Opinion
No. 76-225
Decided September 22, 1977.
On basis that certain evidence against him had been unlawfully seized following illegal warrantless arrest, defendant convicted of second degree burglary, appealed.
Affirmed
1. CRIMINAL LAW — Search and Seizure — Probable Cause as to Driver — Evidence Properly Admissible — Against Companion. Where probable cause existed as to the driver of a car, evidence properly seized from him could be used against a co-occupant, even if probable cause had not arisen against the latter.
2. Probable Cause — Existence Found — Circumstances Stated. Where a person was in close company with one arrested for theft, and was himself carrying some of the suspicious items and where he gave officers a fictitious name, and there were statements by his companion which tended to implicate him, there was probable cause to arrest him.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
Rogers Dickerson, Richard W. Dickerson, for defendant-appellant.
Defendant, Jerry Lee Derrera, appeals his conviction of second-degree burglary on the ground that the trial court erred in refusing to suppress evidence which he claims was unlawfully seized following an illegal warrantless arrest. We affirm.
The facts surrounding the arrest and the seizure of the evidence in question are essentially as follows: At the time of his arrest, defendant was a passenger in the car of Charles Rudy Lamorie, who was stopped by Agent Connor of the Lakewood police for traveling forty miles per hour in a thirty mile per hour speed zone. Before Agent Connor was able to get out of his car, Lamorie approached the patrol car, appearing quite nervous. His hands and voice were shaking as he showed the agent his driver's license. After looking at his license, and explaining the reason for having stopped him, Agent Connor directed Lamorie to return to his own car.
Upon approaching Lamorie's car, the agent could see stereo equipment and a television set inside the car. He observed the defendant seated on the passenger side with a sewing machine on his lap, and a stereo speaker on the floorboard between his legs.
Because his suspicions had been aroused by the nervousness of the driver and the nature of the items in the car, Agent Connor radioed for assistance. Other Lakewood police cars arrived within minutes. At Agent Connor's request the driver and the defendant got out of the car, and defendant told the agent that his name was Jerry Lopez. He gave a fictitious address and birth date, explaining that he was a hitchhiker and had no identification with him. During this conversation, Agent Connor observed more suspicious items in the car, including a silverware chest, more stereo speakers, and a suitcase with an identification tag on which appeared the name, "Irene Henry," and the address, "440 S. Pierce Street, Lakewood."
Although there was some conflict in the testimony concerning the sequence of events, one of the agents testified that before the driver and the defendant were placed under arrest, Lamorie told the agent that "we" were moving a girlfriend, which explained the type of items in the car. However, when the agent offered to take Lamorie to his girlfriend's residence for verification he admitted that his story was not true. Lamorie also told the agents that his companion's name was Jerry Derrera, which fact was subsequently verified when defendant's wallet containing identification was found in the glove compartment of the car. Lamorie then stopped giving information, explaining, "Why should two get burned?"
In the meantime, other agents had been requested by radio to ascertain if a burglary had occurred at the address on the suitcase. While awaiting a response to this inquiry the agents frisked the defendant for weapons, and although no weapons were found, a patch cord, used to connect stereo speakers, was discovered in his shirt pocket.
Lamorie and the defendant were each handcuffed and placed in the back of separate patrol cars and all of the equipment found in Lamorie's car was taken into custody. Whether this handcuffing occurred prior or subsequent to actual confirmation of the burglary is not clear from the testimony. However, even if we accept the defendant's version that he was arrested prior to confirmation of the burglary being received, we nevertheless reach the same conclusion as did the trial court, that the officers had probable cause at that point in time to arrest both the defendant and Lamorie.
A warrantless arrest and search incident thereto is justified if the state is able to establish the existence of probable cause. See People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971). "Probable cause exists when the facts and circumstances of which the officers had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the persons sought to be arrested. These are not to be measured by the yardstick of legal technicality but rather by the factual and practical consideration of everyday life upon which reasonable and prudent men act." Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971).
Here, there is no question that the initial stopping of the vehicle for speeding and the questioning of its driver were lawful. Section 16-3-103, C.R.S. 1973. The suspicious conduct of Lamorie and the presence of what appeared to be "fruits" of a burglary coupled with his admittedly false explanation of the source of these items justified the arrest of the driver of the vehicle, and the seizure of the items in the vehicle pursuant to that lawful arrest. See People v. Thornton, 190 Colo. 397, 547 P.2d 1278 (1976).
[1] Just as the consent to a search on the part of one co-occupant is binding on a second co-occupant, and the evidence gained therefrom can be used against the latter, Frazier v. Cupp, 394 U.S. 731, 895 S.Ct. 1420, 22 L.Ed.2d 684 (1969), so is evidence admissible against one party if it was properly seized from another. Defendant cites no cases to us for the proposition that admissibility hinges upon the existence of probable cause against all defendants at the time evidence is properly seized from one of them. Indeed the rationale behind the exclusionary rule — that of deterring unreasonable conduct on the part of police officers, see Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963) — would not be furthered by such a rule. We conclude, therefore, that since probable cause existed vis-a-vis Lamorie, the evidence was properly admissible against defendant.
[2] As to defendant's alternative argument, we conclude that independent probable cause was in fact established for his arrest. Although it is true that association with guilty persons is not an acceptable basis for inferring probable cause, People v. Branin, 188 Colo. 235, 533 P.2d 1138 (1975), in this case Derrera himself was observed with some of the suspicious items on his lap and between his legs. He gave a fictitious name to the agents, which was contemporaneously contradicted by his companion before the arrest. His companion also made statements which tended to implicate defendant in the day's events ("We were moving a friend." "Why should two get burned?"). Finally, a patch cord was found in Derrera's pocket just prior to his arrest, pursuant to a lawful weapon frisk. See People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977); People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976); C.R.S. 1973, § 16-3-103(2). These facts warrant belief by a man of reasonable caution that the offense had been committed jointly by Derrera and Lamorie.
Defendant contends because he was handcuffed and placed in the back of a patrol car that the character of his detention amounted to an arrest, rather than a limited detention based upon reasonable suspicion of criminal activity. See People v. Casias, supra. Since we have found probable cause to arrest prior to the handcuffing, we need not address this issue.
We find no error in the trial court's refusal to suppress the evidence and find no merit in defendant's other assertions of error.
Judgment affirmed.
JUDGE COYTE and JUDGE VAN CISE concur.