Opinion
Rehearing Denied Nov. 6, 1975.
Page 647
John D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for defendant-appellant.
COYTE, Judge.
Defendant Thomas D. Benson was convicted under C.R.S.1963, 48--5--2 (now s 12--22--302, C.R.S.1973), of unlawful possession of narcotic drugs. He brings this appeal alleging that it was error for the trial court to deny his motion to suppress certain packets of heroin removed from a black shaving case, since such evidence was the product of an unlawful search. We affirm.
At approximately 11:05 P.M. on the evening of February 27, 1974, two offficers of the Denver Police Department responded to a call from a Denver motel. The call was instigated by the bartender at the motel who informed the officers on their arrival that he had observed an individual in the lobby of the motel who looked like the man who had robbed him six weeks earlier. Furthermore, he reported, the individual had been walking in and out of the motel lobby and gave the appearance that he was 'casing' the place. Upon the arrival of the officers the bartender identified the defendant to the officers as the robbery suspect.
The officers approached the defendant who was standing in the foyer of the lobby, a black shaving kit under his arm. One of the officers asked the defendant who he was and what he was doing there. In response Benson voluntarily displayed a Colorado temporary driver's permit and stated that he was registered at the motel and waiting for a cab. When the officer checked at the desk to see if Benson was registered at the motel he was told there was no registration in that name. Benson insisted he was registered in the motel, but under the name of J. J. Jackson. After further inquiries at the desk, the officer became suspicious since there was no registration in the name of J. J. Jackson. Both officers proceeded to 'pat down' the defendant, finding no weapons on his person. The defendant was then asked what was in the shaving bag. While the officers disagreed as to the exact words with which Benson responded--the effect was substantially the same in their differing versions. Benson admitted to carrying a razor and invited the officers to examine the case with such words as: 'You can look' or 'You can see, man.' The defendant left the shaving kit on top of a newspaper vending machine in the lobby and approached the reservation desk with one of the officers. The other officer then opened the shaving kit and discovered three condoms containing 310 balloons of suspected heroin inside. The officers placed the defendant under arrest at that time.
We agree with the trial court that there was sufficient probable cause to arrest defendant for armed robbery at the time the search commenced, and, in addition, that defendant gave the officers a valid consent to search. Hence, introduction of the heroin at the trial was proper.
A warrantless search may be made and upheld if prior to the search the officers had probable cause to arrest the defendant. People v. Noreen, 181 Colo. 327, 509 P.2d 313.
'An officer has probable cause when the facts and circumstances within his knowledge--or upon which he has reasonably trustworthy information--are sufficient to warrant a reasonably prudent man in believing that the person to be . . . arrested has committed or is committing an offense.' People v. Thompson, Colo., 523 P.2d 128.
The record here indicates that the officers commenced their investigation after the defendant had been identified as an armed robbery suspect by a citizen. Any inquiry into the validity of an arrest based on an informant's disclosure centers on the reliability of the information provided by the informant.
'(W)hen the source of the information is a citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable . . ..' People v. Hubbard, Colo., 519 P.2d 951.
Hence, since the defendant had been identified by the motel's bartender, the officers had sufficiently reliable information on which to base an arrest for armed robbery. Additionally, in response to the officer's inquiries the defendant produced no positive identification other than a temporary driver's permit, he claimed to be registered at the motel under a name other than that which appeared on the driver's permit, no registration in the exact name he offered could be found, and his behavior in the lobby could be consistent with his performing reconnaissance for a future robbery. Examination of the facts and circumstances of this case compel the conclusion that sufficient probable cause to arrest for armed robbery existed at the moment the officer opened the shaving kit, even though the search preceded the arrest, See People v. Noreen, supra, and therefore the search was not unreasonable within the meaning of the Fourth Amendment. See Early v. People, 178 Colo. 167, 496 P.2d 1021.
Defendant further alleges that no valid consent was given prior to the search of the shaving kit. We agree with the finding of the trial court that consent had been given. A consent search is outside the ambit of traditional Fourth Amendment warrant requirements. People v. Hancock, Colo., 525 P.2d 435. A search conducted without a warrant but with voluntary consent of the person whose property is searched is reasonable and not in violation of either the United States Constitution or Colo.Const. Art. II, sec. 7. Phillips v. People, 170 Colo. 520, 462 P.2d 594. The limitations on initiating such a search are that the officers may employ neither coercion nor duress in obtaining the requisite consent. A voluntary consent has been defined in Colorado as one 'intelligently and freely given.' Phillips v. People, supra.
Whether consent has been intelligently and freely given is a question to be determined from the 'totality of the circumstances' in each case. Capps v. People, 162 Colo. 323, 426 P.2d 189. The 'totality of the circumstances' test has recently been adopted by the United States Supreme Court in determining the question of 'voluntariness' under the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Whether a partifular defendant knew he had the right to refuse consent was held by the Court to be only one factor in the totality to be considered.
'(T)wo competing concerns must be accommodated in determining the meaning of a 'voluntary' consent--the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.' Schneckloth, supra.
Spontaneous uncoerced confessions made following arrest and without benefit of Miranda warnings have been held admissible in Colorado so long as they precede police interrogation. Washington v. People, 158 Colo. 115, 405 P.2d 735, Cert. denied, 383 U.S. 953, 86 S.Ct. 1217, 16 L.Ed.2d 215. Also Gilmore v. People, 171 Colo. 358, 467 P.2d 828. Similarly, consent to search, spontaneously offered prior to any police request to search is presumptively freely and intelligently given. While Phillips v. People, supra, may hold that a defendant must be advised that he has a right to refuse consent to a search; we view Phillips as distinguishable on its facts since Phillips was already in custody when the request to search his house was made.
Here, Benson was not in custody, there is no record of any coercion on the part of the officers who arrested him, and no such charges have been made by him. Indeed, the officers did not even request that they be allowed to search the shaving kit. Benson freely left the shaving kit behind on the newspaper dispenser when he approached the motel desk to insist on his being registered, on his own initiative, and he invited the officers to examine the contents of the bag in response to their queries about its contents. While the defendant may have intended to bluff his way out of the situation, the words he used clearly indicated to the officers that he had no objection to their examining the contents of the bag. In view of the totality of the circumstances, there was a valid and voluntary consent to search given by the defendant.
Accordingly, the officers conducted a legal search justified by sufficient probable cause to arrest at the time of the search and in addition a valid consent was freely given. There was no error by the trial court in denying defendant's motion to suppress and the heroin packets were properly admitted into evidence.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.