People v. Nelson

• Decision Date: 08 September 1970
• Docket Number: No. 24749,24749
• Citation: 172 Colo. 456,474 P.2d 158
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey NELSON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 158

474 P.2d 158

172 Colo. 456

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey NELSON, Defendant-Appellant.

No. 24749.

Supreme Court of Colorado, En Banc.

Sept. 8, 1970.

Martin G. Dumont, Dist. Atty., James H. Moore, Deputy Dist. Atty., Aspen, for plaintiff-appellee.

Joseph E. Edwards, Jr., Aspen, for defendant-appellant.

KELLEY, Justice.

The defendant is charged with possession of a narcotic drug, namely, Cannabis, in violation of the laws of Colorado. C.R.S.1963, 48--5--2.

This is an interlocutory appeal under C.A.R. 4.1 from a decision of the District Court in and for Pitkin County, denying one part of a three-part motion to suppress evidence. The trial court granted the motion to suppress (1) evidence seized from defendant's Volkswagen by virtue of a search warrant issued without the affidavit required by (i) Crim.P. 41(c), (ii) 1965 Perm.Supp., C.R.S.1963, 48--5--11(3), and (iii) Colo.Const. Art. II, Sec. 7; and (2) evidence seized in defendant's room at the Dorm by virtue of a consent to search, which the court found to have been obtained 'at the interrogation, which took place at approximately 12:00 to 12:30 A.M., January 26, 1970'; the court finding that the consent to search was the product of a confrontation of the defendant with the evidence previously illegally seized under the void search warrant and, further, a product of a late night interrogation, and that said signatures and statements were not voluntarily made.

The evidence which the court refused to suppress was, as it appears in the court's order,

'* * * the brass pipe and the contents of said pipe recovered from the person of the defendant upon a search incident to the original arrest * * *.'

The court held that the defendant's arrest was Lawful. The sole question for our determination is whether the arrest was in fact Lawful under the circumstances of this case when tested by the state and federal constitutional provisions relating to search and seizure. Our review of the law and examination of the facts lead us to the conclusion that the trial court erred. We must reverse.

We recognize the proposition set forth by the United States Supreme Court in 1891, that

'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.' Union Pac. R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States Supreme Court reminds us that '* * * courts still retain their traditional responsibility to guard against police conduct which trenches upon personal security without the objective evidentiary justification which the Constitution requires. * * *'

The Fourth Amendment to the United States Constitution and Article II, Section 7 of the Constitution of Colorado protect 'the people,' not from All searches and seizures, but from those which are 'unreasonable.' This is true whether the Seizure is of the person or his property.

It is a fundamental truth that a valid arrest must be based upon probable cause. In Gallegos v. People, 157 Colo. 173, 401 P.2d 613, Mr. Justice Pringle advised:

"Probable cause' was defined as early as 1897 in Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, as a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a cautious man to believe that an offense has been or is being committed by the person arrested. See also, Gonzales v. People, supra, (156 Colo. 252, 398 P.2d 236). Vague suspicion does not rise to the dignity of probable cause. * * *'

As noted in People v. Gurule, Colo., 471 P.2d 413, each case must be determined on its own particular facts. It is imperative that the relevant facts be judged against an objective standard. Such a standard is stated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, in these words:

'* * * It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U.S. 98, 101, (80 S.Ct. 168, 4 L.Ed.2d 134) though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause--evidence which would 'warrant a man of reasonable caution in the belief' that a felony has been committed, Carroll v. United States, 267 U.S. 132, 162, (45 S.Ct. 280, 69 L.Ed. 543)--must be measured by the facts of the particular case. * * *'

The Colorado statute authorizes an officer to make an arrest without a warrant 'when a criminal offense has, in fact, been committed, and he has reasonable grounds for believing that the person to be arrested has committed it.' C.R.S.1963, 39--2--20. This statutory provision is consonant with the case law of the United States Supreme Court and this court.

Turning now to the factual situation to which the principles outlined above must be applied, the record discloses that about midnight, January 25, 1970, Parker, a merchant patrolman, while patrolling in his pickup truck, passed two men in a blue Volkswagen driving in the opposite direction. Long poles were protruding from the car which Parker thought were strips of molding. Thinking the strips might have been stolen from a construction company customer, Parker turned his truck around and followed the Volkswagen. When the car stopped in front of 'The Dorm,' a rooming house, Parker discovered that the strips were bamboo poles of the kind used to mark ski slopes.

Nevertheless, Parker, still suspicious, notified the Aspen Police Department. Officer Wall responded. When he arrived the defendant was driving away to park the vehicle and the other occupant of the car, Mayhood, was carrying the poles up the stairs of the boarding house. Wall approached Mayhood and asked if the poles belonged to him. Mayhood stated that the poles belonged to the defendant; that they had obtained them at Snowmass.

The officer further testified:

'* * * And I asked him, 'Where at Snowmass?' He couldn't answer that question. He told me that, 'I guess we made a mistake,' and could...