Wilson v. People

• Decision Date: 11 January 1965
• Docket Number: No. 20728,20728
• Citation: 156 Colo. 243,398 P.2d 35
• Parties: John Frederick WILSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 35

398 P.2d 35

156 Colo. 243

John Frederick WILSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20728.

Supreme Court of Colorado En Banc.

Jan. 11, 1965.

Edward J. Byrne, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

The defendant below, John Frederick Wilson, was convicted of possession of heroin and conspiracy to possess heroin. He brings error here.

On December 28, 1960, three members of the Denver Police Department had the apartment building in which Wilson and his wife lived under surveillance. They saw a car containing three women drive away from the apartment house, and decided to stop it because they 'thought there was a possibility there was dope in the car.' They found no narcotics in it, but decided to go to the Wilsons' apartment anway. They had neither search nor arrest warrants.

After learning which apartment was Wilson's, they went to the door, knocked and identified themselves as police officers. Someone shouted, 'Just a minute'; but since the officers heard someone running, they broke the door down. One officer followed Mrs. Wilson into the kitchen, where he found certain items, including burnt bottle caps, syringes, hypodermic needles, and medicine droppers. Another officer, after questioning Wilson, found a balloon on the livingroom floor containing thirteen capsules of heroin.

The information was filed on January 5, 1961. A motion to suppress the articles and heroin obtained from the Wilsons' apartment was made on November 7, 1961. The motion was denied without findings on December 4, 1961. The case came to trial on April 11, 1962, and the jury found Wilson guilty of conspiracy to possess heroin, and possession of heroin.

As in Gonzales v. People Colo., 398 P.2d 236, also decided by us today, the defendant's major argument is that the evidence seized by the police was obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution. And, as in Gonzales, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was binding on the trial court at the time of the motion to suppress, even though the decision had not been handed down at the time of the defendant's arrest. For a full discussion of the effect of Mapp under such circumstances, see Gonzales, decided this day.

The basic premises here are the same as those set forth in Gonzales. In order to justify the search of Wilson's apartment, it must have been incident to a valid arrest. Ordinarily, one's house may lawfully be searched without a search warrant when the search is incidental to a valid arrest at the house, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Hernandez v. People, 153 Colo. ----, 385 P.2d 996, and such search is legal even though it would have been possible to procure a search warrant. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

Under the criteria set forth today in Gonzales, we agree with the defendant that the evidence seized by the police in this case was obtained illegally. Sergeant Borden testified as follows:

'Q. When you knocked on the door you were planning to arrest these people, were you not?

'A. No, sir, I wanted to search for heroin and opium derivatives.

'Q. You didn't go there to make an arrest unless you found something?

'A. That is correct.'

And officer Norden testified:

'Q. You weren't going to make an arrest, you didn't go there to arrest Mr. Wilson?

'A. We went there to further our investigation, if an arrest was necessary we would make it, yes, sir.'

Sergeant Borden also testified that the arrest of Wilson took place after the search of the apartment. It is thus clear that the purpose of the entry into Wilson's apartment was search, not arrest, and the circumstances are such that a search without a warrant was clearly illegal. See Agnello v. United States, supra; Hernandez v. People, supra.

The result here arises from the fact that before Mapp was announced law officers in this state were not concerned with the necessity of obtaining a warrant before a search of a home could be made. They were justified in following this course of action in this state by reason of Massantonio v. People, 77 Colo. 392, 236 P. 1019 and Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 95 L.Ed. 1782. For those cases held that if evidence of a crime was found upon the search of a home, no matter how illegally or in how shocking a manner it may have been obtained, the evidence was admissible. But Mapp had radically changed this approach to law enforcement at the time of the hearing of the motion to suppress in this case. Laudable ends no longer justify illegal means to obtain those ends and illegal searches can no longer furnish a foundaction for the admission of evidence found and taken under illegal search. Wilson's motion to suppress the evidence taken in the illegal search should have been granted. Its denial constitutes reversible error.

The following quotations from Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354, 355-356 (1956), are singularly apposite here:

'* * * It is argued that the arrest was lawful because the officers had probable cause to know that a felony had been committed and, based on the tip, that Lee had committed it. But we do not reach that question because the search and seizure were not in reality incident to the arrest. The testimony shows that the search and seizure preceded the arrest, and that the officers intended by the entry and search to secure evidence upon which to predicate the subsequent arrest. * * * A number of courts have held in similar circumstances that such a search is not incident to the arrest, but rather the arrest is in truth incident to the search [citing cases]. And of course the search cannot be justified by what it turned up. [citing cases]

'Since there was no arrest to which the search and seizure were incident, and since there was no search warrant, the search and seizure of the guns were unlawful under the Fourth Amendment to the Constitution of the United States, for there were no circumstances which could justify dispensing with the necessity for a search warrant. * * *'

See also the penetrating discussion by Mr. Justice Stewart concerning warrantless arrests contained in Beck v. Ohio, 85 S.Ct. 223, 13 L.Ed.2d 142 (decided Nov. 23, 1964).

The People seek to justify the search and seizure here on the basis of CRS '53, 48-6-11. That statute requires that officers:

'* * * having personal knowledge or reasonable information that any of the drugs mentioned in this article are kept in violation of law or on any person or in any polace, shall search such suspected person or place without a warrant and without any affidavit being filed, and if such officer find upon the person or the premises such drugs, he shall seize the same and arrest any person...