Bean v. People

• Decision Date: 29 January 1968
• Docket Number: No. 22456,22456
• Citation: 436 P.2d 678,164 Colo. 593
• Parties: Benny A. BEAN, also known as Benny King, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 678

436 P.2d 678

164 Colo. 593

Benny A. BEAN, also known as Benny King, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22456.

Supreme Court of Colorado, En Banc.

Jan. 29, 1968.

Edward H. Sherman, Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

A jury found plaintiff in error, Benny A. Bean also known as Benny A. King, guilty of possession of narcotics, and he was sentenced to thirty months to seven years in the State Penitentiary. Plaintiff in error will hereinafter be referred to as defendant, or as Bean.

Bean contends that the District Court of the City and County of Denver erred in admitting into evidence (1) marijuana and other evidence seized at defendant's residence under a search warrant alleged to have been improperly issued, and (2) a statement signed by defendant which is alleged to have been involuntary. It is further asserted that if either of these items is found to have been improperly admitted, the evidence would be insufficient to sustain the guilty verdict and the judgment must be reversed. Since we find adversely to the defendant on both of his allegations of error, we affirm the judgment entered on the jury's verdict.

I.

Defendant's first assignment of error attacks the sufficiency of the affidavit given by the police officer to establish probable cause for issuing the search warrant which resulted in seizure of marijuana, marijuana seeds and cigarette papers from his apartment. Invalidity of the warrant under the Fourth Amendment to the United States Constitution and Article II, section 7, of the Colorado Constitution would require exclusion of the evidence seized from the trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Hernandez v. People, 153 Colo. 316, 385 P.2d 996.

The affidavit describes the premises sought to be searched as defendant's basement apartment and the things sought to be seized as narcotics, including marijuana, and states as grounds the seeking the warrant the following:

'* * * Detective Steve Metros (affiant) received information that BENNY KING DPD#74662 is actively engaged in the sale and traffic of Marihuana, on July 6, 1964 'Bean' entered a guilty plea for Use of Narcotics in Division #10 with a Possession of Narcotics count dismissed. Detective Steve Metros has received infromation (sic) previously from students at MANUEL (sic) HIGH SCHOOL that 'Bean' was selling Marihuana. On July 7, 1964 Detective Metros received information from a previously reliable informant that 'Bean' is again selling Marihuana at the Basement apartment of 3500 Filmore (sic) Street in the rear,'

Defendant filed a pretrial motion to suppress this evidence, which was denied. He also objected to its admission at the trial and in his motion for new trial. He argues here that the affidavit is insufficient on its face because it sets out 'mere conclusions' of the affiant without stating facts upon which the magistrate issuing the warrant can make an independent judgment as to probable cause, citing Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Giordenello v. United States, 357 U.S. 480, 79 S.Ct. 1245, 2 L.Ed.2d 1503; Hernandez v. People, 153 Colo. 316, 385 P.2d 996. None of these cases supports Bean's position.

The situation at bar is similar to that in Jones, supra, where it was held that an affidavit based on information supplied by an unnamed informant is sufficient to support issance of a warrant, provided it is corroborated by other matters within the officer's knowledge. The 'other matters' in Jones included 'other sources of information' and the fact that the defendant was known by police to be a user of narcotics, both of which elements are present here. This affidavit is not, therefore, the 'mere affirmance of the belief or suspicion on the officer's part' which this Court held to be insufficient in Hernandez, supra. Nor is it a bare statement that officers had 'reliable information from a credible person' which was held insufficient to establish probable cause in Aguilar, supra. See also the recent pronouncement of the United States Supreme Court in McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, which held that information from unnamed informers similar to that here constituted reasonable grounds for a warrantless arrest and the subsequent search incident thereto.

We therefore hold that this affidavit, based on information supplied by a previously reliable informant and corroborated by previous reports of similar activities and affiant's knowledge of defendant's prior involvement with narcotics, was sufficient to support the magistrate's determination that there was probable cause to issue the search warrant. The evidence, having been seized under a valid warrant was properly admitted against defendant at the trial.

II.

The statement which defendant alleges to have been improperly admitted at the trial was in his own handwriting, signed by him, and in the following words:

'The stuff, marihuana, found at 3500 Fillmore in the basement did not belong to no one but myself.'

Defendant argues that under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v....