People v. Hively, 25001

• Decision Date: 08 February 1971
• Docket Number: No. 25001,25001
• Citation: 480 P.2d 558,173 Colo. 485
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Craig C. HIVELY, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 558

480 P.2d 558

173 Colo. 485

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Craig C. HIVELY, Defendant-Appellant.

No. 25001.

Supreme Court of Colorado, En Banc.

Feb. 8, 1971.

James D. McKevitt, Dist. Atty., Gregory A. Mueller, Asst. Dist. Atty., Jarvis W. Seccombe, Chief Deputy Dist. Atty., Thomas P. Casey, Deputy Dist. Atty., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, Bryan Morgan, Deputy State Public Defender, Denver, for defendant-appellant.

LEE, Justice.

This is an interlocutory appeal from an order of the Denver District Court denying defendant-appellant's motions to suppress evidence seized by officers of the narcotics bureau of the Denver Police Department. Appellant was charged in two separate informations with possession of dangerous drugs for sale and with possession of dangerous drugs, both cases arising out of the same transaction. The motions to suppress were consolidated for argument.

The facts concerning the seizure were stipulated. At 12:10 a.m. on July 28, 1970, the Denver narcotics bureau received word by telephone from the sheriff's office of Redwood City, California, that a package containing dangerous drugs--LSD--was being shipped by air freight from San Francisco to Denver, addressed to one Craig C. Hively of Boulder, Colorado. The package was scheduled to arrive at 12:47 a.m. at Stapleton Airport.

As told to the Denver authorities by the California sheriff, the United Air Lines freight agent in San Francisco had received the package for shipment and because of the nature of the package, fearing it might contain a bomb, the freight agent and his foreman, on their own initiative, opened the package and observed five plastic bags containing purple-colored tablets (LSD). The sheriff was then notified. He removed one bag of tablets and marked the four remaining bags and the package was then placed in shipment for Denver.

In response to this information, Denver Detectives Martinelli and Martinez set up surveillance at the United Air Lines freight receiving office at Stapleton Airport. They were relieved at 9 a.m. by Detectives Frazinni and Ives who continued the surveillance until approximately 11:40 a.m. of the same day, when appellant, Craig Hively, appeared to claim the package. He signed the receipt and was given the package. The officers then placed him under arrest and the package was then seized.

It was additionally stipulated in the trial court that no search or arrest warrants had been issued by the California authorities. Likewise, there were no search or arrest warrants issued in Colorado.

Appellant's contention in the trial court and here is that the search and seizure of the package containing the drugs violated his rights under the Fourth Amendment to the United States Constitution and under section 7 of article II of the Colorado constitution. We do not agree and therefore affirm the ruling of the trial court denying the motions to suppress.

Appellant's argument in essence is that the initial search in California was without a warrant and was therefore unlawful. He contends that the information discovered by this search, which afforded the basis for the arrest and search in Denver, was 'tainted' and could not therefore serve as the foundation for probable cause to make the arrest and seizure in Denver.

At the outset we note that appellant concedes that United Air Lines freight personnel had the right and...