People v. Lujan, 24879

• Decision Date: 26 October 1970
• Docket Number: No. 24879,24879
• Citation: 475 P.2d 700,173 Colo. 77
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard A. LUJAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 700

475 P.2d 700

173 Colo. 77

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard A. LUJAN, Defendant-Appellant.

No. 24879.

Supreme Court of Colorado, En Banc.

Oct. 26, 1970.

Harold J. Heafer, Chief Deputy Dist. Atty., Golden, for plaintiff-appellee.

Rollie Rogers, State Public Defender, Denver, Harold A. Haddon, Deputy State Public Defender, Golden, for defendant-appellant.

PRINGLE, Justice.

This interlocutory appeal is brought pursuant to C.A.R. 4.1. Defendant-appellant, hereinafter referred to as defendant, seeks our review of an adverse ruling in the trial court on his motion to suppress evidence he alleges was illegally obtained.

On June 7, 1970, agents of the Lakewood Department of Public Safety obtained a warrant to search the premises for narcotics at a chicken coop converted into housing quarters. They arrived at night, and due to circumstances not related to this appeal, were still there in the early morning hours. As a result of this search, the officers found some drugs and some paraphernalia connected with the manufacture and sale of drugs. While the officers were conducting their search, and at approximately 2:00 a.m., a car in which defendant was riding drove up to within a car's length of the house and turned off its lights. Before defendant had gotten out of the car, agents Johnson and Grubb had come out of the house and approached the car. They ordered defendant out of the car, made a cursory search of his person for weapons and contraband, and on finding neither, led him and his female companions into the house. While in the house, one of the agents noticed a needle showing above defendant's breast pocket. The needle was seized, and upon analysis, its contents proved to be a dangerous drug.

Defendant raises four contentions of error, namely: (1) that the arrest took place prior to the discovery of the contraband, (2) that there was no probable cause for this arrest, (3) the arrest and search cannot be justified under either the 'plain view' rule or the 'stop and frisk' rule, and (4) the arrest, search and seizure were not incident to the search warrant used in this case. We agree with contention number 1, but since we disagree with contention number 2, we affirm the ruling. Under this posture of the case, there is no purpose in discussing points 3 and 4.

Defendant's first contention of error is that the contraband needle was discovered after he was placed under arrest. We agree the arrest took place prior to the discovery of the needle in question, but disagree with the second contention that the agents had no probable cause for this arrest. In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, the United States Supreme Court stated that,

"In dealing with probable cause, * * * as the very name implies we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, Supra, (338 U.S. 160) at 175 (69 S.Ct. 1302, 93 L.Ed. 1879). Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonable trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed....