Opinion
No. 26577
Decided August 30, 1976.
Defendant was convicted of possession of narcotic drugs for sale and appealed.
Affirmed
1. DRUGS AND DRUGGISTS — Narcotic For Sale — Evidence — Supported — Conviction. In prosecution for possession of narcotic drugs for sale, evidence — which included the fact that twenty balloons of heroin were found in defendant's shirt pocket — supported the conviction.
2. ARREST — Cab — Stopped — Police — Observe — Symptoms — Drug Use — Heroin — Shirt Pocket — Admissible. Where defendant hailed a cab, and by his subsequent actions caused driver to believe that he was about to rob him whereupon cab driver alerted police who stopped cab and observed that defendant manifested symptoms of drug use including slurred speech and confused movements, held, under these circumstances, arrest of defendant for being under influence of a narcotic drug was lawful; and twenty balloons of heroin which were found in defendant's shirt pocket during subsequent search were admissible in prosecution for possession of narcotic drugs for sale.
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
J. D. MacFarlane, Attorney General, Jean Dubofsky, Deputy, Thomas J. Tomazin, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Edward L. Kirkwood, Deputy, Lee Belstock, Deputy, for defendant-appellant.
[1] The defendant-appellant, Edward O. C. McNeal, was convicted of possession of narcotic drugs for sale and sentenced to the penitentiary. C.R.S. 1963, 48-5-20. The evidence clearly supports the conviction.
Now section 12-22-322, C.R.S. 1973.
[2] The sole issue which merits review relates to a search that was made after the cab in which the defendant was riding was stopped. Section 16-3-103(1), C.R.S. 1973. We affirm.
McNeal hailed the cab, and by his subsequent actions caused the driver to believe that he was about to rob him. The cab driver alerted the police who stopped the cab. The defendant refused to get out of the cab when the cab was stopped. His speech was slurred, his eyes were dilated, and his movements were confused. He also manifested other symptoms of drug use. He was arrested for being under the influence of a narcotic drug. C.R.S. 1963, 48-5-20(5). He was searched, and twenty balloons of heroin were found in a shirt pocket. A motion to suppress was filed by defense counsel, and after a full hearing, the motion was denied. The motion to suppress was fairly litigated in the trial court, and the issues of fact were resolved against the defendant. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, 44 U.S.L.W. 5313 (1976). The procedures and the facts parallel Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), and People v. Mathias, 189 Colo. 534, 542 P.2d 1296 (1975).
Now section 12-22-322(5), C.R.S. 1973.
Accordingly, we affirm.