People v. Martineau, 25745
| Decision Date | 10 June 1974 |
| Docket Number | No. 25745,25745 |
| Citation | 185 Colo. 194,523 P.2d 126 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth R. MARTINEAU, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, for defendant-appellant.
Appellant, Kenneth R. Martineau, was convicted by a jury in the district court of El Paso County of burglary and theft. We find no reversible error and therefore affirm the convictions.
Appellant's sole ground for reversal is the alleged error of the trial court in failing to grant his motion to suppress incriminating evidence, without which proof of his guilt would have been fatally deficient.
A burglary and theft of the D & S Saddle Shop at 16 East Cucharras in Colorado Springs occurred during the early morning of April 7, 1972. While on routine patrol of the downtown area, at about 2:52 a.m., Officer Wayne Banks observed a plateglass store window broken out of the D & S Saddle Shop. This store had been observed to be intact by another patrolman, James Dytri, approximately forty minutes earlier that morning. Officer Dytri had also noticed appellant at about 2:47 a.m., walking on the north side of the 100 block of Cucharras Street, about one block east of the saddle shop. At that time, Dytri was unaware of the break-in. After discovery of the break-in, a description of appellant was broadcast over the police radio. Dytri considered appellant might be a suspect in connection with the break-in.
The owner of the saddle shop was notified and he arrived at the store and made a cursory examination of the premises. His quick 'once over' did not reveal that anything was missing. The broken window was then boarded up.
Appellant was later located at the Donut Whole, a nearby coffee shop. There he was contacted by Officer Dytri, who asked for his identification. Appellant produced a Social Security card and the inquiry was then terminated.
Later, at approximately 3:55 a.m., a pickup was radioed for a person walking southbound on Nevada Street. Officer Dytri's partner, Officer Huskey, observed a man walking south toward the courthouse. Huskey shined his spotlight on the man, whose identity was then unknown. The man ran across the courthouse grounds and was found hiding prone on the foot area of the top row of bandstand bleachers. He was then identified as Kenneth R. Martineau.
Dytri frisked appellant for weapons. He felt a bulge in appellant's left-front shirt pocket and removed two clear plastic cases which contained gold and silver belt buckles. These were identified as the property of the owner of the D & S Saddle Shop, and were shown to have been taken from a showcase in the store.
At trial, the stolen merchandise was introduced into evidence, without objection, other than a reservation by defense counsel that he was not waiving his right to argue a motion concerning the chain of this evidence. No such motion was made or argued. Counsel did, however, at the conclusion of the People's evidence, move to suppress the belt buckles from the jury's consideration, contending the seizure was the product of an unlawful arrest and the evidence was therefore inadmissible.
The trial court disregarded the district attorney's protest that the motion to suppress was untimely. The court ruled on the merits of the motion, holding that the seizure was incidental to a valid arrest and that the evidence was therefore properly admissible.
Appellant here contends there was no probable cause for his arrest and that the seizure of the evidence was therefore unlawful. Although the trial court held the seizure to be incident to a valid arrest, as we view the undisputed evidence in this connection, the discovery of the stolen merchandise was the product of a lawful inquiry,...
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