Opinion
No. 78-188
Decided February 8, 1979.
Convicted of possession of heroin and possession of cocaine, defendant appealed on basis that his motion to suppress evidence was improperly denied.
Affirmed
1. CRIMINAL LAW — Search Warrant — Police Officers — No Duty — Question — Validity — May Rely Thereon — Justify Trespass. It is not the duty of police officers to question the validity of the judicial act of issuing a warrant and they may rely on a warrant to justify what otherwise might be a trespass.
2. Officer — Ostensibly Valid Search Warrant — Residence — Encountered Defendant — Driveway — Circumstances Sufficient — Request Identification — Resulting Evidence — Properly Not Suppressed. Where officers had an ostensibly valid warrant to search a private residence, and they encountered defendant in the driveway leading to that residence, the circumstances were sufficient to justify the officers' limited intrusion of asking defendant to identify himself; thus, evidence obtained as an eventual result of that request for identification was properly not suppressed.
Appeal from the District Court of the County of Boulder, Honorable Rex H. Scott, Judge.
Barnard Ferguson, Dennis L. Blewitt, for defendant-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
Defendant was charged with possession of heroin, possession of cocaine, and carrying a concealed weapon. After a jury trial, he was convicted of the drug charges and acquitted of the weapon charge. He appeals the convictions, contending that his motion to suppress the drugs was improperly denied. We affirm.
Based on information supplied by an anonymous informant to a Boulder County detective, a warrant was issued to search a particular private house in Ward for heroin. Four officers, while approaching the house to execute the warrant, encountered defendant working on a truck in the driveway, approximately fifty yards from the house. During cross-examination of the officers at the suppression hearing, defense counsel educed specific testimony that the vehicle was in the driveway which led to the house.
Defendant was informed by the officers that they had a warrant to search the house, and he was asked to produce some identification. As he lifted his arm, apparently to reach for his wallet, his jacket was raised and the officers saw a pistol hanging from his belt. The gun was removed by the officers, and defendant was taken inside the house where, during a search of his person, the narcotics were found in the pockets of his jacket.
The sole issue is whether the officers acted within the law in asking defendant for some identification. We hold that they did. Therefore, the seizure of the gun was proper because it was in plain view. See People v. Gurule, 196 Colo. 562, 593 P.2d 319, (1978) and cases cited therein. Once the weapon was discovered, the officers had probable cause to arrest defendant for carrying a concealed weapon, see People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973); People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975), and the warrantless arrest was proper because the crime was committed in the officers' presence. See People v. Bloom, 195 Colo. 246, 577 P.2d 288 (1978); § 16-3-102(1)(b), C.R.S. 1973. Therefore, the narcotics were found during a proper search incident to defendant's arrest. See, e.g., People v. Vaughns, supra; People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971); People v. Derrera, 40 Colo. App. 86, 570 P.2d 558 (1977).
Defendant argues that the search warrant was invalid because the affidavit upon which it was based failed to satisfy the reliability prong of the Aguilar-Spinelli test. Thus, defendant reasons, the officers were trespassing when they encountered him and they had no right to ask him for identification. The People answer that defendant does not have standing to contest the sufficiency of the affidavit. We address neither the sufficiency of the affidavit, nor defendant's standing to contest it, because, even if we assume, arguendo, that defendant had standing and that the warrant was invalid, the officers did not act improperly in asking defendant to identify himself.
[1] Searches and seizures which are made pursuant to warrants are preferred. People v. Maes, 176 Colo. 430, 491 P.2d 59 (1971); People v. Whisenhunt, 173 Colo. 109, 476 P.2d 997 (1970). See United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965). Only where police act without a warrant is that action per se unreasonable with the burden on the prosecution to justify the intrusion. See People v. Vaughns, supra; People v. Valdez, 173 Colo. 410, 480 P.2d 574 (1971). Furthermore, there is a presumption of validity which supports the official acts of public officials, City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974), and the decision by a judge or magistrate to issue a warrant ought not to be interfered with lightly. See, e.g., United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977), cert. denied, 434 U.S. 1047, 98 S. Ct. 893, 54 L.Ed.2d 798 (1978); United States v. Sevier, 539 F.2d 599 (6th Cir. 1976). See also United States v. Ventresca, supra. It follows that it is not the duty of police officers to question the validity of the judicial act of issuing a warrant and that they may rely on a warrant to justify what might otherwise be a trespass.
[2] Whether or not police conduct "is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case." Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972). Here, the combination of the existence of the ostensibly valid search warrant, and defendant's presence in the driveway which led to the private house described in the warrant, was sufficient to justify the officers' limited intrusion of asking defendant to identify himself. See People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971). The intrusion was brief and involved no forcible seizure. Furthermore, there is no indication in the record of any harassment or intimidation. Cf. People v. De Bour, 40 N.Y.2d 210, 352 N.E.2d 562 (1976). In these circumstances, we conclude that the officers' conduct was not unreasonable.
Judgment affirmed.
JUDGE COYTE and JUDGE SMITH concur.