People v. Feltch, 25104

• Decision Date: 26 April 1971
• Docket Number: No. 25104,25104
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lester Paul FELTCH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1335

483 P.2d 1335

174 Colo. 383

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lester Paul FELTCH, Defendant-Appellant.

No. 25104.

Supreme Court of Colorado, En Banc.

April 26, 1971.

David L. Wood, Dist. Atty., L. Duana Woodward, Deputy Dist. Atty., Fort Collins, for plaintiff-appellee.

Rollie Rogers, State Public Defender, Denver, Edwin L. Felter, Jr., Don L. Nelson, Deputy Public Defenders, Fort Collins, for defendant-appellant.

ERICKSON, Justice.

This interlocutory appeal questions the arrest of Lester Paul Feltch and his subsequent search, together with the seizure of certain marijuana debris and a coat which he was wearing. A motion to suppress was duly made in the District Court. Following a hearing, the arrest was upheld, and the search and seizure were held to be incident to a lawful arrest. Under the provisions of C.A.R. 4.1, the defendant appeals.

The only issue here is whether the officers had probable cause to arrest the defendant. The facts which we are asked to consider as providing probable cause for the arrest come from a telephone call by an unidentified and unknown female informant. On October 25, 1970, Officer James Kyle of the Fort Collins, Colorado, Police Department responded to this call from the unidentified famale informant who complained to the police dispatcher that she had heard loud, obscene language and had smelled the odor of marijuana coming from the area of St. Luke's Episcopal Church in Fort Collins. Officer Kyle went to the scene and found one group of people playing football in a nearby field and saw approximately nine juveniles attired in 'hippy costumes, accentuated by long hair,' gathered in a group on the church lawn. As Kyle and another police officer approached the group on the lawn, the group dispersed, and four juveniles, not including the defendant Feltch, entered the church. Officer Kyle followed the juveniles inot the church and noted that one juvenile attempted to dispose of what appeared to be a narcotic drug. This person was promptly put under arrest, and the seizure of narcotics from him is not contested. Immediately thereafter, all of the remaining juveniles that comprised the original group were arrested and searched. At the suppression hearing, Officer Kyle stated that the arrests were based upon his conclusion that 'hippies' were more likely to possess narcotics than other members of the public. Officer Kyle pointed out that since one member of the group had narcotics, there was a good possibility that the rest of the group might be hiding narcotic drugs on their persons. He said that his training caused him to arrest the entire group, because if he didn't, the group might help a suspect divest himself of narcotics which the group had in its possession.

The substance of all definitions of probable cause is a reasonable ground for belief of guilt. The United States Supreme Court, when confronted with the problem of probable cause in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), reiterated some of its earlier statements on the subject:

"In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, Supra, 338 U.S. at page 175, 69 S.Ct. (1302) at page 1310 (93 L.Ed. 1879). 'Probable cause exists where the facts and circumstances within (the arresting 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.' Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 (69 L.Ed. 543).'

This Court has also discussed the meaning of probable cause on numerous occasions. See, for example, People v. Brethauer, Colo., 482 P.2d 369, announced March 8, 1971; People v. Nelson, Colo., 474 P.2d 158 (1970); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); Martinez v. People, 168 Colo. 314, 451 P.2d 293 (1969); Lavato v. People, 159 Colo. 223, 411 P.2d 328 (1966); Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965), cert. den., 381 U.S. 945, 85 S.Ct. 1788, 14 L.Ed.2d 709 (1965).

The burden of proving the existence of probable cause for an arrest without a warrant is on the prosecution. People v. Valdez, Colo., 480 P.2d 574 (1971). Here, the basic issue is whether the furtive acts of one of this hippy group, which was apparently...