People v. Glaubman

• Decision Date: 01 June 1971
• Docket Number: No. 24993,24993
• Citation: 485 P.2d 711,175 Colo. 41
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randolph J. GLAUBMAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 711

485 P.2d 711

175 Colo. 41

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randolph J. GLAUBMAN, Defendant-Appellant.

No. 24993.

Supreme Court of Colorado, En Banc.

June 1, 1971.

Stanley F. Johnson, Dist. Atty., Robert M. [175 Colo. 44] Jenkins, Chief Deputy Dist. Atty., A. James Moravek, Deputy Dist. Atty., Boulder, for plaintiff-appellee

Taussig, McCarthy & Snyder, Michael J. McCarthy, Boulder, for defendant-appellant.

ERICKSON, Justice.

The defendant, Randolph Jay Glaubman, filed a motion to suppress certain evidence that was seized from him in the course of a narcotics investigation. The defendant's motion was heard and denied, and pursuant to C.A.R. 4.1, the defendant prosecutes this interlocutory appeal.

Randolph Jay Glaubman was one of the two occupants of room 250 in the Royal Inn Motel in Boulder, Colorado. Robert Benson registered for the room and indicated that there would be two in the party at the time he signed the registration card. The defendant, Glaubman, was seen in the lobby of the motel with Robert Benson on several occasions. On one occasion, the manager of the motel, Linda Brown, overheard a conversation between Benson and the defendant in which the words 'selling acid' were used. The record reflects that Benson and the defendant occupied room 250 for about ten days, and during this period, the manager made a room inspection after the occupants refused maid service. The manager entered the room with the maids to see that the room was properly maintained. In the course of her inspection, she saw the defendant, Glaubman, in the room that was taken out in Benson's name. The manager encountered difficulty in collecting the motel rent and called the room several times, asking for Robert Benson. Each time, the person who answered said, 'He isn't here--this is Randy.' After several suspicious happenings, the manager called the police. She informed the police that the license number on the car, placed on the registration card by Benson, was incorrect when she checked the registration card against the license plate on the car driven by Benson. At that point, she checked Benson's home address in Indiana, as it appeared on the registration card, and found there was no such address. Following her discovery of the false information on the registration card and the failure to pay rent, she went to room 250 on a routine inspection; and while in the room, she noticed a considerable number of seeds scattered about the floor, which she identified as marijuana seeds. Her background in the motel business had extended over a period of more than thirteen years; and during that time, she had, on twenty-five or thirty occasions, observed material which was identified by law enforcement officials as marijuana. After noting the presence of the marijuana seeds in the room, she notified the police and advised them of the presence of the marijuana seeds in the room.

The police undertook an investigation and found that Benson's car had been rented at a local agency and that the name under which the car had been rented was Benson's, but that a different spelling had been used and that a local address which was used was not the address of the motel. The police also learned that Benson had offered a California driver's license for identification when he rented the car.

With the information obtained from the manager of the motel and the information that was unearthed in the course of the investigation, the police officers applied for a search warrant on May 20, 1970. In executing the warrant, Benson was found in the room with a large supply of narcotic drugs and was arrested.

On May 22, 1970, detectives of the Boulder Police Department were informed by fellow officers that probable cause existed for the arrest of Randy Glaubman. The charge that was to be filed against Glaubman was reported by the detectives' fellow officers to be possession of narcotics and possession with intent to sell. The detectives were advised by their fellow officers that the defendant was on his way to the Royal Inn Motel and should be there in a few minutes. The detectives were also told to contact the motel manager, so that they could readily identify the defendant. When the detectives reached the motel, they contacted the manager, who took them to room 250. A stakeout was planned, but before the officers could obtain a location for the stake-out, the defendant, Randolph Jay Glaubman, appeared. When he saw the police officers, he started to walk in a different direction, and his pace quickened. The officers followed; and when they approached a stairway, with one flight of stairs leading to the roof and one to the lower level, they found that Glaubman had gone to the roof and was hiding in the shadows on the roof.

The defendant was arrested, and in a subsequent search, which was made incident to the arrest, the officers seized a purse and a book which Glaubman held in one hand and also took a leather satchel which the defendant had in his other hand. The detectives also saw, and later searched, a leather pouch which Glaubman had tied to his pants. At the hearing on the motion to suppress, Detective Spotts said that the 'pouch was dangling from his britches and when it was opened, it contained hashish.' The defendant's purse was also opened, and it contained LSD. The purse and the pouch were both searched at the detective bureau at the police station and were opened without a warrant. Before opening the satchel, the detectives obtained a search warrant, and thereafter, upon opening the satchel, the detectives found that it contained marijuana.

To support the motion to suppress, the defendant contends that the warrant to search room 250 was defective, because the warrant was based solely on uncorroborated hearsay statements of Linda Brown, the manager of the motel. (The questioned affidavits appear as Appendix A and Appendix B.) See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); People v. Brethauer, Colo., 482 P.2d 369 (1971). As a further basis for suppressing the evidence, defense counsel urges that the arrest of the defendant and the seizures made subsequent thereto, were illegal, since they were premised solely on information gained from the illegal search of room 250. Defense counsel also contends that evidence was seized pursuant to a warrantless search not incident to the defendant's arrest.

I.

In analyzing this rather complex set of circumstances, we must first determine whether the affidavit which was presented to the county judge to obtain a search warrant for room 250 was legally sufficient. (The affidavit appears as Appendix A.) The police prepared the affidavit after receiving information from Linda Brown. She related, among other things, that she observed marijuana seeds in room 250 and was able to identify the defendant, Randy Glaubman, and Robert Benson. She had no reason to falsify information or to mislead the police.

Counsel for the defendant would have us apply the same rules to a citizen who witnessed the perpetration of a crime in the motel which she was managing that were applied to the so-called confidential In Edmondson v. United States, 402 F.2d 809 (10th Cir. 1969), a search warrant obtained by FBI agents was challenged on basically the same grounds that the defendant is urging us to recognize as error in this case. There, the defendant's identification was attributed to some wide-awake citizens in the town of Nash, Oklahoma, who identified his car. Judge Hill, in sustaining the validity of the warrant, said:

reliable informant in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The two-pronged test announced in Aguilar v. Texas, Supra, requires that the officer establish: (1) the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Defense counsel argues that the affidavit does not include facts which show that Linda Brown was credible or her information reliable.

'At the outset it is to be noted that searches made pursuant to a warrant are much preferred over the hurried actions of police officers acting without benefit of the deliberate determinations of a neutral magistrate. In fact, in a doubtful or marginal case a search under a warrant may be sustainable where without one the search would fall. Nonetheless, in reviewing the propriety of such a search, the requisite probable cause must be found and it must be demonstrated solely by the information brought to the attention of the magistrate. It is essential then that the facts as set forth in the underlying affidavit clearly substantiate the action taken, for although the reviewing court will pay substantial deference to the judicial determination rendered, 'the magistrate (must) perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police.' Consequently probable cause cannot be established by affidavits which are purely conclusory and merely state that the affiant or his informant believe that probable cause exists. It is permissible, however, for the affidavit to be based upon hearsay if the magistrate is informed of the underlying circumstances from which the affiant concludes that the hearsay is credible.

'After a careful application of the principles enunciated above, we conclude that the warrant was validly issued. Appellant stresses the fact that the affidavit is based in part upon hearsay information furnished by the residents of Nash, Oklahoma. Recognizing that reliance upon hearsay is permissible, appellant nevertheless urges that there is nothing in the affidavit attesting to the reliability of the Nash residents or the credibility of the information they suppl...