Opinion
No. 22530.
Decided September 16, 1958.
Defendant was convicted of the unlawful possession of heroin and brought error.
Affirmed.
1. CRIMINAL LAW — Heroin — Unlawful Possession — Evidence — Admissible — Exhibits — Foundation — Chain — Propriety. In prosecution for unlawful possession of heroin, reviewing court is of the view that there is no merit to defendant's contention that trial court erred in admitting into evidence certain exhibits because chain of evidence had not been established and no sufficient foundation had been laid for their admission; actually, there is no missing link in the "chain of evidence" identifying the exhibits as being those items taken into possession by the police at the time of defendant's arrest.
2. Heroin — Unlawful Possession — Officer — Expert Opinion — Chemical Content — Exhibits — Foundation — Propriety. In prosecution for unlawful possession of heroin, testifying officer was qualified by the evidence to give an expert opinion as to the chemical content of certain exhibits, and in all other essentials an adequate "foundation" was laid for such opinion.
3. SEARCHES AND SEIZURES — Officers — Custody — Violation of Parole — Shaving Kit — Examination — Propriety. Where police officers, assigned to take defendant into custody for violation of parole, notified defendant as he deplaned that he was under arrest, whereupon defendant threw away his shaving kit which bystander picked up and handed to officers who took kit to police headquarters where kit was examined and heroin was discovered, no search warrant having been issued authorizing examination of contents of kit, held, under the circumstances, examination of contents of shaving kit by officers did not amount to unreasonable search and seizure.
4. Brown Bag — Abandon — Airport — Loss of Standing — Objection. In prosecution for unlawful possession of heroin, where defendant abandoned brown bag that he had discarded while deplaning at airport, held, under the circumstances, defendant lost his standing to object to a search of the contents of the bag.
5. COURTS — United States — Miranda Decision — Retrospective — Negative — Warnings — Inapplicable — Evidence. The United States Supreme Court case of Miranda v. Arizona does not operate retrospectively; and since instant action was tried before that decision was announced, the warnings required by the decision did not apply to exclude evidence.
6. CRIMINAL LAW — Heroin — Unlawful Possession — Spontaneous Remark — Admission — Evidence — Proper. In prosecution for unlawful possession of heroin, where defendant, on way to police station, asked police officers, "Who snitched on me?", held, since such remark by defendant was a spontaneous one and not elicited by any questioning by the police, admission of remark in evidence was not error.
Error to the District Court of the City and County of Denver, Honorable Sherman G. Finesilver, Judge.
Leland S. Huttner, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, Paul D. Rubner, Assistant, for defendant in error.
Plaintiff in error, hereinafter referred to as Smith, was convicted of the crime of unlawfully and feloniously having in his possession a narcotic drug, namely, heroin. He was sentenced to a term of not less than three nor more than eight years in the state penitentiary.
In his motion for a new trial he asserted three grounds, to wit:
"1. The Court's denial of defendant's motion to suppress evidence was error.
"2. The Court's admission into evidence of Exhibits A-3, A-4, A-5, A-6, A-7, A-8 and A-11 was error because the chain of evidence had not been established and no sufficient foundation was laid for their admission.
"3. The Court's permission for Captain Moomaw to give an opinion as to the chemical content of certain of the above mentioned exhibits was error since no sufficient foundation was laid for such an opinion to be given."
[1,2] There is no merit in points numbered 2 and 3. It is sufficient to say that there is no missing link in the "chain of evidence" identifying the exhibits as being those items take into possession by the police at the time of Smith's arrest. Captain Moomaw was qualified by the evidence to give an expert opinion, and in all other essentials an adequate "foundation" was laid for his opinion.
Counsel for Smith filed a motion for suppression of evidence allegedly illegally seized at the time of Smith's arrest. The motion was denied. The record does not disclose what evidence was offered in support of the motion to suppress. Accordingly, we assume that the trial court denied the motion for the reason that under the factual situation which was developed at the trial to a jury, no illegal search or seizure of tangible evidence was involved.
Smith was placed under arrest when he arrived at the Denver airport as he deplaned from a flight from Los Angeles, California. The two officers assigned to the task of taking him into custody were acting at the request of the Parole Board of Colorado who wanted Smith for a violation of the terms of a previously granted parole. The arresting officers saw Smith leave the airplane carrying a suitcase and a small brown shaving kit. When they notified him that he was under arrest he threw the shaving kit and it bounced off the ceiling of the enclosed area near the gate through which he entered, and landed about twelve feet from the spot where he threw it. He tried to break away but was subdued. A bystander picked up the shaving kit and handed it to the officers. It contained a number of packs containing heroin. The officers took the shaving kit and contents to police headquarters where the kit was examined and the heroin was discovered and taken to the technician for analysis. No search warrant was issued authorizing examination of the contents of the shaving kit. Under the foregoing circumstances the question for decision is whether the conduct of the arresting officers in examining the contents of the shaving kit amounted to unreasonable search and seizure. The question is answered in the negative.
It may be fairly said that the defendant abandoned the brown bag that he discarded and so has lost his standing to object to a search of the contents of the bag. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; Trujillo v. United States, 294 F.2d 583, (10th Cir.); Haerr v. United States, 240 F.2d 533, (5th Cir.); Lee v. United States, 221 F.2d 29, (D.C. Cir.). When all dominion and control over the bag was surrendered by this act of the defendant his capacity to object to search and seizure was at an end. See also, Garcia v. People, 160 Colo. 220, 416 P.2d 373.
[5, 6] On the way to the police station Smith asked the police officers, "Who snitched on me?". This statement was shown in evidence and it is argued that it should not have been admitted because there was no showing that Smith was given any warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. That decision does not operate retrospectively and the instant action was tried before that decision was announced. The statement objected to was a spontaneous remark of Smith's and was not elicited by any questioning by police. There was no error in receiving the statement in evidence.
The judgment is affirmed.
MR. JUSTICE McWILLIAMS, MR. JUSTICE HODGES and MR. JUSTICE GROVES concur.