People v. Henry, s. 24897

• Decision Date: 16 February 1971
• Docket Number: Nos. 24897,24898,s. 24897
• Citation: 173 Colo. 523,482 P.2d 357
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wolcott HENRY, Defendant-Appellant. PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen Wolcott HENRY, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 357

482 P.2d 357

173 Colo. 523

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wolcott HENRY, Defendant-Appellant.

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen Wolcott HENRY, Defendant-Appellant.

Nos. 24897, 24898.

Supreme Court of Colorado, En Banc.

Feb. 16, 1971.

Worth F. Shrimpton, Dist. Atty., John L. Baker, Deputy Dist. Atty., Granby, for plaintiff-appellee.

Robert L. Pitler, Denver, for defendant-appellants.

GROVES, Justice.

There are interlocutory appeals by defendants charged with unlawful possession of marijuana. They seek review of a ruling of the trial court which denied a motion to suppress evidence.

The defendants occupied a cabin near Grand Lake. A district attorney's investigator, Henderson, met a man named Sawyer at the office of the deputy district attorney in Granby on the evening of March 27, 1970. Henderson and Sawyer were not acquainted with each other, although Henderson had seen Sawyer in the Grand Lake area previously. Sawyer told Henderson that earlier in the day he had been in the Henry cabin, that the Henry brothers possessed marijuana, some of which had been smoked during that visit, and that he, Sawyer, had been invited to return and was given permission to bring a friend. Henderson became the 'friend' under the assumed name of 'Tony.'

Law enforcement officers secreted themselves in the area of the Henry cabin that night. Sawyer and Henderson went to the cabin and were admitted by Roger Henry. One Esther Altepeter was in the room into which they were admitted. Roger served wine to Sawyer and Henderson. Roger and Henderson discussed drugs for a while, and then Roger produced a bowl, covered by a paper plate, and cigarette papers. Roger rolled two cigarettes, using the contents of the bowl, which were recognized by Henderson as 'manicured' marijuana. Roger gave one of the cigarettes to Sawyer and appeared to be about to give the other to Henderson when the officers on the outside were heard approaching. As the other officers were about to enter Henderson placed Roger under arrest, and as soon as the officers had entered he also placed Esther under arrest.

Stephen Henry was asleep upstairs. Henderson and another officer then proceeded upstairs to arrest Stephen. While they were going up the stairs. Esther dumped the contents of the bowl into the fireplace. Stephen was awakened and arrested. Before leaving with the prisoners Henderson took the bowl, the paper plate, an ash try containing cigarette ashes, and a jar which was on a bookcase shelf, which, according to Henderson, contained marijuana.

The evidence was conflicting as to whether or not the jar was in plain view. Henderson testified that it was. The court made the finding that it was. Under the circumstances, the finding will not be disturbed since it is based on competent evidence.

After the prisoners had been placed in jail, the deputy district attorney prepared an affidavit which Henderson executed. Henderson drove to Steamboat Springs and on the basis of the affidavit obtained a warrant to search the Henry cabin. The cabin was then searched. By this time it was 7:30 or 8:00 a.m. of the following day. Marijuana and articles connected with drug use were found in the search.

I

The primary argument for the defendants is as follows: (1) Because Henderson proceeded to the cabin with the intention of observing narcotics activity, and making arrests if he did so observe, his entry onto the premises constituted an illegal search; (2) the arrest of the defendants was without probable cause because the facts constituting probable cause are the fruits of Henderson's illegal search; (3) the seizure of items 'incident to arrest' was illegal because the arrest was illegal since the search was illegal, and also because the items were not in plain view; and (4) the subsequent search of the premises pursuant to warrant was illegal because the warrant was issued without probable cause, since the original search which started the whole sequence was illegal, and everything learned subsequently was 'fruit of the poisonous tree.'

The fallacy in this argument is that the initial seizures were an incident of the arrest--not a search--and the arrest was by reason of Rober's commission of a crime in Henderson's presence, I.e., the possession of marijuana. The visit of Henderson to the Henry cabin at the invitation of the defendants cannot be said to be a search. People v. Greathouse, Colo., 476 P.2d 259 (1970).

Rather, the question is whether any constitutional right of the defendants was violated by the ruse practiced by Henderson, thereby invalidating the arrest. The only mention of constitutional rights in any of the briefs is contained in the defendants' opening brief. Here it is argued that this was an unlawful search under the fourteenth amendment of the United States Constitution. As already indicated, we are not concerned with a search, but rather with an arrest. If the arrest is valid, there can be no question that the initial seizure of articles was incident to that arrest and likewise valid. If the arrest was invalid, so was the seizure.

We have considered whether the arrest was invalidated by the provisions of U.S.Const. Amend. IV (as made applicable by U.S.Const. Amend. XIV) and its counterpart of Colo.Const. art II, § 7. In other words, under these provisions were the rights of the defendants to the security of their home and not to have their privacy invaded violated by the deception practiced by Henderson? These provisions, of course, require probable cause for an arrest; but there is no question here about probable cause. The reason that these constitutional provisions may be important is because of the portions thereof which protect individuals in the security of their homes. Was a right of privacy violated by Henderson and, if so, did that invalidate the arrest?

Our attention has not been called to any case in which an arrest made by reason of observed violation of law has been declared invalid because of the fact that the arresting officer was invited into a home under a misapprehension of his identity by the home's occupant, which misapprehension was known to the arresting officer. There was an analogous situation in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). There, an associate of the defendant was invited into the defendant's hotel room, the defendant not knowing that the associate was acting as an undercover agent in making the visit. The question was whether incriminating statements made by the defendant under those circumstances were admissible in evidence. It was there stated as follows:

'Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Indeed, the Court unanimously rejected that very contention less than four years ago in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462.'

If pretense of this kind does not render prejudicial statements inadmissible, certainly the same sort of pretense would not invalidate an arrest.

The defendants urge Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965), as authority for their position. There, police officers, acting without a warrant, heard someone running when they arrived at an apartment, broke down the door, and conducted a search. That is an entirely different situation than the instant one and, besides, the question of search and not arrest was involved. In Wilson the arrest followed the search. The People have cited Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969). There the defendant, not knowing his invitee was a sheriff, invited him to his home as a possible purchaser of stolen merchandise. It was held that, when one opens his home to the transaction of business and invites another to come and trade with him, he breaks the seal of sanctity and waives his right to privacy. While Patterson is not controlling, we do find it somewhat analogous and supportive of the result here.

We hold that there was a valid arrest and, the articles having been seized incident to that arrest, the court correctly denied the motion to suppress with respect to those articles.

II

It is argued that the arrest of Stephen Henry was without probable cause. This is a subject which may not properly be considered under a motion to suppress, and cannot properly be the subject of an interlocutory appeal. Crim.P. 41 and C.A.R. 4.1. See People v. Thornburg, Colo., 477 P.2d 372 (1970).

III

With respect to the articles seized upon execution of the search warrant, the defendants argue that this was the fruit of an illegal search and that it was not based upon probable cause. We have already disposed of the 'poisonous tree' matter. The facts recited in Henderson's affidavit, upon which the search warrant was predicated, were sufficient. There is no merit in the argument that the affidavit did not contain All of the facts observed and heard by Henderson while in the cabin.

IV

The search warrant was addressed to 'Any person authorized by law to execute warrants within the State of Colorado.' While in the warrant Henderson was named as the affiant, the warrant did not contain the name of the officer who would execute it. The defendants call attention to the fact that under the provisions of 1965 Perm.Supp., C.R.S.1963, 48--5--11(3), the name of the officer must be designated. However, after defendants filed their brief here, we declared that statute unconstitutional in People v. Leahy, Colo., 484 P.2d 778, announced on December 28, 1970. It is only necessary for the warrant to comply with the provisions of Crim.P. 41. We hold that the direction contained in this warrant complied with that rule.

V

When asked about the capacity under which he acted in making the initial visit to the Henry cabin, Henderson stated that he was acting...