Opinion
Rehearing Denied Sept. 23, 1975.
Page 1269
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.
RULAND, Judge.
Defendant, Albert T. Garcia, was tried by a jury and convicted of possession of narcotic drugs in violation of s 12--22--302, C.R.S.1973. We affirm.
I. Motion to Suppress
On appeal defendant asserts first that the trial court erred in not granting his motion to suppress nine balloons found to contain heroin, one of which was seized from the car in which defendant was riding and the remainder in a subsequent search of defendant's person.
The events pertinent to defendant's motion to suppress are generally undisputed. On January 29, 1974, defendant was a parolee under supervision of the Colorado Division of Parole. On that date, Officers Cinquanta, Barnhill, and Humphrey of the Denver Police Department were on special assignment conducting a surveillance of some residences in the 1600 block of Franklin Street, Denver, from a car stationed in an alley. The residences were under surveillance because of a report that they were distribution centers for heroin.
Sometime during the afternoon Cinquanta observed a white Chrysler pull up to the rear door of one of the residences. The defendant and the driver of the car entered the residence, and after approximately three minutes, the two men left the house and drove off.
Cinquanta did not see defendant carry anything out of the house. However, Cinquanta, using binoculars, recognized both defendant and his companion and knew both men to be parolees. He also knew that it was a violation of the terms of parole for parolees to associate with one another.
The officers followed the Chrysler down the alley and onto Seventeenth Avenue. Cinquanta then summoned a marked patrol car to stop the Chrysler. In summary, Cinquanta testified at the suppression hearing that the stop was made for two reasons: (1) While he recognized defendant and the driver as parolees through the binoculars, he always verifies the identity of a parolee in conjunction with any parole vioaltion for purposes of a 'contact report' prepared for the parole department; and (2) the occupants had been inside one of the residences under surveillance, which he described as a 'known distribution house for the sale of heroin.'
Once the Chrysler had been stopped, Cinquanta approached the passenger side where defendant was seated. He identified himself as a police officer, and thereupon observed a red balloon lying on the floorboard by defendant's feet, which was 'wrapped' in a manner known to him as being a packaging form for narcotics. Upon observing the balloon, Cinquanta opened the car door, removed the balloon, and then directed defendant to exit from the car. Cinquanta discovered an unknown substance in the balloon which he suspected to be heroin and thereupon placed defendant under arrest. A subsequent search of defendant's person revealed a large piece of foil containing eight additional balloons which Cinquanta seized.
Defendant's parole officer testified to the effect that if he observed a parolee with another parolee in a car in midafternoon under circumstances which were not suspicious and detected no other parole violations, the parolee would probably be given a warning only. According to the parole officer, the Denver police department is notified of the names of all persons on parole. The parole department is advised by 'contact cards' prepared by the police department of any contacts between the parolee and police officers.
On the basis of the foregoing evidence the trial court denied defendant's motion to suppress. The trial court found, Inter alia, that, under the guidelines set forth in Stone v. People, 174 Colo. 504, 485 P.2d 495, Cinquanta's initial contact with defendant was proper as an investigatory stop and detention in order to determine his connection, if any, with the residence under surveillance. Relying on People v. Stevens, 183 Colo. 399, 517 P.2d 1336, the trial court also found that Cinquanta had reasonable grounds to detain defendant in order to contact him relative to the parole violation. The trial court further concluded that, as a result of seeing the red balloon, the circumstances, and the other information available to Cinquanta at that time, Cinquanta had probable cause to arrest defendant.
In seeking reversal, defendant contends that since a parole violation does not constitute a crime, the officers had no basis to stop the vehicle in which he was riding. He therefore concludes that the balloons were seized from him incident to an unlawful arrest and in violation of Article II, Section 7 of the Colorado Constitution and the Fourth Amendment to the United States Constitution. Since we agree with the trial court on the justification for the stop based upon the parole violation, we need discuss only that issue.
While we recognize that a police officer is not empowered to supervise parolees and that the parolee is not deprived of all safeguards provided in the Fourth Amendment, See People v. Anderson, Colo., 536 P.2d 302, the defendant's Fourth Amendment rights were not violated under the circumstances of this case. Upon his release from confinement, a parolee remains in technical custody of the state, See s 17--1--206, C.R.S.1973; People v. Salvador, Colo., 539 P.2d 1273 (announced July 28, 1975), and a police officer would be remiss if he did not report violations of the terms of parole to the appropriate parole officer. Conversely, it would be eminently unfair to the parolee for a police officer to make such a report concerning a particular parolee unless the police officer was certain of his identity. Hence, since it is proper in this jurisdiction generally to stop and question a citizen pursuant to a 'field investigation' based on circumstances which do not constitute probable cause for arrest, See People v. Stevens, supra, a parolee's Fourth Amendment rights are not violated when it clearly appears to a police officer than an individual known to him to be on parole is violating the terms of that parole by associating with another parolee and the officer seeks to verify the subject's identity.
In oral argument defendant also asserted that even if there were a legal basis for the initial stop, the seizure of the red balloon was improper under the plain view doctrine because Cinquanta could not identify its contents from visual observation. He therefore reasons that merely seeing the balloon did not establish the requisite probable cause to justify defendant's arrest. This contention is without merit.
We have held above that it was constitutionally permissible for Cinquanta to stop defendant. There is no dispute that the balloon was in plain view. Further, under circumstances similar to the case at bar, our Supreme Court held, in effect, in People v. Montoya, Colo., 524 P.2d 76, that where, in the course of a lawful detention, an officer observed in plain view balloons which he knew to be a form of packaging for heroin, he could legitimately seize such items. Thus, the seizure here was proper, and the subsequent arrest and search of defendant's person premised upon the officer's reasonable belief that the first balloon contained heroin were also proper. See People v. Shriver, Colo., 528 P.2d 242; People v. Baird, 172 Colo. 112, 470 P.2d 20.
II. Jury Instructions
Relying on People v. Rivera, Colo., 525 P.2d 431, defendant contends that the trial court erred in failing to instruct the jury on the offense of disorderly person as a lesser non-included offense of the crime charged. In support thereof he points to evidence tending to show that the defendant was under the influence of narcotics at the time he was arrested. We agree with the trial court's ruling.
The defendant was charged with violation of s 12--22--302, C.R.S.1973, which prohibits possession of narcotic drugs. Insofar as pertinent here, pursuant to s 12--22--322(5), C.R.S.1973, a disorderly person is one 'who . . . shall use narcotic drugs, or shall be under the influence of narcotic drugs . . ..'
We agree that, under the circumstances of this case, being under the influence of narcotic drugs is a lesser non-included offense of possession of narcotic drugs under the test set forth in Rivera. See People v. McKenzie, 169 Colo. 521, 458 P.2d 232. However, we construe Rivera to mean that the trial court should not instruct the jury on a lesser non-included offense unless the jury's finding of guilt as to the lesser non-included offense would preclude a finding of guilt on the greater offense. Only in such circumstances could a lesser non-included offense operate to serve Any defense theory purpose relative to the principal charge. Conversely, where, as here, the evidence of the principal charge is not disputed and the evidence of the lesser non-included offense does not preclude a finding of defendant's guilt on the principal charge, an instruction on the lesser non-included offense should not be given.
Judgment affirmed.
SMITH and KELLY, JJ., concur.