Summary
In People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (banc 1973) the defendant was "detained" following her arrival at a house known to be frequented by heroin users while a search warrant for the premises was in the process of being executed.
Summary of this case from State v. GradyOpinion
No. 25412
Decided November 26, 1973. Rehearing denied December 17, 1973.
Defendant was convicted of possession of narcotic drugs and appealed.
Affirmed
1. ARREST — Front Porch — Detention — Warrant — Search for Heroin — Probable Cause — Negative. Where officers were executing a search warrant for a particular house — the supporting affidavit stating that heroin was being used and sold on the premises — and where defendant, who had come onto the front porch while the officers were still on the premises, opened the screen door and was confronted by police sergeant, who, as defendant turned and started to leave, detained her and requested her to enter the house, held, the circumstances giving rise to the initial detention on the front porch did not constitute probable cause justifying her arrest.
2. Less Than Probable Cause — Temporarily Detain — Limited Purposes — Proper Police Procedure. There is an area of proper police procedure in which an officer having less than probable cause to arrest may temporarily detain an individual for limited purposes and not violate that person's Fourth Amendment rights.
3. Detain for Questioning — Reasonable Suspicion — Reasonable Purpose — — Reasonable Detention. In order lawfully to detain an individual for questioning: (1) the officer must have a reasonable suspicion that the individual has committed or is about to commit a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose.
4. Detention — Observation — Symptoms — Narcotics Withdrawal — Needle Marks — Probable Cause. Where defendant arrived at house known to be frequented by heroin users and her arrival took place during time police search was in progress, held, under the circumstances, limited detention of defendant to ascertain her identity and reasons for being at the house was proper; and officer, who observed during initial detention, what he knew to be symptoms of narcotics withdrawal and that defendant had fresh needle marks on her arms, had probable cause to arrest defendant for narcotics use.
Appeal from the District Court of the City and County of Denver, Honorable John R. Brooks, Jr., Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, David A. Sorenson, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, T. Michael Dutton, Deputy, Paul A. Baca, for defendant-appellant.
This is an appeal from a conviction of possession of narcotic drugs contrary to C.R.S. 1963, 48-5-2, by the defendant, Bertha Marquez. The defendant alleges error in the trial court's denial of her motion to suppress the critical evidence. We find no error in the court's ruling and affirm.
The salient facts surrounding the search and seizure are as follows: In the evening of December 16, 1970, five officers of the Denver Police Department were executing a search warrant for a house at 2453 Stout Street in Denver. The supporting affidavit stated that heroin was being used and sold on the premises.
During the search the officers found several balloons containing heroin debris, various narcotics paraphernalia including hypodermic needles, syringes and cotton sponges with fresh blood on them. While the officers were executing the search warrant, six other persons came to the house and were arrested. Two of the six were found to have heroin in their possession.
While the officers were still on the premises, the defendant came onto the front porch of the house. Sergeant Metros was stationed at the front door, and as defendant opened the screen door, Metros opened the front door and identified himself to the defendant. The defendant turned and started to leave, but was detained and requested to enter the house. Although the trial court concluded that this was an "arrest," we hold otherwise. Metros then observed that she was perspiring heavily, her skin was clammy; and she was scratching and yawning.
It appears that Metros then asked defendant to remove her coat and observed fresh needlemarks on her arms. At that point he placed her under arrest for illegal use of narcotics. He then searched her purse and discovered three capsules containing heroin which formed the basis for defendant's conviction.
[1] The defendant asserts that there was no probable cause to arrest her; therefore, the search incident thereto was invalid. We agree that the circumstances giving rise to the initial detention on the front porch did not constitute probable cause. People v. Noreen, 181 Colo. 327, 509 P.2d 313 (1973).
[2] However, as we said in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), there is an area of proper police procedure in which an officer having less than probable cause to arrest may temporarily detain an individual for limited purposes and not violate that person's Fourth Amendment rights. See People v. Gurule, 175 Colo. 512, 488 P.2d 889 (1971); People v. Avalos, 179 Colo. 88, 498 P.2d 1141 (1972); See also La Fave, "Street Encounters" and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich. L. Rev. 39 (1968).
[3] In Stone we set out a three-pronged test as to the reasonableness of police detention for questioning:
"In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed or is about to commit a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose." 174 Colo. 504, 509.
Here defendant's arrival at a place known to be frequented by heroin users, while not amounting to probable cause for an arrest, gives rise to a reasonable suspicion that justifies a limited detention to ascertain her identity and reasons for being at such place. Given the fact that a police search was in progress, it was reasonable to ask the defendant to step into the house. The initial detention here comes within the parameters of Stone. See also United States v. Self, 410 F.2d 984 (10th Cir. 1969); United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970).
[4] During this initial Stone detention, Officer Metros observed what he knew to be symptoms of narcotics withdrawal. He also asked defendant to remove her coat and observed fresh needle marks on her arms. At this point he clearly had probable cause to arrest defendant for narcotics use. Stone v. People, supra. See also People v. Collman, 172 Colo. 238, 471 P.2d 421 (1970). Thus, the arrest and the search incident thereto were supported by probable cause and were valid.
The judgment is affirmed.
MR. JUSTICE DAY and MR. JUSTICE ERICKSON dissent.