People v. Velasquez, 80SA517

• Citation: 641 P.2d 943
• Decision Date: 16 February 1982
• Docket Number: No. 80SA517,80SA517
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard VELASQUEZ, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 943

641 P.2d 943

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

No. 80SA517.

Supreme Court of Colorado, En Banc.

Feb. 16, 1982.

Rehearing Denied March 15, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Jeffrey A. Springer, Denver, for defendant-appellant.

Richard Velasquez, pro se.

QUINN, Justice.

The defendant, Richard Velasquez, was convicted by a jury of four counts charging him with dispensing a dangerous drug, cannabis; ¹ possession of narcotic drugs, namely morphine and codeine; ² possession of more than one ounce of cannabis; ³ and carrying a concealed weapon. ⁴ His challenges on this appeal are several and include the claimed unconstitutionality of consensual electronic surveillance under Article II, Section 7, of the Colorado Constitution, the asserted illegality of his arrest and search incident thereto as well as a subsequent search of his automobile, the alleged violation of his statutory and constitutional rights to speedy trial, and a claim that he was denied effective assistance of counsel. ⁵ We affirm the judgment.

I.

The charges against the defendant arose from a drug transaction which occurred in Montrose County, Colorado, on December 22, 1978. Earlier that month, while working with the Colorado Bureau of Investigation as an informant, James Walsh met the defendant and purchased marijuana from him on three or four occasions prior to the events here at issue. On December 21 the defendant agreed to sell Walsh one pound of "sesamian marijuana" for $1300. The sale was scheduled for the next day at Walsh's room in the Will Rogers Motel in Montrose County. Walsh contacted Detective Sellers of the Montrose Police Department and received $1300 in recorded bills to make the purchase. During the morning hours of December 22 Detective Sellers and Agent Konkel of the Colorado Bureau of Investigation (CBI) placed an audio transmitter, with Walsh's consent, behind the headboard of the bed in his room. After Sellers and Konkel had stationed themselves in a car outside the motel, they saw the defendant arrive at about 1:00 p. m. in a Chevrolet automobile which he parked in the motel parking lot. The defendant then entered Walsh's room.

The officers monitored the ensuing conversation between the defendant and Walsh. When the defendant arrived he told Walsh that he had no "sesamian pot" but he had brought two pounds of Colombian marijuana with him and, if Walsh purchased this marijuana, the defendant then would have enough money to purchase the "sesamian marijuana" for a later sale to Walsh. Walsh agreed to the purchase of the Colombian marijuana for $750. The officers saw the defendant leave the motel room and go to his car, where he removed a box and brown bag from the trunk, and then return to the room. Once back inside the room, the defendant weighed two bags of marijuana and Walsh paid him $750. After Walsh gave a prearranged signal by stating "this would make a nice Christmas present", the officers entered the room and arrested the defendant.

The officers recovered a .38 caliber loaded revolver from the defendant and a large sum of money, including the recorded money paid by Walsh. Seized from a coffee table in the room were a scale and a pound bag of marijuana. Another pound of marijuana was located in a paper sack on the floor. Immediately after the defendant's arrest the officers arranged for the towing of his automobile from the motel parking lot to a garage where the automobile was sealed. Later a warrant was issued for the search of the vehicle, based upon an affidavit of Detective Sellers reciting what Sellers and Agent Konkel heard and saw during the electronic surveillance and their arrest of the defendant and recovery of contraband in the motel room. Upon execution of the warrant a sawed-off shotgun, some small bags of marijuana and a trace of a black substance later determined to contain morphine and codeine were recovered from the defendant's vehicle.

A complaint was filed against the defendant in county court on January 3, 1979, and after a preliminary hearing the matter was bound over to the district court. The defendant initially appeared in the district court with a deputy public defender on March 8, 1979 for arraignment. Defense counsel requested 30 days to file motions directed to the information prior to the entry of a plea. The court granted this motion but reserved September 17, 1979, for trial of the case. The trial date was selected after defense counsel acknowledged on the record that the six month speedy trial period would not begin to run until the arraignment and after he had rejected an earlier date due to a prearranged vacation.

Several days after the March 8 appearance the court ordered $1,920 in unmarked money previously seized from the defendant returned to him and granted him 30 days to retain private counsel. During the next three months the court granted several requests by the defendant for additional time to retain private counsel and to file motions. Ultimately the defendant retained a private attorney, who formally entered his appearance on July 23, 1979. This attorney filed various motions, including a motion to suppress various articles seized from the defendant, the motel room and the defendant's vehicle.

A hearing was held on the motion to suppress on August 27, 1979. The court denied the motion to suppress, ruling that Article II, Section 7 of the Colorado Constitution did not require a warrant to electronically monitor a conversation when one of the participants had consented to the monitoring, that the officers had probable cause and legal authority to arrest the defendant and search his person incident to the arrest, that the seizure of the defendant's vehicle was proper, and that the affidavit in support of the warrant to search the vehicle established probable cause. The case was continued for trial commencing on September 17, 1979.

Although neither the defendant nor his attorneys ever sought to enter a not guilty plea subsequent to March 8, 1979, the defendant appeared with private counsel on the trial date and moved for dismissal of the charges on the basis that his right to a speedy trial had been violated. The court denied the motion to dismiss and, upon the defendant's refusal to enter a plea to the charges, entered a not guilty plea on his behalf pursuant to Crim.P. 11(d) and the trial commenced.

At trial, no recording or transcript of the monitored conversation between the defendant and Walsh was offered into evidence but Detective Sellers and Agent Konkel testified to the substance of what they had overheard while monitoring the conversation. The court admitted into evidence the marijuana, drug paraphernalia, recorded money and revolver seized during the course of the defendant's arrest as well as the other drugs and shotgun recovered from the defendant's vehicle. The jury found the defendant guilty of the felonies of dispensing a dangerous drug and possession of a narcotic drug, and guilty of the misdemeanors of possession and use of more than one ounce of cannabis and carrying a concealed weapon. Subsequently the defendant was sentenced on the felony convictions to concurrent terms of six to ten years and to concurrent terms of one year on the misdemeanor convictions. This appeal followed.

II.

The defendant argues that the state constitutional prohibition against unreasonable searches and seizures, Colo.Const. Art. II, Sec. 7, ⁶ should be construed to require a warrant for the electronic transmission and monitoring of a defendant's conversations with another, in spite of the other party's consent to the electronic surveillance. The defendant concedes that under United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), no warrant is required for consensual electronic surveillance under federal constitutional standards. He urges us, however, not to follow White because its reasoning conflicts with realistic expectations of privacy. ⁷ We are not persuaded by his argument.

In White the United States Supreme Court reasoned that the use by government agents of electronic equipment to transmit and monitor the defendant's conversations with an informer, without a search warrant but with the informer's knowledge and consent, did not violate the Fourth Amendment to the United States Constitution:

"Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights.... For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person ... (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.... If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks." 401 U.S. at 751, 91 S.Ct. at 1125, 28 L.Ed.2d at 458.

The protections of Article II, Section 7, of the Colorado Constitution, like its federal counterpart, are limited by reasonable expectations of privacy-that is, expectations which the law is prepared to recognize as legitimate. See People v. Gomez, Colo., 632 P.2d...