Dickerson v. People

• Decision Date: 17 July 1972
• Docket Number: No. 24086,24086
• Parties: Charles Riley DICKERSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1196

499 P.2d 1196

179 Colo. 146

Charles Riley DICKERSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24086.

Supreme Court of Colorado, En Banc.

July 17, 1972.

Rehearing Denied Aug. 28, 1972.

Kattelkamp & Vento, Donald G. Drummond, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Dorothy E. Binder, Special Asst. Atty. Gen., Jack E. Hanthorn, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

Charles Riley Dickerson, the defendant below and hereinafter referred to as appellant or by name, appeals from his conviction for possession of marijuana, in violation of C.R.S.1963, 48--5--2.

Appellant, who was in the United States Army at the time of his apprehension on the above-mentioned charge, was observed by the police, military and customs officials to be associating with known narcotics users and peddlers in El Paso, Texas. On November 27, 1968, information from a reliable source in El Paso was forwarded by a customs official in El Paso to Pueblo Police Officer John Koncilja that appellant would arrive in Pueblo with a shipment of marijuana. On the morning of November 27, 1968, appellant and a friend departed El Paso in her car--a 1967 MGB--for Pueblo, ostensibly to visit his parents. That evening shortly after Dickerson arrived at his patents' home, Officer Koncilja and one Officer Crossno drove there and took note of the presence of appellant's friend's car which had been described in the information as a car which possibly would be used to transport the marijuana.

The officers identified themselves and asked appellant to come outside the house. They mentioned the information from El Paso and asked if they could search the car, notifying appellant that he had a right to refuse. Appellant produced the keys to the car and unlocked the trunk. A paper sack containing vegetable matter, believed by the officers to be marijuana, and concomitant paraphernalia, were removed from the trunk and appellant and his friend were arrested. The People's witness stated that when taken in custody, appellant admitted the marijuana was his.

Prior to trial, motions to suppress, Inter alia, were filed by both parties. The trial court granted the Motion to Suppress as to the friend and denied the same and all other motions as to appellant. Trial was to a jury on February 7 and 8, 1969, at the conclusion of which a guilty verdict was returned against appellant for possession of marijuana.

Appellant here contends that four errors compel reversal of his conviction: (1) The marijuana in question was obtained through an illegal search and seizure and should not have been admitted; (2) the trial court erred in allowing testimony as to appellant's admissions that he smoked two marijuana cigarettes on the trip from El Paso to Pueblo, as those acts testified to were separate and distinct from the offense charged, but if admissible, then a limiting instruction should have been given regarding such evidence; (3) the trial court erred in requiring appellant to submit to cross-examination in the pretrial suppression hearing; and (4) the trial court committed error in not allowing appellant to examine written statements of prosecution witnesses upon appellant's Rule 16(b) Motion. We do not view appellant's arguments as meritorious and affirm the judgment of the district court.

I.

Appellant's first argument relates to the admission over objections of the marijuana seized in the search of the car in which appellant rode to Colorado from Texas. Specifically, appellant contends the automobile search was illegal and the contraband unlawfully seized, and as such, that those items should not have been admitted against the appellant. Our inquiry into the circumstances of this case directs us to the conclusion that appellant cannot prevail on this point.

The prohibitions of the Fourth Amendment are intended to protect only against unreasonable searches and seizures and not every search without a warrant is unreasonable or illegal. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. See Larkin v. People, Colo., 493 P.2d 1. It is clear that one may waive Fourth Amendment protections by giving voluntary consent to a search. The voluntariness of the consent given must be determined from an examination of the facts and circumstances surrounding that consent. People v. Reyes, Colo., 483 P.2d 1342; People v. Renfrow, 172 Colo. 399, 473 P.2d 957; Phillips v. People, 170 Colo. 520, 462 P.2d 594; Capps v. People, 162 Colo. 323, 426 P.2d 189.

The record in the present case reveals that there is evidence to show that the appellant was informed of his right not to allow the officers to search the vehicle in question here without their first obtaining a warrant. He not only consented to the search but unlocked the trunk himself with a key which he produced from his pocket. He was under no duress or coercion, and the trial court found that he knowingly and intelligently waived his Fourth Amendment rights by consenting to the search. People v. Reyes, Supra; People v. Williams, 173 Colo. 499, 480 P.2d 563. There is evidence in the record which supports that finding.

Under the circumstances here, appellant relinquished his claim to privacy in the contraband and therefore, he was not the victim of an illegal search and seizure. This being so, the evidence seized was admissible against him. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

II.

Appellant next contends that he was unfairly prejudiced by testimony that he stated that he smoked two marijuana cigarettes during his trip to Colorado. His argument is that the damaging testimony was as to criminal acts separate and distinct from the crime for which he was on trial, and that it was highly prejudicial, especially in the light of the fact that no limiting instruction was given.

Evidence that appellant smoked two marijuana cigarettes was elicited by the People to show knowledge on the part of appellant with regard to the possession of marijuana. It was not adduced to show another crime, nor to show that appellant was evil and capable of committing crimes. The record reveals that the activity confessed to by appellant was a part and parcel of the entire criminal transaction entered into by appellant. It was no wholly independent of the offense charged. White v. People, Colo., 494 P.2d 585. Therefore, the limiting instruction announced in Stull v. People, 140 Colo. 278, 344 P.2d 455, was not necessary after the testimony here in question was offered, and that testimony was properly admitted.

III.

Appellant's third assertion is that he was unconstitutionally compelled to testify against himself on cross-examination at the pretrial suppression hearing. He further asserts that the scope of questioning went beyond the scope of direct examination and was irrelevant and immaterial with respect to the Motion to Suppress.

To support his contention, appellant cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. His reliance on Simmons,...