People v. Montoya, 26232
| Decision Date | 08 December 1975 |
| Docket Number | No. 26232,26232 |
| Citation | 190 Colo. 11,543 P.2d 514 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Joseph MONTOYA, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., John Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Deputy Public Defender, Natalie S. Ellwood, Denver, for defendant-appellant.
The defendant was convicted of second-degree burglary (Count I) and theft (Count II) and was then tried and convicted by the same jury of having been previously convicted of possession of burglary tools (Count III) and conspiracy to commit burglary (Count IV) for the purpose of enhancing sentences under the habitual criminal statute.
The defendant was sentenced to a term in the penitentiary of not less than 40 years nor more than 50 years on the first count and to a term in the penitentiary of not less than 10 years nor more than 30 years on the second count, the sentences to be served concurrently.
The defendant alleges error in: (1) the admission in evidence of statements made by the defendant while in police custody following an allegedly illegal arrest, (2) the refusal to suppress photographs of the defendant, (3) permitting in-court identification, (4) compelling the defendant to submit to finger-printing, and (5) allowing the convictions on the enhancement of punishment counts to stand. Our review discloses no reversible error. We affirm.
The defendant was charged with burglarizing the home of Hilda G. Latimer and stealing a television set. Ms. Bach, a neighbor, observed two men, one of whom she identified as the defendant, leave the Latimer home and load a television set into a 1960--1962 Pontiac. This occurred during the daylight hours. The witness first observed the two burglars as they were leaving the Latimer home and followed them out to the street in order to obtain the license number of the vehicle. As she approached to within a few feet of the defendant, the defendant went to the rear of the automobile and bent the license plate in order to prevent the witness from seeing the complete tag. Ms. Bach, however, was able to read the last four digits of the license number and record them. She then called the police who subsequently broadcasted descriptions of the vehicle and the two men.
Officer Jeffries heard the broadcast. Later that evening he participated with other officers in the stop of an automobile which met the broadcast description of the automobile and which had a bent license plate with the last four digits furnished by the witness. The driver, Dorothy Olguin, had no driver's license. She was placed under arrest.
The officer obtained a notebook from her in which the name Tommy Montoya was written several times. Officer Jeffries learned from the identification records of the Denver Police Department that there were 'pick ups' outstanding on Montoya--one from Detective Lee for suspicion of a prior burglary and one from the Probation Department.
Officer Jeffries and his partner then proceeded to Dorothy Olguin's apartment. The officers knocked on the door, and after a delay of 20 to 25 seconds, it was opened by the defendant. Jeffries then heard the toilet reservoir refilling in the bathroom. Based on his experience, this caused him to believe that '. . . possibly some narcotics or drugs were flushed.' Officer Jeffries then observed fresh needle injection marks on the defendant's arms. The defendant was placed under arrest for investigation of possession of illegal drugs and investigation of burglary. The officer promptly advised the defendant orally of his Miranda rights. The defendant stated that he understood those rights. On the way to the police station, Officer Jeffries mentioned that there were witnesses to the burglary. The defendant volunteered the question, 'Did She get a good look at the Two guys?' (Emphasis added.)
The following day at police headquarters, the defendant was again advised of his rights by a written from upon which Montoya indicated by his signature that he understood the nature of those rights. He also expressly waived his rights in writing.
Subsequently, Detective Lee advised the defendant of his rights before the defendant voluntarily waived those rights and made further incriminating statements relating to the Latimer burglary. Detective Lee was the detective who had shown Ms. Bach eight photographs of possible suspects on the day following the burglary. At that time she identified the photograph of the defendant as the person involved in the burglary
The question directed by the defendant to Officer Jeffries on the evening of the arrest and the statement made to Detective Lee were admitted into evidence after the trial judge found that they were voluntarily given. The defendant challenges the admissibility of these statements on the premise that his arrest by Officer Jeffries was illegal because it was not based on probable cause, and therefore, all statements made subsequent to his arrest were tainted and must be excluded.
In the case of People v. Gurule, 175 Colo. 512, 488 P.2d 889 (1971), which involved a somewhat similar factual situation, this court held:
'. . . that a person suspected of being wanted for violation of a law, by reason of a recent police bulletin so indicating, may be reasonably detained for questioning concerning his identification and for determining whether such person is still wanted at the time of the detention.'
People v. Gurule relied on Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), wherein the matter of temporary detention for questioning was discussed and where we held:
'In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonably when considered in light of the purpose.'
Under the circumstances of this case, the officers had probable cause to arrest. In the first instance they had a reasonable suspicion that the defendant had committed the Latimer burglary because there was evidence linking him to the car which was used in the burglary. It was, therefore, reasonable for the officers to go to Ms. Olguin's apartment in the course of their investigation, and when the officers saw the needle marks, combined with the preexisting suspicion resulting from the noise of the toilet, they had probable cause to arrest the defendant for possession of illegal drugs and investigation for burglary. In addition, defendant's statements were found by the trial court to have been made voluntarily, after both oral and written Miranda warnings, and waivers of his right to remain silent. Consequently, the trial court properly admitted into evidence the defendant's custodial statements.
The second assignment of error relates to the admission in evidence of three photographs. The defendant relies on People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973), in which we said:
The present case is distinguishable from Bugarin in several respects. First, the photographs were not 'typical' police 'mug shots.' Not...
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State v. Cole, No. W2002-01254-CCA-R3-DD (Tenn. Crim. 11/24/2003)
...Cir. 1982); United States ex rel O'Halloran v. Rundle, 384 F.2d 997 (3rd Cir. 1967), cert. denied, 393 U.S. 860 (1968); People v. Montoya, 543 P.2d 514, 518 (Colo. 1975); State v. Stuard, 452 P.2d 98, 99 (Ariz. 1969); State v. Anderson, 528 P.2d 1003, 1005 (Wash. Ct. App. The defendant cont......
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People v. Forgette
...because identifying numbers had been removed and the pictures were full-face photos, in street clothes); see also People v. Montoya , 190 Colo. 11, 15, 543 P.2d 514, 517 (1975) (holding that the introduction of photographs wasn't prejudicial where the photos were simple, without any police ......
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People v. Muniz, s. 82SA297
...on his 1964 conviction of conspiracy to commit burglary. The judgments and sentences were affirmed by this court in People v. Montoya, 190 Colo. 11, 543 P.2d 514 (1975). In 1980 Montoya filed the Crim.P. 35 motion involved in this appeal. The district court initially dismissed the motion wi......
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People v. Pickett
...and the pictures were simply full face photos of men in street clothes. They were similar to those photographs we approved in People v. Montoya, Colo., 543 P.2d 514. The photographs were not introduced into evidence on direct examination of Janet Little, but only after extensive defense cro......