People v. Anderson, No. 26061

Docket NºNo. 26061
Citation536 P.2d 302, 189 Colo. 34
Case DateJune 02, 1975
CourtSupreme Court of Colorado

Page 302

536 P.2d 302
189 Colo. 34
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Alvin Lee ANDERSON, Defendant-Appellant.
No. 26061.
Supreme Court of Colorado, En Banc.
June 2, 1975.

Page 302

[189 Colo. 35]

Page 303

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Richard L. Tegtmeier, Larry S. Pozner, Deputy State Public Defenders, Denver, for defendant-appellant.

ERICKSON, Justice.

[189 Colo. 36] Alvin Lee Anderson was tried by a jury and convicted of felony-theft (receiving). 1971 Perm.Supp., C.R.S 1963, 40--4--401. 1 On appeal, he asserts that the trial court erred in not granting his motion to suppress two merchandise tags which were seized when his apartment was searched. He also alleges that a statement which he made following his arrest should not have been admitted as evidence. We affirm.

Anderson, a parolee, was under the supervision of Ronald Truax, an agent of the Colorado Division of Parole. On September 11, 1972, Truax met with the defendant Anderson's wife, who was also on parole, to determine whether or not she had violated her parole. In the course of the interview, Anderson's wife informed the parole officer that Anderson was living with her at her East Fountain address. Truax concluded that Anderson violated his parole by not reporting his change of address. He went to the apartment of Anderson's wife, and the apartment manager admitted him to the apartment. His search of the apartment indicated to him that a male was living there. In the course of his search, he saw three merchandise tags on the kitchen counter which he picked up and delivered to a detective on the Colorado Springs police force. The detective ascertained that two of the tags were traceable to stolen merchandise.

Based on the information supplied by Truax and the merchandise tags, a search warrant was obtained, and a television set

Page 304

which was in the apartment was seized, although it was not shown to be one of the items designated on the tags. Thereafter, Anderson was arrested and charged with felony-theft. He was given the Miranda warning and admitted that he knew that the television set had been stolen.

I.

The Search and Seizure Issue

The basis for the entry into the apartment was to determine whether Anderson was living there and had violated his parole by failing to report his change of address to the parole authorities. While searching the apartment, Truax took three merchandise tags which were on a counter and which provided the factual basis for a search warrant. The search warrant resulted in the seizure of a television set and felony-theft charges against Anderson. A timely motion to suppress was made and denied.

A. Anderson's Status and Rights as a Parolee.

Since Anderson was a parolee, the first question which we must resolve is whether his status as a parolee deprives him of all of the protections afforded by the Fourth Amendment. U.S.Const. amend. IV. The Fourth Amendment offers protection against unreasonable searches and seizures to all persons. However, what may be a reasonable search when a parolee is the subject of the investigation may be unreasonable when directed against another person. United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir. 1971). We [189 Colo. 37] cannot ignore the fact that parolees, as a class, pose a greater threat of criminal activity to law enforcement authorities than ordinary citizens. United States ex rel. Randazzo v. Follette, 418 F.2d 1319 (2d Cir. 1969).

Parole authorities must have the power to enforce parole conditions. To reach that end, the California courts have gone so far as to hold that a parole officer may investigate parole violations by searching a parolee's residence without probable, or even reasonable, cause to believe that a parole violation has occurred and without a search warrant. The reason behind the California courts' rule is that a parolee is deemed to be a prisoner under legal custody. In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 (1970); People v. Kanos, 14 Cal.App.3d 642, 92 Cal.Rptr. 614 (1971); People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782 (1970); People v. Thompson, 252 Cal.App.2d 76, 60 Cal.Rptr. 203 (1967); People v. Gastelum, 237 Cal.App.2d 205, 46 Cal.Rptr. 743 (1965); People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100 (1965).

We are not prepared to accept the position of the California courts or, on the other hand, to limit a parole officer's right to investigate parole violations by applying to such investigations the same panoply of Fourth Amendment rights which apply to other persons. State v. Cullison, Iowa, 173 N.W.2d 533 (1970). See White, the Fourth...

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28 practice notes
  • State v. Velasquez, No. 17242
    • United States
    • Supreme Court of Utah
    • October 25, 1983
    ...293 N.W.2d 365 (1980); Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979); Roman v. State, Alaska, 570 P.2d 1235 (1977); People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975); State v. Simms, 10 Wash.App. 75, 516 P.2d 1088 (1974). Since the rationale of the rule we adopt is that a "reasonable ......
  • People v. McCullough, No. 99SA317.
    • United States
    • Colorado Supreme Court of Colorado
    • July 3, 2000
    ...CASE LAW We have considered the constitutionality of a warrantless parole search on only one prior occasion. In People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975), we considered whether a parole officer's warrantless search of the apartment of his parolee, Alvin Lee Anderson, violated th......
  • State v. Ochoa, No. 08-0412.
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 2010
    ...570 P.2d 1235, 1243 n. 26, 1244 (Alaska 1977). A number of other state appellate courts came to similar conclusions. People v. Anderson, 189 Colo. 34, 536 P.2d 302, 305 (1975), superseded by statute, Colo.Rev.Stat. § 17-2-201, as recognized in People v. McCullough, 6 P.3d 774, 777-78 (Colo.......
  • People v. Davis, No. 87SA288
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 1990
    ...felony as a class "pose a greater threat of criminal activity to law enforcement authorities than ordinary citizens." People v. Anderson, 189 Colo. 34, 37, 536 P.2d 302, 304 (1975). Incarcerated felons, for their part, in certain circumstances may feel they have little to lose in committing......
  • Request a trial to view additional results
27 cases
  • State v. Velasquez, No. 17242
    • United States
    • Supreme Court of Utah
    • October 25, 1983
    ...293 N.W.2d 365 (1980); Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979); Roman v. State, Alaska, 570 P.2d 1235 (1977); People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975); State v. Simms, 10 Wash.App. 75, 516 P.2d 1088 (1974). Since the rationale of the rule we adopt is that a "reasonable ......
  • People v. McCullough, No. 99SA317.
    • United States
    • Colorado Supreme Court of Colorado
    • July 3, 2000
    ...CASE LAW We have considered the constitutionality of a warrantless parole search on only one prior occasion. In People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975), we considered whether a parole officer's warrantless search of the apartment of his parolee, Alvin Lee Anderson, violated th......
  • State v. Ochoa, No. 08-0412.
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 2010
    ...570 P.2d 1235, 1243 n. 26, 1244 (Alaska 1977). A number of other state appellate courts came to similar conclusions. People v. Anderson, 189 Colo. 34, 536 P.2d 302, 305 (1975), superseded by statute, Colo.Rev.Stat. § 17-2-201, as recognized in People v. McCullough, 6 P.3d 774, 777-78 (Colo.......
  • People v. Davis, No. 87SA288
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 1990
    ...felony as a class "pose a greater threat of criminal activity to law enforcement authorities than ordinary citizens." People v. Anderson, 189 Colo. 34, 37, 536 P.2d 302, 304 (1975). Incarcerated felons, for their part, in certain circumstances may feel they have little to lose in committing......
  • Request a trial to view additional results
1 books & journal articles
  • Is It Reasonable? A Legal Review of Warrantless Searches of Probationers and Parolees
    • United States
    • Criminal Justice Policy Review Nbr. 27-7, November 2016
    • November 1, 2016
    ...Wilson v. Arkansas, 752 S.W.2d 46 (1988) Yes NoCalifornia People v. Bravo, 738 P.2d 336 (1987) Yes NoColorado People v. Anderson, 536 P.2d 302 (1975) Yes NoConnecticut State v. Whitfield, 59 A.2d 21(1991)Administrative Directive 11.4Yes NoDelaware Statute: 11 Del.C 4321Pendleton v. Delaware......

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