Gonzales v. People

• Citation: 156 Colo. 252,398 P.2d 236
• Decision Date: 11 January 1965
• Docket Number: No. 20322,20322
• Parties: Elmer GONZALES, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 236

398 P.2d 236

156 Colo. 252

Elmer GONZALES, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20322.

Supreme Court of Colorado, En Banc.

Jan. 11, 1965.

Rehearing Denied Feb. 1, 1965.

Donald L. Lozow, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

The information commencing this action charged Gonzales, in two counts, with possession of narcotic drugs in violation of CRS '53, 48-6-2. A jury found him guilty on both counts, and the court entered judgment and sentence. Gonzales brings error here.

On the basis of information furnished to him that narcotic purchases had been made from one Marsh, Sergeant Duane Borden, head of the Narcotics Division of the Denver Police Department, determined to arrest Marsh at his residence in Denver, Colorado. In order to prevent disposal of the narcotics before arrest was made, a detective was disguised as a Yellow Cab driver so that he could reach the door of the Marsh residence without being recognized as a policeman. The detective, so disguised, knocked on the door, and, when it was opened, showed his badge and said, 'You're under arrest.'

The detective and another officer then entered the house. As they walked in, they observed the defendant Gonzales and other members of the Marsh family seated at a table. One of the persons at the table was in the process of rolling marijuana cigarettes, and a tobacco tin containing marijuana was on the table. All those in the room were then told they were under arrest. A hand-rolled marijuana cigarette was found in Gonzales' topcoat, and when he was again searched on his arrival at the police building, the drug amidone was found in it. The marijuana, or cannabis sativa L., formed the basis for the first count of the information, and the amidone was the basis for the second count.

The information was filed on March 1, 1960. Because of numerous continuances, the appointment and withdrawal of counsel, and the entry and withdrawal of a plea of not guilty by reason of insanity, the matter did not come to trial until April 4, 1962. On that date, Gonzales moved, under Colo. r.Crim.P. 41(e), to suppress the evidence acquired by the police department from his topcoat. After hearing testimony, the trial court denied the motion on the ground that the search was incident to a lawful arrest. The case then went to trial, and Gonzales was convicted of possession of narcotic drugs on both counts of the information.

Gonzales' major argument is that the marijuana and amidone were obtained by the police in violation of the Fourth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment, and that therefore the motion to suppress should have been granted. At the outset, we note that although Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, making illegally obtained evidence inadmissible in state courts, was not the law when the arrest took place--February 24, 1960--it had become the law at the time of the motion to suppress on April 4, 1962, and was binding on the district court at that time. It was not Mapp, however, which made unreasonable state searches and seizures illegal under the Fourth Amendment to the United States Constitution; for in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, it was held that the Fourth Amendment applied also to the states because of the due process clause of the Fourteenth Amendment. Wolf did not impose the exclusionary rule on the states. On the contrary, it allowed the states to develop their own rules to deter unlawful searches and seizures.

The United States Supreme Court, thereafter, became dissatisfied with remedies afforded by the states to one who was the victim of illegal search and seizure. It thereupon promulgated Mapp which required the exclusion of illegally obtained evidence in state courts as well as in federal courts. Thus, Mapp did not change the law with respect to the legality of state searches and seizures; rather it dealt with the rules of admissibility of evidence in state courts. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, Fn. p. 45. From the moment Mapp became law it bound all state trial courts to exclude illegally obtained evidence.

We turn now to the problem raised by the search and seizure in this case. Since the validity of Gonzales' arrest, and the subsequent search of his person, depends upon the validity of the search conducted by the officers in the Marsh home, we must first decide whether the officers legally gained admittance to the Marsh home. As noted, they had neither search nor arrest warrants. Ordinarily, one's house may lawfully be searched without a search warrant when the search is incidental to a valid arrest at the house, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, Hernandez v. People, 153 Colo. ----, 385 P.2d 996, and such a search is legal even though it would have been possible to procure a search warrant, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

The lawfulness of arrests without warrants by state officers for state offenses is determined by state law. Ker v. California, supra. CRS '53, 39-2-20 (1960 Perm. Supp.) authorizes arrests without warrants by an officer:

'* * * for a criminal offense committed in his presence; and * * * when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.'

The terms 'probable cause' and 'reasonable grounds' are substantially equivalent in meaning. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Ker v. California, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69...