People v. Mathis

542 P.2d 1296, 189 Colo. 534, 1975 Colo. LEXIS 869
Supreme Court of Colorado·Decided December 1, 1975·No. 26413·Published·Cited by 26 cases

Opinions

MR. JUSTICE HODGES

delivered the opinion of the Court.

Defendant Mathis was convicted of possessing more than one-half ounce of marijuana, a felony. 1 He appeals the trial court’s denial of his motion to suppress the evidence obtained when he was arrested and when his car was searched. He argues that no probable cause existed for the arrest or the search. We affirm the trial court’s finding of probable cause.

I.

The suppression hearing disclosed that several Colorado Springs police officers were ordered to respond to a citizen’s complaint that suspicious people possibly involved in a drug transaction were parked in a car [536] near the complainant’s home. Officer Lopez arrived on the scene and asked the driver (the defendant) and the other two occupants of the car for their identification. Officer Lopez testified that at this time he smelled an odor of marijuana “coming from within the vehicle” and saw some pipes and papers on the floorboard that could have been used for smoking marijuana.

Meanwhile, Officer Ives arrived and advised Officer Lopez that he should arrest one of the occupants who failed to produce identification. No testimony expressly revealed that Lopez at this time informed Officer Ives that he had detected the marijuana odor. However, Ives spotted the pipes and wrappers in the car while he was removing the passenger with no identification from the car.

Officer Ives was then motioned across the street by Mr. Firkens who lived in a house there. Mr. Firkens told him that the defendant parked his car across the street with three other parties inside. A black male and the defendant got out of the car, opened the trunk, and pulled out a brown bag. They took a cellophane bag from the brown bag and the black man put it in his pocket. He then went into a house which Officer Ives remembered as the scene of six earlier narcotics arrests. According to Mr. Firkens, the black man never returned to the car after the police arrived.

After consulting with other officers that had arrived on the scene, Officers Ives and Lopez opened the trunk of the car and seized fourteen cellophane bags of marijuana found in a brown paper bag. The defendant was also searched and a small quantity of marijuana was found in one of his pockets.

The testimony of the officers differed as to the exact time of the arrest of the defendant on the drug charges. Officer Lopez testified that he arrested the defendant in his car after he detected the marijuana odor and saw the suspected narcotics paraphernalia. Officer Ives, on the other hand, testified that the defendant was not arrested until he was taken out of his car and frisked, which occurred after he had interviewed Mr. Firkens.

II.

The defendant alleges, first of all, that no probable cause existed to justify his initial detention by Officer Lopez because the informant’s identity and reliability were not known to the police.

We find this argument without merit. Probable cause is not always necessary for an officer to detain a person for questioning. Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Mangum, 189 Colo. 246, 539 P.2d 120 (1975); People v.Stevens, 183 Colo. 399, 517 P.2d 1336 (1973); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). As measured by the criteria set forth in Stone, Officer Lopez had reasonable cause to detain the defendant after receiving the radio dispatch relating a citizen’s fear and concern over the suspicious activities of the occupants of the car parked outside her home. [537] A reliable informant’s tip can be a reasonable basis for making an investigatory detention. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973). In this case, the record reveals that the citizen informant who identified herself and who voluntarily reported the suspicious activity, was not a covert, undercover informant likely to fabricate information in return for immunity or other compensation. People v. Trontell, 188 Colo. 253, 533 P.2d 1124 (1975); People v. Lucero, supra; People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971). Upon such a trustworthy tip, the officers would have been derelict in their duty if they had not detained the defendant and his passengers to check their identity and the nature of their activity. In contrast, People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971), which the defendant cites in support of his position, was a case where the officer had no indication of the identity of a fellow officer’s informant or the circumstances in which the tip was given.

The defendant also argues that no probable cause existed later to justify his arrest or search of his car. He contends that neither Officer Lopez or Officer Ives alone had enough information to constitute probable cause as they did not communicate their information to one another before arresting him or searching his car.2 He also argues that Officer Lopez’s testimony as to the marijuana odor should not be believed since the car was a convertible and because the officer unaccountably never communicated this alleged odor to Officer Ives.

However, we do not have to reach most of the foregoing issues because we find that Officer Ives alone had sufficient information for probable cause to arrest the defendant and search his car. The radio dispatch, the officer’s observation of the suspected narcotics paraphernalia, the statements of Mr. Firkens concerning the activities of the defendant, and the officer’s knowledge of the six prior narcotics arrests at the house which the fourth man entered, amounted to sufficient probable cause for the arrest.

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People v. Mathis, 542 P.2d 1296, 189 Colo. 534, 1975 Colo. LEXIS 869 (Colo. 1975).

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People v. Mathis
542 P.2d 1296 (Supreme Court of Colorado, 1975)