
compensation. People
Lucero,
(1975);
People
supra;
P.2d 1124
People
Glaubman,
(1971).
175 Colo.
P.2d 103 which the defendant cites in of position, his support a case where the officer had no identity indication of fellow offi- cer’s informant or the circumstances in which tip given. the was
The defendant also to that no later argues cause existed probable his justify arrest or search of his car. He contends that neither Officer Lo or pez enough Officer Ives alone had information to constitute probable cause as did they not communicate their information to one another before him or his car.2 He that Officer arresting searching argues Lopez’s also be the car was testimony as odor should not believed since marijuana convertible and communicated this because officer never unaccountably alleged odor Officer Ives.
However, we do not have to reach
foregoing
most
be-
issues
we
cause
find that Officer Ives alone had sufficient information
proba-
ble cause to arrest the defendant and search his car. The radio dispatch,
*4
the officer’s observation of the suspected narcotics
the state-
paraphernalia,
ments of Mr. Firkens concerning
defendant,
the activities of the
and the
knowledge
officer’s
of
prior
the six
narcotics arrests at the house which the
entered,
fourth man
amounted to sufficient probable cause for the arrest.
The fact that Officer Lopez testified that he arrested the defendant
before
investigation
Officer Ives made his
is
As we
inconsequential.
stated
Stevens,
not,
in
the
an
supra,
v.
detention
arrest does
People
“labeling
as
se,
per
require
arresting official have had
to ‘ar-
cause
probable
rest’ the defendant with all the
The
that an ‘arrest’ entails.
consequences
proper inquiry is whether the seizure was reasonable which turns on
[2]
case, we do not have to address the
ing
obtained
States
rests and
Cir.
1966); People
1975);
The record is
1974);
contemporaneous
State v.
v. Nieto,
through
Wood v.
searches.
v. Jackson, 189 Colo.
Mickelson,
equivocal
their
‘whether officers’ was the justified to circumstances which scope in the reasonably was related de- Here, reasonably defendant was the in the first interference place.’” the an identification check and verification of in his car pending tained car, frisked, his removed from only He neighbor’s complaint. Ives after who consulted Officer the officers by taken to stationhouse probable investigations properly concluded had conducted his he drug charges. the defendant on cause existed to arrest to the timing propriety of the arrest was irrelevant Additionally, the by Officers Ives and since the search was conducted search there- investigations. his Ives’ information Ives had conducted only after the trunk without reference to the cause to search probable fore furnished See, Haggart, 188 Colo. 533 P.2d e.g., People time of arrest. (1975). no ex objection exigent is that circumstances Defendant’s final if trunk even proba search of the vehicle’s isted to warrantless justify However, here, where the forth occupant ble existed arrest him. cause to reasonably pre the officer could have custody, not in police of the car was or car and moved destroyed returned to the that he could have sumed S.Ct. v. Maroney, 399 U.S. evidence. See Chamber supra. (1970); People Haggart, exigent Such circum L.Ed.2d 419 stances, that the narcotics were probable suspect with cause coupled trunk, seizure. justified search and the warrantless Judgment affirmed. ERICKSON dissents.
MR. JUSTICE
dissenting:
ERICKSON
MR. JUSTICE
allegation that he was uncon-
dissent. The defendant’s
I respectfully
other
perspective
from some
detained merits consideration
stitutionally
making
stop
an investigatory
conduct in
A
officer’s
hindsight.
police
than
in his
immedi-
possession
the information
judged solely upon
be
should
investigation.
ately
prior
504,
Stone v. 174 Colo. suspicion be a reasonable on preceded must investigatory stop an engaged in or about to is either suspect officer that the part conjecture or will not Mere suffice. activity. suspicion engage criminal when detained the possessed only The from radio gleaned was second-hand information in the vehicle suspects suspicions. and uncorroborated relating citizen’s unverified dispatch *5 — — one not so reasonable if there was suspicions those foundation Nev- investigatory by police officers. stop to warrant an immediate as dis- ertheless, radio sketchy supplied armed with vehicle, an investi- initiated marched promptly Officer patch, occupants. eventually arrested gation, fact mere that an informant is a citizen who identifies herself over does not assure an officer of telephone investigating reliability her situations, justification a supply In some the un- subsequent stop. tested word a may police citizen-informant warrant re- immediate Williams, Adams sponse. 92 S.Ct. 32 L.Ed.2d U.S. provides: “[Wjhen the victim of a street police gives crime seeks immediate aid assailant, of his description or when a credible warns of a spe- informant — cific crime impending subtleties of the should hearsay rule not thwart an appropriate police response.”
Here, the information received by was not derived from the most, victim of a street crime. At the information supplied police was based upon speculation and suspicion. The were advised that suspicious people, possibly transaction, involved a drug in were car near the citizen-informant’s home.
The informant’s in this ease tip required further investigation on the of the officer part before a forcible of the could stop suspect be authorized. Williams, Adams supra. A few minutes’ independent observation by may well very have substantiated particularized the suspicions asserted the citizen-informant. as
Inasmuch the arrest was predicated upon information obtained during an arrest, unreasonable investigatory stop, the my opinion, was justified. not
I would reverse.