People v. Mojo, 24876

• Decision Date: 01 February 1971
• Docket Number: No. 24876,24876
• Citation: 173 Colo. 422,480 P.2d 571
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Francis A. MOJO, Jr., John Storr, David D. Tooley and Ellsworth Nichols, Jr., Defendants-Appellants.
• Court: Colorado Supreme Court

Page 571

480 P.2d 571

173 Colo. 422

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Francis A. MOJO, Jr., John Storr, David D. Tooley and Ellsworth Nichols, Jr., Defendants-Appellants.

No. 24876.

Supreme Court of Colorado, En Banc.

Feb. 1, 1971.

Stanley F. Johnson, Dist. Atty., Robert M. Jenkins, Chief Deputy Dist. Atty., Boulder, for plaintiff-appellee.

Blewitt, Bisbee & Geil, Boulder, for defendants-appellants Francis A. Mojo, Jr. and John Storr.

Williams, Trine & Greenstein, William D. Neighbors, Boulder, for defendant-appellant Ellsworth Nichols, Jr.

LEE, Justice.

LEE, Justice. order denying three motions filed on behalf of defendants Nichols, Storr and Mojo to suppress evidence seized at the time of defendants' arrest. Appellants will be referred to as defendants or by name.

Defendants were charged in the District Court of Boulder County, along with Robert M. Duitsch and Roland J. Duitsch (who are not parties to this appeal), with two counts: possession of narcotic drugs for sale, C.R.S. 1963, 48--5--20, and conspiracy to commit the crime of selling narcotic drugs, C.R.S. 1963, 40--7--35.

The events leading to the arrest of defendants and the seizure of the marijuana took place during the late hours of November 13 and the early morning of November 14, 1969. Undercover officers, Investigator Taketa of the Adams County Sheriff's Department, working in donjunction with Officer Newman of the Boulder County Police Department, contacted Robert Duitsch and defendant, Storr to negotiate the purchase of a large quantity of marijuana. The officers made a deal to purchase 100 kilos (220 pounds) of marijuana at a price of $5,600. They were instructed to call back at 11:45 that evening to receive instructions about the pickup point. At the appointed hour the officers made the call and were instructed that the transaction would take place at the Base Mar shopping center at approximately midnight. Officers Taketa and Newman and several other cover police officers went to the rendezvous at the appointed time. The cover officers were stationed in unmarked vehicles at various points throughout the shopping center parking lot for surveillance of the transaction. The only businesses upon at that hour were a hamburger stand and a pancake house located at one end of the shopping center. There was very little vehicular traffic through the shopping center lot.

The first person to approach Officers Taketa and Newman was Duitsch. Shortly thereafter a jeep arrived with defendants Storr and Mojo. Mojo was introduced as the contact man for the marijuana suppliers. While conversation was conducted by these five persons, surveilling officers noticed a white Ford Econoline van enter the parking lot. The van was closely followed by a Ford Mustang. The van and Mustang stopped in the center of the parking lot. One of the surveilling officers noticed the taillights or brake lights of the jeep flash. At this point the van began moving again and was driven by and within about twenty feet of the officers transacting the drug sale. It then exited the parking lot. As the van was traveling toward the group transacting the sale, defendant Mojo motioned toward the van and stated, 'The van is not going to stop, but that is where the marijuana is.' The Mustang proceeded directly to the group and stopped. There were no other vehicles moving within 100 yards of the undercover officers and defendants at that time.

Negotiations between Officer Taketa and Mojo came to a standoff. Taketa wanted to see the marijuana before he paid the money; and Mojo wanted the money before he turned over the marijuana. Taketa and Mojo then drove over to a parked camper truck which was occupied by two of the surveilling officers, Ruzicka and Diezi. There, Ruzicka gave Taketa a 'flash' roll of $1,000 to show Mojo. Taketa advised Ruzicka what Mojo had said concerning the van containing marijuana. Mojo insisted on seeing the rest of the money and thereupon the deal was called off.

The testimony indicated that thereafter a white Ford Econoline van entered the parking lot. Officers Ruzicka and Diezi stopped the van at a point in front of the pancake house. The jeep containing defendants Mojo and Storr followed directly behind the van and was stopped. The Ford Mustang escaped the area. At his point all the unmarked and several marked police cars converged on the area. The occupants of the van, defendants Nichols and Tooley, were then arrested, as were defendants Mojo and Storr.

The contents of the van could not be seen from the outside. Police officers opened the doors to inspect the interior and found a large number of brown paper bags. They noticed a strong odor of marijuana and upon opening one of the bags found it to contain the suspected marijuana.

The defendants sought to suppress the bags of marijuana from evidence. The trial court denied defendants' motion. We affirm this ruling.

The motions to suppress were substantially identical and alleged as grounds that the evidence was obtained without a valid search warrant and pursuant to an illegal arrest in...