State v. Segovia, 10266

Citation468 P.2d 660,93 Idaho 594
Decision Date01 May 1970
Docket NumberNo. 10266,10266
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Chick SEGOVIA, also known as Florentino Segovia, Defendant-Appellant.
CourtUnited States State Supreme Court of Idaho

Henry F. Reed, deceased, and Derr, Derr & Walter, Boise, for defendant-appellant.

Robert M. Robson, Atty. Gen., and Richard Greener, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Chief Justice.

Chick Segovia, also known as Florentino Segovia, the appellant was charged with the felony of illegal possession of a narcotic drug (marijuana). He stood trial before a jury, was found guilty and was sentenced to the state penitentiary for a term of five years. He appealed from this judgment of conviction.

On December 29, 1967, an informer, who had worked in narcotics cases with the Boise City Police Department on past occasions, advised officer John Cobley that he could purchase marijuana from Chick Segovia. The informer and officer Cobley drove to the vicinity of Segovia's home, but were unable to locate it. The next evening, the informer brought two marijuana cigarettes to officer Cobley's home and told Cobley that he had purchased them from Segovia that same day. Cobley and the informer agreed that the informer would arrange for the purchase of a one-pound coffee can of marijuana from Segovia on the following evening, which purchase was to be executed under the surveillance of officer Cobley on December 31, 1967.

The officer, who then had Segovia's address, with another policeman set up a surveillance of the appellant's home at about 6 o'clock p. m. that evening. They soon observed the appellant emerge from the rear of his garage, which was attached to his home, with two large brown paper bags and walk toward a large metal trash can located in the back yard. Segovia deposited one of the sacks in the trash can and then walked back to the corner of the garage with the other one and stood there for a few minutes.

While Segovia was standing near the garage, the informer drove up, stopped his car and walked over to him. They were joined by two other people who emerged from the garage, but who soon left in an automobile. The officers, not knowing whether the informer had left with the others, followed the automobile, stopped the car, and found the informer was not in it. The officers then returned to the defendant's house, but the informer's car was gone by this time. The officers then went to Cobley's home where the informer was waiting with a container of a quantity of marijuana. This was not, however, introduced into evidence against the defendant at trial.

The informer advised the officers he had purchased the marijuana from Segovia. The officers radioed for other officers to assist them and then returned to appellant's home to arrest him. Several officers came to their assistance and were spread out around the house when Sergeant Palmer, with officer Cobley of the Boise police, went to the door and was met by Mrs. Segovia. Segovia was right behind her, and Palmer arrested him for possession of a narcotic, marijuana.

The officers then searched the house, the garage, the trash can in the back yard, and the lot surrounding the house without having first obtained a search warrant. During their search the officers discovered: (1) a small quantity of marijuana in a vase on top of a china closet in the living room; (2) a small plastic bag containing a small quantity of marijuana in a record player which was in the kitchendining area of the home; (3) a pipe containing a small quantity of marijuana which was found in the bedroom; (4) a one-pound coffee can full of marijuana which was found in a bush in the back yard about three feet from a trash can; (5) approximately fifty 'roaches' (cigarettes) found in paper sacks in the garage and in the trash can.

The state offered into evidence Exhibit 2 consisting of those items designated above as (1) and (2); Exhibit 3, the one-pound coffee can containing marijuana, item (4) supra; Exhibit 4, the pipe, item (3) supra. Item (5) supra, was not offered into evidence. Appellant objected to the admission into evidence of Exhibit 2 and Exhibit 4 on the grounds, first, that the exhibits do not contain any usable amount of any product that could be classified as a narcotic and, second, that the analysis of the exhibits did not show a narcotic was present. These objections were overruled by the court and the exhibits were admitted into evidence. Appellant objected to the admission into evidence of Exhibit 3 (the one-pound coffee can containing marijuana) on the ground that there was nothing in the testimony indicating that the exhibit was in his possession.

Concerning Exhibit 3, the officers testified that this can of marijuana was found under a bush about three feet from the trash can and that the appellant had earlier been observed walking along a path to the trash can. The officers testified that there was a fresh cover of snow on the ground at the time the officers observed appellant walk to the trash can, that they found foot prints within three feet of the bush and that there were no other footprints within fifteen feet of the bush in either direction. They also testified that there was very little snow on the paper sack containing the marijuana.

In appellant's initial brief there are numerous errors assigned. Subsequent to filing of this brief, appellant's initial counsel passed away, and other counsel were retained for him. Additional briefs were submitted to the court by both counsel.

In appellant's second brief he discusses the issues he claims are before this court for consideration. It is asserted that there is an issue as to whether there was probable cause to arrest appellant without a warrant for his arrest. He contends that all testimony of officer Cobley pertaining to conversation he had with the informant was hearsay and that appellant's motion to strike this testimony should have been granted. The record discloses, however, that there was no objection interposed to any testimony of officer Cobley concerning conversations he had with the informer. The first objection to Cobley's testimony came when he was describing when and where the search was being conducted, at a time after appellant had been arrested. Cobley was testifying as to the incident of finding the can of marijuana near the trash can. Appellant then objected to

'any further questions along this line. This was an illegal arrest and made without probable cause and therefore I believe that the testimony given up to this point should be stricken.'

This objection and motion to strike were denied by the trial court. However, appellant did not assign error to this ruling by the trial court. Thus if it is the appellant's contention that the asserted illegality of the arrest should be the basis of this court's dismissal of the action it must fail because the trial court's ruling in this regard was not assigned as error (see State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935)) and also because illegality of an arrest is no defense in a criminal action. Once the court has acquired jurisdiction over the person of the defendant, it is immaterial how the jurisdiction was obtained. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S 436, 7 S.Ct. 225, 30 L.Ed. 421, (1886); State v. Poynter, 70 Idaho 438, 220 P.2d 386 (1950).

In any event, it is our conclusion that the arrest in the instant case was not an illegal one. In State v. Loyd, 92 Idaho 20, 435 P.2d 797 (1967), this court stated

'A peace officer may make an arrest without a warrant when a felony has been committed and he has reasonable cause to believe that the person or persons arrested have committed it. I.C. § 19-603; State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct 1302, 93 L.Ed. 1879 (1949). Reasonable cause exists where there is such state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that such person is guilty. State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.L.R. 195 (1929); Brinegar v. United States, supra * * *.' 92 Idaho at 23, 435 P.2d at 799.

To the same effect are Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327 (1959); Beck v. Ohio, 379 U.S 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). In the present case the officers observed much of the initial transaction between their informer and appellant, and although they did not see the actual transfer of marijuana from appellant to the informer, they had the statement of the informer, whom they knew from past occasions to be reliable, that he had purchased the marijuana from appellant. This marijuana was delivered to the officers shortly after its purchase, and the can was in a brown paper sack similar to the one the officers had observed appellant carrying during their surveillance. Under these circumstances it is our conclusion that the officer had reasonable cause to believe that appellant had possession of a narcotic-marijuana-and his arrest for that charge was based on reasonable cause within the meaning of I. C. § 19-603.

Appellant contends that the search of his home, garage and yard following his arrest constituted an unconstitutional search and seizure because it was neither pursuant to a search warrant nor incidental to a lawful arrest, and, in any event, went beyond the permissible scope of a search incidental to an arrest. See Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). We find it unnecessary to consider whether there was an unconstitutional search and seizure. It is our conclusion that any objection to the admissibility of the evidence was waived by appellant by his failure to present the issue to the trial court either by a pre-trial motion to suppress the evidence or during the trial by...

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22 cases
  • State v. Murphy, 10827
    • United States
    • United States State Supreme Court of Idaho
    • July 18, 1972
    ...cannot grant relief on the basis of an erroneous trial court ruling where such was not assigned as error on appeal. State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970).2 I.C. § 19-2117:'Testimony of accomplice-Corroboration.-A conviction can not be had on the testimony of an accomplice, unl......
  • State v. Randles, s. 18193
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1990
    ...... State v. Segovia, 93 Idaho 594, 468 P.2d 660 (1970); White v. United States, 315 F.2d 113 (9th Cir.1963); United States v. Warren, 594 F.2d 1046 (5th Cir.1979). ......
  • State v. Southwick, 40855.
    • United States
    • Court of Appeals of Idaho
    • December 3, 2014
    ...State v. Slawson, 124 Idaho 753, 757, 864 P.2d 199, 203 (Ct.App.1993). Possession may be either actual or constructive. State v. Segovia, 93 Idaho 594, 598, 468 P.2d 660, 664 (1970) ; State v. Garza, 112 Idaho 778, 784, 735 P.2d 1089, 1095 (Ct.App.1987). In order to prove constructive posse......
  • State v. Southwick
    • United States
    • Court of Appeals of Idaho
    • December 3, 2014
    ...v. Slawson, 124 Idaho 753, 757, 864 P.2d 199, 203 (Ct.App.1993). Possession may be either actual or constructive. State v. Segovia, 93 Idaho 594, 598, 468 P.2d 660, 664 (1970) ; State v. Garza, 112 Idaho 778, 784, 735 P.2d 1089, 1095 (Ct.App.1987). In order to prove constructive possession,......
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