Petty v. People

• Decision Date: 18 November 1968
• Docket Number: 22563,Nos. 22562,s. 22562
• Citation: 447 P.2d 217,167 Colo. 240
• Parties: Bobby W. PETTY, Michael Allen Smith, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 217

447 P.2d 217

167 Colo. 240

Bobby W. PETTY, Michael Allen Smith, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

Nos. 22562, 22563.

Supreme Court of Colorado, In Department.

Nov. 18, 1968.

Bert A. Gallegos, Denver, for Bobby W. Petty.

Gary H. Hemminger, Denver, for Michael Allen Smith.

Duke W. Dunbar Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Paul D. Rubner, Asst. Atty. Gen., Denver, for defendant in error.

GROVES, Justice.

Plaintiffs in error, hereinafter referred to as defendants or by name, were charged in the information with unlawful possession of cannabis sativa L., commonly known as marijuana, and conspiracy to possess the same. The jury rendered a verdict of guilty against both defendants on each count. At the close of the People's case, defendants moved for a judgment of acquittal on the grounds of insufficiency of the evidence to establish possession of the substance and error on the part of the trial court in failing to suppress certain evidence. This motion was denied and upon renewal at the close of all testimony, was again denied. The same matters are presented here.

The defendants, each twenty-two years of age, were arrested on December 21, 1965. They had resided in rented quarters at 732 East 10th Avenue in Denver and at the time of their arrest had either moved, or were contemplating moving, into an apartment at 1719 Pennsylvania Street in Denver, herein referred to as the apartment. The apartment, consisting of five rooms, a kitchen and a bathroom, had been occupied until the time of the arrest or until shortly prior thereto by members of a 'folk music bunch' called the Children, the leader of which, according to Petty's information, had been under bond to appear on a narcotics charge and had disappeared.

The apartment was in an untidy condition. Sleeping accommodations consisted of mattresses on the floor. Automobile parts were strewn about; and, in addition, there were boxes, junk, women's clothing and some items of furniture. The ownership of the contents of the apartment was not established except that on the night before the arrest Petty had brought his own stereophonic equipment to the apartment. At the time of the arrest Smith had on his person a receipt from Public Service Company of Colorado dated December 17, 1965 in the amount of $35. This represented a meter deposit for the apartment. There was testimony to the effect that immediately prior to December 21, 1965 the lock on the door leading into the apartment was broken and the door could not be locked.

Late in the morning of December 21, 1965, officer C. A. Johnson of the Denver Police Department was looking for a burglary suspect who was reported to have long hair. Smith, who had long hair, was standing at the corner of the block in which 732 East 10th Avenue is located. Johnson arrested him without a warrant for suspicion of burglary. Johnson obtained the assistance of two other police officers and, apparently learning from Smith that he resided at or had resided at 732 East 10th Avenue, the four went to that address. Smith remained outside with the other two police officers and Johnson with the assistance of the manager of the premises entered the quarters occupied or formerly occupied by the defendants. Smith gave the officers the 1719 Pennsylvania Street address and, according to some of them, stated that he resided there. They then proceeded to the apartment.

Petty was attending Opportunity School. He testified that he left the school about noon and went in search of Smith, going first to 732 East 10th Avenue and then to 1719 Pennsylvania Street where he encountered Smith, the three officers above-mentioned, and a detective of the Denver Police Department. Some of the police officers testified that Petty was already at the apartment when they arrived. The officers and the detective searched the apartment finding in one room near the stereo equipment a pasteboard box which contained marijuana, Petty's naval discharge certificate and a navy reimbursement certificate made out to Petty. In another room they found an oatmeal carton in which there was marijuana. Petty was then placed under arrest. Petty had clothing in a laundromat nearby and the officers accompanied him to this establishment in order that he might obtain his laundry. Some of the officers testified that Petty had said that certain items of women's apparel at the apartment belonged to his wife. Petty testified that he was not married. He denied making any such statement and denied any knowledge of ownership of the apparel.

The police personnel submitted to the defendants a form of consent to search the apartment and each of the defendants signed this form. The testimony was in conflict as to whether any oral consent to search was given, and as to whether the written consent to search was executed prior to or after the search. It was also in conflict as to whether the defendants signed and delivered the written consent voluntarily. The officers and detective testified that the defendants orally and voluntarily granted permission in advance to search and that they signed and delivered the consent voluntarily prior to the search. Smith did not take the witness stand but In camera, outside the presence of the jury and in connection with the motion to suppress evidence, he testified: that he signed the consent to search by reason of fear and what the police would do to him if he did not; that he was told unless he consented to the search he would be thrown in jail; and that the consent form was first presented to him and Petty after the search of the apartment. Petty testified in his own behalf and gave similar testimony as to the involuntary character of the...