People v. Godinas

• Decision Date: 22 November 1971
• Docket Number: No. 25264,25264
• Citation: 490 P.2d 945,176 Colo. 391
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Arthur Eugene GODINAS, also known as Arthur E. Godians and Cynthia Joyce Algien, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 945

490 P.2d 945

176 Colo. 391

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Arthur Eugene GODINAS, also known as Arthur E. Godians and Cynthia Joyce Algien, Defendants-Appellees.

No. 25264.

Supreme Court of Colorado, En Banc.

Nov. 22, 1971.

Carl Parlapiano, Dist. Atty., Tenth Judicial District, Daniel J. Sears, Deputy Dist. Atty., Tenth Judicial District, for plaintiff-appellant.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Darol C. Biddle, Deputy State Public Defender, for defendants-appellees.

DAY, Justice.

The defendants, Arthur E. Godinas and Cynthia Joyce Algien, were arrested and charged with possession of narcotic drugs and conspiracy to possess narcotic drugs. Defendants filed pre-trial motions to suppress the evidence seized at or about the time of their arrest. This motion was granted and consequently the People bring this interlocutory appeal challenging the correctness of this ruling.

The findings, as supported by the record, reflect that at about 8:00 P.M., several officers from the Pueblo Police Department and the U.S. Custom's Bureau with a warrant searched the home of the parents of one Parker and therein seized narcotics drugs. The validity of this search and seizure is not here in question. Parker's parents indicated that Parker had not been living with them but might be found at a place called 'The Hilton' to which the police then proceeded. In this regard, we note that there is substantial evidence to support the trial court's finding that 'The Hilton was a 'house,' and not an apartment, rooming, or boarding house, as asserted by the People.

As the police approached 'The Hilton', a resident emerged. The officers did not inform him that they were looking for Parker, nor did they ask permission to enter the house. Finding the front door ajar, two officers entered the house, and were in an area described as the foyer. The two officers approached an adjacent closed door and one knocked on the door of what was described as the living room, whereupon defendant Algien said 'come in.' At the suppression hearing, she explained that she had assumed that a resident of the house had knocked.

Once the officers were in the living room, they identified themselves and stated that they were looking for Parker. At this point one of the officers observed defendant Algien, seated 15 to 20 feet from him, holding a cellophane wrapper in which there appeared to be about 5 hand-rolled white cigarettes. From his training and experience he suspected these to be marijuana cigarettes. He also recognized defendant Godinas as a person whom an informer had at one time identified as possibly trafficking in narcotics. After asking defendant Algien what she had in her hand, both defendants were placed under arrest and advised of their rights. The cigarettes and plastic container which fell to the floor after the arrest were seized as evidence, and defendants were subsequently charged as noted above.

At the suppression hearing the trial court granted the motion to suppress under the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 7 of the Colorado constitution. We agree with the trial court's ruling.

I.

The People argue that the defendants have no standing to challenge the probable cause to arrest Parker. This statement begs the question. We assume, Arguendo, the police had probable cause to arrest Parker. But the test here is whether the officers' entrance into the house was proper. Defendants were legitimately on the premises and the evidence seized is proposed to be used against them, not Parker. Consequently, they have standing to question the legality of the seizure, and thus, the legitimacy of the presence of the police in the house. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). See also People v. Towers, Supreme Court No. 25241, Nov. 8, 1971, Colo. 490 P.2d 302.

II.

The People contend that the officers did not need a search warrant to merely inquire as to Parker's whereabouts, and, in any event, that they could not have procured such a warrant since under Crim.P. 41(b), that may be issued only to search for and seize property, not persons. This...