Roybal v. People

• Decision Date: 09 September 1968
• Docket Number: No. 22459,22459
• Parties: Porfirio Albert ROYBAL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 875

444 P.2d 875

166 Colo. 541

Porfirio Albert ROYBAL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22459.

Supreme Court of Colorado, In Department.

Sept. 9, 1968.

Joseph R. Marranzino, Denver, for plaintiff in error.

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

KELLEY, Justice.

Roybal is here on a writ of error challenging his conviction for possession of cannabis, commonly known as marijuana, in violation of C.R.S. '53, 48--6--2, and C.R.S. '53, 48--6--20 (third offense). He was sentenced to the Colorado penitentiary for a period of not less than seven years nor more than ten years.

Three grounds for reversal are assigned by Roybal. Two of the assignments relate to the denial of his motion to suppress evidence on the basis of unlawful search and seizure, and the third relates to an instruction given by the court subsequent to the submission of the case to the jury. The two search and seizure questions will be considered under part I and the instruction question under part II.

I.

Roybal's conviction is based in part upon marijuana found under the front seat of the automobile which he was driving immediately prior to his arrest for driving a motor vehicle while his operator's license was suspended; and in part upon fragments of marijuana recovered from his clothing in the course of a routine investigation which occurred immediately after his arrival at the police station.

Roybal, prior to trial, moved to suppress the evidence on the ground that both seizures violated his rights under Article II, Section 7 of the Constitution of the State of Colorado, and under the Fourth Amendment of the United States Constitution. The trial court denied the motion. The validity of the searches and seizures was again raised when the evidence was offered at the trial. The court overruled the objection. The alleged errors were preserved for our consideration in the motion for new trial.

The facts as developed in the hearing on the motion to suppress are not in controversy.

Two Denver police officers, Tate and Reiber, were assigned to the 'task force,' which is described as a 'unit instituted by the former chief as a crime suppression measure,' which operated within specific areas of the city.

About 9:30 o'clock p.m., May 7, 1963, the officers were seated in their parked cruiser near the intersection of Twentieth Street and Washington Avenue in the city of Denver. The cruiser was headed south on Washington Street, a one-way street south. At this time a car driven by a man, accompanied by a woman passenger seated next to him, passed the cruiser. Officer Tate recognized the driver of the car as Roybal, whom he knew to be a person who had had his operator's license suspended. Tate further observed that the right taillight on the car was broken and in violation of the municipal code.

The police cruiser followed the Roybal car for about two blocks before sounding its siren. When the siren was turned on, the woman passenger, Inez Moya, leaned forward so that she was almost out of view of officer Tate. By the time the Roybal car came to a stop, Moya had resumed her upright position.

Tate proceeded to the driver's side of Roybal's car and asked Roybal if he was aware that his right taillight was broken. Roybal replied in the affirmative. Tate then asked to see his operator's license. Roybal answered that he had left it at home. Tate then testified:

'I replied to Mr. Roybal that this was not true, because I knew Mr. Roybal was driving under suspension. I told Mr. Roybal at that time that he was going to jail. I then called Mr. Roybal back to the police car. I asked Mr. Roybal, knowing of his past associations, that he--I asked him if the car was clean, and he said, 'Yes.' I said, 'do you mind if I look at it?' I received no answer from Mr. Roybal. I looked through the car. I found under the driver's side a paper sack, containing three small plastic sacks of a green weed-like material.'

In further reference to his past knowledge of the defendant, Tate testified that he did not know Roybal personally but that he did know him 'in relation to his previous narcotics run-ins'; that he was not familiar with the 'particular cases,' but that he 'knew that his associations were of this nature.' On cross-examination, officer Tate was asked this question: 'Now I believe you testified on direct examination that you have within your personal knowledge that the defendant was previously engaged in possible traffic of narcotics, is that right?' 'A. Yes, sir.' And when asked where he obtained this information, he answered:

'This information was furnished by a pamphlet that is put out by the Intelligence Bureau on either a monthly or quarterly basis that lists the property recovered by the Intelligence Bureau; the parties arrested; the date of their arrest and what was in their possession at that time. Photographs are also furnished to the task force of all parties appearing on the list of previous arrests.'

The defendant concedes that his arrest for a violation of the state motor vehicle code was valid, but contends that the search was not incident to the arrest. Roybal relies upon Hernandez v. People, 153 Colo. 316, 385 P.2d 996, and in particular the language which says, in effect, that in a search incident to a lawful arrest, the officers must be looking for specific articles and must not be conducting a general exploratory search. Hernandez is still the law.

However, this is not Hernandez. Each case must be tested on its own particular facts and the test is always whether the search was reasonable under the circumstances. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

In Baca v. People, 160 Colo. 477, 418 P.2d 182, we reaffirmed the proposition that an officer conducting a reasonable search, either under a valid search warrant or incident to a valid arrest, who uncovers contraband or articles the possession of which is a crime, may seize those articles even though they may not relate to the crime for which the arrest was made.

Also in Baca we adopted the following statement from Charles v. United States, 9 Cir., 278 F.2d 386...