People v. Henry

• Decision Date: 04 August 1981
• Docket Number: No. 81SA160,81SA160
• Citation: People v. Henry, 631 P.2d 1122 (Colo. 1981)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Ross HENRY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1122

631 P.2d 1122

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v.Ross HENRY, Defendant-Appellee.

No. 81SA160.

Supreme Court of Colorado, En Banc.

Aug. 4, 1981.

Warwick Downing, Dist. Atty., Cortez, for plaintiff-appellant.

J. Gregory Walta, State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, Denver, for defendant-appellee.

QUINN, Justice.

Pursuant to C.A.R. 4.1the People appeal a suppression ruling of the district court.Having ruled that the police lacked probable cause to arrest the defendant, the court suppressed as the fruits of his illegal arrest the results of scientific tests conducted on him after his arrest and his post-arrest statements to the police.The court also suppressed various items of evidence seized from an automobile in which the defendant was riding as a passenger on the ground that the illegal arrest of the vehicle's owner invalidated the owner's subsequent consent to search.We conclude that the court misapprehended the legal principles pertinent to a proper resolution of the search and seizure issues and we reverse.

I.

The defendant, Ross Henry, is charged in two separate criminal actions pending in the district court of Montezuma County.In the one case (Criminal ActionNo. 81CR4)he is charged with the following offenses based on an episode that occurred during the late evening and early morning hours of December 14 and 15, 1980, in Cortez, Colorado: ¹ one count of assault in the third degree ² against Kern Washington, Jr.; one count of assault in the first degree ³ against Samuel Adam McIntosh; and separate counts of aggravated robbery ⁴ and assault in the first degree ⁵ against Jackie Keams.⁶In another case(Criminal ActionNo. 81CR6)the defendant is charged with burglary of the building ⁷ of Tierra Equipment, Inc., in Cortez on December 11, 1980, and felony theft ⁸ of several items of property during the burglary including a .357 Rugar Magnum revolver and holster, two yellow flashlights and a Polaroid camera.⁹In both casesthe defendant filed motions to suppress which were consolidated for hearing before the district court.The evidence elicited at the suppression hearing furnishes the factual predicate for the issues raised on this appeal.

At approximately 11:50 p. m. on December 14, 1980, Officer Nowlin of the Cortez Police Department heard a gunshot originating from an alley behind the Hotel Cortez and immediately went there to investigate.At approximately the same time Sergeant Marston, who was patrolling the town in a police vehicle, received a report of an assault at the hotel and he also responded to the scene.When the sergeant entered the hotel he observed Officer Nowlin already there talking to a man who was bleeding from the face and who appeared to be the victim of the assault.¹⁰Officer Nowlin told Sergeant Marston that Ross Henry was the assailant and that Henry left in a dark Pontiac automobile with two other men, one of whom was David Schonberger.Marston knew the defendant and Schonberger by sight.

At approximately the same time another officer, Detective Shethar, was informed at his home of an assault and shooting at the hotel.Upon Shethar's arrival at the hotel, Sergeant Marston repeated to him the information received from Officer Nowlin.Marston drove to the local hospital to interview a gunshot victim, Samuel McIntosh, who stated that "he had been shot down by the hotel."

Several police officers engaged in a lookout for the Pontiac automobile and maintained radio contact with each other.At about 1:00 a. m. on December 15, Detective Shethar, who knew the defendant and Schonberger, received a radio report that the Pontiac had been seen heading east on Main Street in Cortez.Shethar posted his vehicle on Main Street and moments later spotted the Pontiac with the three suspects in it, the defendant occupying the right rear passenger seat.He advised other officers of the vehicle's location, followed it and, with the assistance of Sergeant Marston and others, blocked it off in a parking lot.The defendant was placed under arrest along with Schonberger, who also was a passenger in the vehicle, and the driver, Dennis Vallejos.All the suspects were advised of their Miranda rights ¹¹ at this time.

After handcuffing the suspects and placing them in a police vehicle, Sergeant Marston looked inside the Pontiac.With the aid of a flashlight he saw a .357 Magnum revolver on the floor of the right rear passenger compartment and seized the weapon.It was determined that the driver, Dennis Vallejos, was the owner of the Pontiac.He executed a written consent to search the vehicle at the scene of the arrest.¹²Various items of evidence were recovered including a bottle of beer, a plastic bottle of 7-Up, a towel and washcloth, and a shirt, pants and gloves.

After the search of the vehicle the three suspects were transported to the Montezuma County Jail.There a search of the defendant's clothing produced thirteen live rounds of .357 Magnum ammunition.At approximately 2:00 a. m. on December 15 the police sought to administer a paraffin test on the defendant's hands.Initially the defendant refused to cooperate, stating that he had been shooting a gun all week, ¹³ but later agreed to the test.About 10:00 a. m. on that day an investigator for the district attorney's office advised the defendant of his Miranda rights and the defendant acknowledged that he understood them and agreed to make a statement.He admitted being in a fight at the Hotel Cortez the evening of December 14 and firing a weapon sometime that day.¹⁴

During the afternoon of December 15Dennis Vallejos executed a second consent to search the Pontiac automobile and additional items of evidence (a small piece of wood, a box, a bar of soap and a tube of toothpaste) were recovered from the automobile.The police learned from Vallejos that he had picked up the defendant on the evening of December 14 at the home of Kathy Cross in Cortez.Officers visited her house at 2:40 p. m. on December 15.Upon entry they observed the holster, which was stolen in the December 11 burglary of Tierra Equipment, Inc., lying in open view on a couch.A Polaroid camera from the same burglary was lying on the floor directly inside the front door.Ms. Cross told the officers that the defendant lived there with her prior to his arrest and she executed a written consent to search the home.In addition to the holster and the Polaroid camera, the officers recovered a flashlight and glove belonging to Tierra Equipment, Inc., and several food items taken in another burglary.¹⁵

The court concluded that the police lacked probable cause to arrest the defendant and suppressed the results of the paraffin test as the fruit of his illegal arrest.The court also ruled that, although "the defendant appeared to understand his rights and waived them," his custodial statements to the police likewise were the product of his illegal arrest.The .357 Magnum revolver was suppressed for the reason that it was seized without a warrant in the absence of exigent circumstances.The court also suppressed the items of evidence obtained from the two consent searches of the Pontiac automobile on the ground that the illegal arrest of the vehicle's owner, Dennis Vallejos, without probable cause, invalidated his consent and any ensuing search.The court denied the motion to suppress the evidence taken from the search of Ms. Cross' home, ruling that her consent was valid.That part of the court's ruling which deals with the search of the Cross home is not before us at this time and we do not address it.

II.

We first consider the trial court's determination that there was a lack of probable cause to arrest the defendant, thereby resulting in the suppression of the paraffin test and the defendant's custodial statements.The gist of the trial court's ruling is that the prosecution failed to establish the trustworthiness of the information related by Officer Nowlin to Sergeant Marston and, therefore, the application of the fellow officer rule could not be considered in the judicial assessment of probable cause.We conclude that the trial court erred in its resolution of the probable cause issue.

The constitutional requirement of probable cause may be established by hearsay information.E. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964);Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697(1960);Lucero v. People, 165 Colo. 315, 438 P.2d 693(1968).Here the suppression evidence was undisputed that Sergeant Marston heard a report of an assault at the hotel and arrived there directly.Also, it was undisputed that Marston saw Officer Nowlin talking to a man who was bleeding from the face and appeared to be the victim of the assault and that Nowlin immediately told Marston of Ross Henry's identity as the assailant and his flight from the scene with David Schonberger and a third person in a dark Pontiac automobile.This undisputed evidence virtually compels the inference that the victim initially told Nowlin the very information which Nowlin conveyed to Marston.

In the context of probable cause, the type of showing necessary to establish the trustworthiness of information supporting an arrest will vary with the source of the information.Where the information originates from an anonymous informer, the informer's tip must allege sufficient facts to establish the basis for his knowledge of criminal activity and also must allege adequate circumstances to justify the officer's belief in the informer's credibility or the reliability of his information.E. g., United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723(1971);Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969);Aguilar v. Texas, supra;People v. Montoya, 189 Colo. 106, 538 P.2d 1332(1975);People v. Peschong181 Colo. 29, 506 P.2d 1232(1973).Ordinarily, courts are...