Volume 174 — Colorado Reports

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Lack of Warrant — Justifiable — Valid Arrest.</italic> A search not conducted pursuant to a valid search warrant is justifiable only if incident to a valid arrest. 2. <bold>ARREST</bold> — <italic>Mere Suspicion — Unsupportable.</italic> An arrest with or without a warrant must stand on firmer ground than mere suspicion. 3. <italic>Probable Cause — Existence.</italic> Probable cause exists where the facts and circumstances within the arresting officers' knowledge are sufficient<page_number>Page 72</page_number> in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. 4. <italic>Long-haired Individual — Young Girl — Open Knapsack — Back Seat of</italic><italic>Car — Plastic Bags — Sack Closed — Probable Cause.</italic> Where arresting officers had the following facts available to them at time of appellant's arrest, namely: that informant reported he had seen long-haired individual and young girl bending over open knapsack in back seat of car; that knapsack contained a number of plastic bags whose contents could not be seen; that as informant approached, the girl exclaimed "watch it" and the sack was closed, <italic>held</italic>, under the circumstances, arrest of appellant was based upon probable cause; and taken together, circumstances preceding arrest were sufficient to warrant conclusion by reasonably prudent police officer that crime had been or was being committed. 5. <bold>COURTS</bold> — <italic>United States Supreme Court — Probable Cause — Automobile —</italic><italic>Search — Articles — Seize — Chambers v. Maroney.</italic> Under United States Supreme Court case of <italic>Chambers v. Maroney</italic> an automobile may be searched without a warrant provided that there is probable cause to believe that the automobile contains articles that officers are entitled to seize.

1. <bold>ARREST</bold> — <italic>Without Warrant — State Officers — State Offense — Lawfulness</italic><italic>— State Law.</italic> The lawfulness of an arrest without a warrant by state officers for a state offense must be determined by state law. 2. <italic>Officer — Offense — Commission — Reasonable Ground — Belief —</italic><italic>Person — Statute.</italic> Under C.R.S. 1963, 39-2-20, an arrest may be made "by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it." 3. <bold>WORDS AND PHRASES</bold> — <italic>Probable Cause — Reasonable Ground — Same Meaning.</italic> The term "probable cause" is essentially equivalent to the statutory phrase "reasonable ground" and has been deemed to have substantially the same meaning. 4. <bold>ARREST</bold> — <italic>Fact — Cautious Officer — Belief — Offense — Commission —</italic><italic>Court — Determination.</italic> A court must determine whether the facts available to a reasonably cautious officer at the moment of arrest would warrant his belief that an offense has been or is being committed. 5. <bold>SEARCHES AND SEIZURES</bold> — <italic>Lack of Evidence — Offense — Reasonable</italic><italic>Grounds — Negative — Informants — Driveway — Residence — Marijuana — Lack</italic><italic>of Basis — Exploratory — Improper.</italic> Where there was no evidence that a criminal offense had actually been committed and record fails to disclose facts which would give police officers reasonable grounds to believe that defendants had committed a criminal offense of any kind, and no claim is made that defendants had been mentioned by any of so-called confidential, reliable informants, and surveillance and investigation had been under way<page_number>Page 223</page_number> for about two weeks and officers were not even aware of defendants' existence, and only facts which supported officers' suspicion that defendants were engaged in criminal activity arose out of defendants' conduct in driving car into driveway of residence where expected shipment of marijuana was somehow to be delivered, <italic>held</italic>, these circumstances, coupled with admission that police had no basis in fact to search defendants, make it clear that search was exploratory only and cannot be sustained. 6. <bold>COURTS</bold> — <italic>United States Supreme Court — Terry v. Ohio — Stop-and-Frisk</italic><italic>Doctrine — Car — Driveway — Residence — Surveillance — Marijuana — Search —</italic><italic>Unreasonable.</italic> Even though police officers would have been derelict in their duty had they not stopped defendants' car when it turned into driveway of residence — which was under surveillance and where expected shipment of marijuana was to be delivered — to determine whether occupant of residence or some other subject of the investigation might be in the vehicle and to ascertain why defendants were on the premises, nevertheless, search of defendants after it was determined that none of them were known to be suspect of investigation was not reasonable conduct within the "stop-and-frisk" doctrine articulated by the United States Supreme Court in<italic>Terry v. Ohio.</italic> 7. <italic>Without Probable Cause — Limitations — Reason to Confront — Armed —</italic><italic>Frisk.</italic> The authority to make a search without probable cause is limited in the following manner: There must be (a) some reason for the officer to confront the citizen in the first place, (b) something in the circumstances, including the citizen's reaction to the confrontation, must give the officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others, and (c) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general. 8. <bold>ARREST</bold> — <italic>Right — Stop and Frisk — Limited Search for Weapons.</italic> The right to "stop and frisk" is not an open invitation to conduct an unlimited search incident to arrest or a means to effect a search to provide grounds for an arrest; rather, it is a right to conduct a limited search for weapons.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Warrantless Arrest and Search — Burden of Proof —</italic><italic>Probable Cause — State.</italic> The burden of proving probable cause in justification of a warrantless arrest and search is upon the State. 2. <bold>ARREST</bold> — <italic>Officer — Alerted — Citizen Informant — Robbery — Speeding Van</italic><italic>— Probable Cause — State — Finding — Warrantless — Descriptions —</italic><italic>Defendants — Van — Similar.</italic> Where police officer, after being initially alerted by citizen informant as to robbery and defendants' speeding van, stopped van to make threshold investigation, and thereafter received information from his fellow officers that a robbery had in fact taken place, <italic>held</italic>, under the circumstances, officer had probable cause to make warrantless arrests of defendants and to search them and their van; and trial court was therefore correct in finding that State had established probable cause which justified such warrantless arrests and searches in the instant case, especially, where defendants matched robbers' descriptions and van used as getaway vehicle was similar to defendants' vehicle. 3. <italic>Warrantless — Officer — Crime — Belief — Person — Commission —</italic><italic>Statute.</italic> Under C.R.S. 1963, 39-2-20, an officer is permitted to make a warrantless arrest when a criminal offense has in fact been committed and the officer has reasonable grounds for believing the person to be arrested has committed the offense. 4. <bold>WORDS AND PHRASES</bold> — <italic>Reasonable Grounds — Probable Cause — Equivalent.</italic><page_number>Page 295</page_number> The terms "reasonable grounds" and "probable cause" are substantially the equivalent. 5. <bold>ARREST</bold> — <italic>Warrantless — Probable Cause — Existence — Determination —</italic><italic>Hearsay — Rumor or Suspicion — Insufficient.</italic> Probable cause to make warrantless arrest is held to exist where the facts and circumstances within the officer's knowledge and of which he has reasonable trustworthy information are sufficient to cause a reasonably cautious police officer to believe that an offense has been committed. 6. <italic>Warrantless — Evidence — Hearsay — Proper — Rumor or Suspicion —</italic><italic>Improper.</italic> Reasonably trustworthy information sufficient to give police officer probable cause to make warrantless arrest may be based upon hearsay and need not be evidence sufficiently competent for admission at the guilt finding process; however, the information relied upon must be more than rumor or suspicion, although it need not be of that quality and quantity necessary to satisfy beyond a reasonable doubt. 7. <italic>Warrantless — Probable Cause — Reasonably Trustworthy Information —</italic><italic>Sufficiency — Determination — Officer — Belief — Commission.</italic> The reasonably trustworthy information as it relates to probable cause to make a warrantless arrest is sufficient if it warrants a reasonably cautious and prudent police officer in believing, in light of his training and experience, that an offense has been committed and that the person arrested probably committed it. 8. <italic>Officer — Alerted — Citizen Informant — Robbery — Speeding Van —</italic><italic>Threshold Investigation — Rely — Information — Fellow Officers — Commission</italic><italic>of Robbery.</italic> Where police officer was initially alerted by citizen informant as to robbery and speeding van, <italic>held</italic>, under the circumstances he had a lawful right to stop it and make a threshold investigation, and thereafter to rely on information relayed to him by his fellow law enforcement officers that a robbery had in fact been committed. 9. <italic>Officer — Reliability — Informer — Unnecessary — Communication —</italic><italic>Brother Officer — Police Department — Probable Cause.</italic> It is not necessary for the arresting officer to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause, provided he acts upon direction or as a result of communication with a brother officer or that of another police department and provided the<page_number>Page 296</page_number> police as a whole are in possession of information sufficient to constitute probable cause to make the arrest.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Warrantless — Justify — People — Proof —</italic><italic>Consent — Lack of Coercion — Freely and Intelligently.</italic> In order to justify a warrantless search, the People must prove that consent was given; that there was no duress or coercion, express or implied; and that consent was unequivocal and specific and freely and intelligently given. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Courts — Rights — Presumption Against Waiver —</italic><italic>Arrest.</italic> Courts indulge every reasonable presumption against the waiver of fundamental constitutional rights, and especially, where a defendant is under arrest. 3. <bold>SEARCHES AND SEIZURES</bold> — <italic>Determination — Voluntariness of Consent —</italic><italic>Totality of Circumstances — Waiver.</italic> The determination of the voluntariness of a consent to search is measured by the totality of the circumstances surrounding the purported waiver; and this is true regardless of the basis for the challenge. 4. <italic>Consent of Search — Freely and Intelligently — Automobile — Rape —</italic><italic>Finding — Support.</italic> Where certain evidentiary items were recovered by police from an automobile owned by defendant's father, which had been used by defendant on the night of the alleged commission of the rape with which defendant is charged, and defendant now contends that when officer advised father and defendant that a search warrant could be obtained if defendant's father did not sign the consent form and that this representation constituted coercion, <italic>held</italic>, there is no merit to the contention; the trial<page_number>Page 378</page_number> court found that the consent was "freely and intelligently" given and the record supports the finding. 5. <bold>INFANTS</bold> — <italic>Test — Validity of Search — Adult or Juvenile — Parent or</italic><italic>Guardian — Presence — Children's Code — Consent — Free and Intelligent.</italic> The same test is applicable to the validity of a search whether the consenting party is an adult or a juvenile, with one exception noted in the Children's Code, namely, a parent, guardian, or legal custodian of the child must be present, and freely and intelligently give his consent. 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Juvenile and Parent — Fifth Amendment —</italic><italic>Fourth Amendment — Rights — Waiver — Protection.</italic> Interrogating officer must accord juvenile and his parent, guardian or legal custodian full Fifth Amendment protection and comparable protection in connection with the waiver of his Fourth Amendment rights. 7. <bold>PARENT AND CHILD</bold> — <italic>Consent to Search — Automobile of Parent —</italic><italic>Understanding — Consequences — Charge — Rape — Evidence.</italic> Record reflects sufficient evidence to support finding of trial court that parent did understand the nature of the consent to search automobile used by defendant, a seventeen-year-old, on the night of the alleged commission of the rape with which defendant is charged, and its possible consequences to his child's welfare.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Rule — Mandatory — Dismissal — Delay — More Than</italic><page_number>Page 562</page_number><italic>One Year — Appeal — Defendant — Negative.</italic> The wording of Crim. P. 48(b) — requiring the trial court to dismiss the action if the trial of a defendant is delayed more than one year after the court obtains jurisdiction — is mandatory when the delay is not occasioned by the action or request of the defendant and when no interlocutory appeal has been taken. 2. <italic>Purpose — Rule — Predecessor Statute — Prevention — Dilly-dallying</italic><italic>— District Attorney — Court.</italic> The obvious purpose of both Crim. P. 48(b) and the predecessor statute which required trial within two terms of court, C.R.S. 1963, 39-7-12, is to prevent dilly-dallying on the part of the district attorney or the court in a criminal proceeding. 3. <italic>Petitioner — Objection — Vacation of Trial Dates — Continuance Not</italic><italic>Sought — No Delay Caused — Failure to Dismiss — Error.</italic> Where petitioner objected to the vacation of the trial dates that were set for times that fell within the limitations of Crim. P. 48(b), and in no instance sought a continuance or took steps of any kind that would cause the delay that extended the time of trial beyond the one-year limitation proscribed by the rule, and no action on the part of the defense counsel caused the delay,<italic>held</italic>, under the circumstances, trial court erred in failing to grant the motion to dismiss the criminal charges. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Right to Speedy Trial — Guaranteed — State and</italic><italic>Federal Constitutions.</italic> The right to a speedy trial is guaranteed to an accused by both the state and federal constitutions. 5. <italic>Speedy Trial — Meaning — Consistent — Court's Business.</italic> The constitutional right to a speedy trial means a trial consistent with the court's business. 6. <bold>CRIMINAL PROCEDURE</bold> — <italic>Lack of Congestion — Failure — Trial — One Year —</italic><italic>Mandatory Dismissal.</italic> When the record reflects no congestion in court, the failure to try the case within one year requires mandatory dismissal. 7. <bold>CRIMINAL LAW</bold> — <italic>Speedy Trial — Benefit of Accused — Protection of</italic><italic>Public.</italic> The right to a speedy trial in a criminal case is not only for the benefit of the accused, but also for the protection of the public. 8. <italic>Early Determination — Guilt — Innocent — Exonerate — Guilty —</italic><page_number>Page 563</page_number><italic>Punish.</italic> In a criminal case it is essential that an early determination of guilt be made, so that the innocent may be exonerated and the guilty punished. 9. <italic>Speedy Trial — Dissipation — Bail — Negative.</italic> The right to a speedy trial in a criminal case is not dissipated by the fact that the defendant is granted bail. 10. <italic>American Bar Association Standards — Cases — Priority — Calendar.</italic> The American Bar Association Standards Relating to Speedy Trial have suggested that criminal cases be given priority on the court's trial calendar. 11. <bold>CRIMINAL EVIDENCE</bold> — <italic>Discharge or Dismissal — Want of Due Prosecution —</italic><italic>Motion — Burden — Accused — Denial — Speedy Trial.</italic> A motion for discharge or for dismissal for want of due prosecution of a charge of crime must be sustained by the accused; he has the burden of showing that he was not afforded a speedy trial. 12. <bold>CRIMINAL PROCEDURE</bold> — <italic>Determination — Denial of Speedy Trial — Judicial</italic><italic>Question — Facts — Affirmative — Rule.</italic> Facts in instant case clearly establish that petitioner was denied a speedy trial through no fault of his own and as result of deliberate election of district attorney to postpone trial so that efforts could be made to obtain petitioner's testimony in companion and related cases; and since question of determining when an accused has been denied a speedy trial under the constitution, or under the rule, is necessarily a judicial question, reviewing court concludes that petitioner has been denied a speedy trial under the provisions of Crim. P. 48(b).