People v. Woods

• Decision Date: 01 June 1971
• Docket Number: Nos. 25007,25045,s. 25007
• Citation: 485 P.2d 491,175 Colo. 34
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nathaniel WOODS, also known as Nathaeniel Woods, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert MILES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 491

485 P.2d 491

175 Colo. 34

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nathaniel WOODS, also known as Nathaeniel Woods,

Defendant-Appellant.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert MILES, Defendant-Appellant.

Nos. 25007, 25045.

Supreme Court of Colorado, En Banc.

June 1, 1971.

Carl Parlapiano, Dist. Atty., Daniel J. Sears, Deputy Dist. Atty., Pueblo, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, Denver, J. D. MacFarlane, Chief Deputy Public Defender, Brian T. Knight, Deputy State Public Defender, Pueblo, for defendants-appellants.

ERICKSON, Justice.

These interlocutory appeals are prosecuted pursuant to C.A.R. 4.1 and are consolidated because the facts and issues in both cases are the same. The appellants, referred to as defendants herein, contend that the trial court erred in denying their individual motions to suppress evidence which was seized from the car of the defendant Robert Miles. We find no error in the trial courts' denial of the defendants' motions to suppress, and accordingly, we affirm.

The defendants were both charged with the crimes of forgery (C.R.S.1963, 40--6--1) and conspiracy to commit forgery (C.R.S.1963, 40--7--35). The charges were based on the following facts: In June 1970, a number of checks were stolen from the office of a Pueblo attorney. The Pueblo Police Department was notified of the theft after an attempt was made to cash one of the checks in a Pueblo food store on June 20, 1970. On June 22, 1970, police officers contacted employees of the food store and were given a detailed description of the man who attempted to pass the check. On the same morning, the police department received a call from another Pueblo food store relating that an attempt had been made to cash a check similar to those stolen. This time, police officers were given a description of the parties attempting to pass the check, as well as a description of the vehicle (a 1965 red Mustang) in which they were riding. This information was broadcast over police radio, and the 1965 red Mustang in which the defendants were riding was observed. Somewhat later, after the vehicle was seen leaving a Safeway Store, the Mustang was stopped, and the defendants were arrested. On the same day, a line-up was held, and Robert Miles and another person, who is not before us, were identified as the individuals who attempted to cash certain checks at the Pueblo food stores. After identification was made at the line-up, a police officer submitted an affidavit for a search warrant to a Pueblo county judge, and based on the affidavit, a warrant was issued to search the 1965 red Mustang which was owned by Robert Miles. The search which was conducted pursuant to the warrant produced ten folded checks which were wrapped in a white handkerchief and concealed under the front seat of the Mustang.

The defendants contend that the search of the car was conducted pursuant to a search warrant and that the seizures did not arise out of a search incident to their arrest. Thus, they argue that the admissibility of the evidence seized must stand or fall on the validity of the search warrant. They claim that the search warrant was invalid, because the affidavit upon which the warrant was predicated contained false allegations and erroneous statements of underlying facts and circumstances which were relied upon by the court in issuing the warrant. On the basis of the errors alleged, they believe that the evidence seized pursuant to the warrant should be suppressed. United States v. Roth, 391 F.2d 507 (7th Cir. 1967).

We cannot agree that the right to search the car under the circumstances of this case is so narrowly proscribed. Because the officers elected to obtain a search warrant is no reason to hold that the officers cannot justify the search either as being incident to an arrest or under the authority of the exceptions and limitations announced in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Several states have already upheld automobile searches where warrants to search the vehicle proved defective, but where the officers had probable cause to search the vehicle. State v. Smith, 113 N.J.Super. 120, 273 A.2d 68 (1971); State v. McRae, S.C., 178 S.E.2d 666 (1971); State v. McMillan, 206 Kan. 3, 476 P.2d 612 (1970).

In determining whether there was probable cause to support the issuance of the warrant, we, like the county judge, must rely on the materials contained within the four corners of the affidavit. People v. Brethauer, Colo., 482 P.2d 369 (1971); People v. Baird, Colo., 470 P.2d 20 (1970); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963). If, upon cross-examination by defense counsel, it appears that the affiant included statements in the affidavit known to him to be false, they must be stricken, and they may not be considered in determining whether the affidavit will support the warrant that was issued. However, if the material in the affidavit is stated to be or appears to be hearsay information obtained from an informant or other person, and the information turns out to be incorrect, we will not use hindsight as a test to determine whether the search warrant should or should not have been issued. The law is clear that a search warrant may be based on hearsay, as long as a substantial basis for crediting the hearsay exists. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); People v. Brethauer, Colo., 482 P.2d 369 (1971).

None of the errors alleged, when stricken, rob the affidavit of facts which establish probable cause, and consequently, they are not fatal, as in United States v. Roth, 391 F.2d 507 (7th Cir. 1967). Rather, the errors asserted are merely technical, and as such, they are not to be looked to in determining the sufficiency of the warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We, therefore, affirm the trial courts' rulings on the motions to suppress.

Our ...