Lavato v. People
| Citation | 411 P.2d 328,159 Colo. 223 |
| Decision Date | 07 February 1966 |
| Docket Number | No. 21266,21266 |
| Parties | Robert E. LAVATO, also known as Robert E. Lovato, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles S. Vigil, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., George H. Sibley, Sp. Asst. Atty. Gen., Denver, for defendant in error.
Robert E. Lavato, hereinafter referred to as Lavato, seeks reversal here of a judgment sentencing him to a term of from five to ten years in the State Penitentiary.
Lavato was charged in the trial court with the unlawful and felonious possession of a narcotic drug (cannabis). Thereafter, he filed a timely motion to suppress as evidence, cigarettes and tobacco allegedly containing elements of a narcotic drug upon the ground that these items had been taken from him as part of a seizure incident to an unlawful arrest in contravention of his rights under the Federal and State Constitutions.
At the hearing on the motion to suppress, the evidence established the following facts. On the night in question, Denver Police Officer J. F. Thirsk received information that Lavato had marijuana in his possession. The information came from an informer who was well known to the officer and who had given him accurate information concerning narcotics violations on prior occasions. In addition, the informer identified Lavato to the officer by name and later picked him out of a group of men seated in a Larimer Street cafe.
Officer Thirsk testified that he entered the cafe and spoke to Lavato. When Lavato walked out, Thirsk followed and told him that he wanted to question him. At this point, and based upon the information which the informer had supplied, Thirsk told Lavato that he had reason to believe that he had marijuana cigarettes in his possession. When asked if this was true, Lavato denied the accusation. Thirsk, without a warrant, then commenced a search of Lavato. During the process of the search, Thirsk was interrupted several times by passersby. During one of these interruptions, Thirsk had his eyes turned away from Lavato. When he looked back, he saw a brown package drop from Lavato's right hand. There was no other debris within five feet of where the two men were standing. The officer promptly seized the package which contained the cigarette in question. Thirsk then took Lavato and the evidence to police headquarters. The cigarettes, as well as the debris from Lavato's pockets, were identified as canabis, commonly known as marijuana, one of the prohibited drugs under Colorado law.
The trial court found that these particular facts amounted to probable cause upon which an arrest was warranted. It therefore held that the search and seizure was lawful as incident to a valid arrest. Accordingly, the motion to suppress was denied and the seized articles were admitted into evidence on the trial of the case.
Lavato raises the following issues for our determination: (1) The exhibits taken from him were admitted into evidence in violation of his constitutional rights since the exhibits were illegally obtained as a result of an unlawful arrest, search and seizure. (2) A non-existent crime was charged because the narcotics statute attempts an unlawful delegation of powers to the State Board of Health. (3) Counsel who was appointed to represent defendant was replaced by a less experienced attorney which amounted to a deprivation of due process under the United States Constitution. The other contentions of the defendant are but restatements of the three enumerated here.
We hold the officer's search of Lavato and the admission into evidence of the marijuana seized thereunder did not violate the defendant's constitutional rights since they were incident to a lawful arrest based upon probable cause.
1960 Perm.Supp. C.R.S., section 39-2-20 authorizes an officer to arrest an individual without a warrant when a felony has in fact been committed, and the officer has reasonable grounds for believing that the person to be arrested has committed it.
We said in Gonzales v. People, 156 Colo. ----, 398 P.2d 236, that probable cause exists when the facts and circumstances of which the officers 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 by the persons sought to be arrested. These are not to be measured by the yardstick of legal technicality but...
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