Opinion
No. 26879
Decided November 10, 1975.
Interlocutory appeal by the People from a ruling of the district court granting defendant's motion to suppress evidence in connection with a marijuana possession case.
Ruling Reversed
1. SEARCHES AND SEIZURES — Undercover Agent — Posing — Unlawful Transaction — Gains Entry. There is no unreasonable search when an undercover agent, posing as a willing participant in an unlawful transaction, gains entry by invitation and observes or is handed contraband.
2. Decoy — Undercover Agent — Judicial Sanction. The decoy or undercover agent is one weapon in the police arsenal which has received judicial sanction.
3. ARREST — Warrant — Separate Prior Offense — Agent — Undercover Activity. The fact that an agent possesses and is intent on serving an arrest warrant for a separate prior offense has no effect on what is otherwise a legitimate form of undercover activity.
4. Warrant — Six-Day Delay — Not Unreasonable. A six-day delay in executing an arrest warrant is not unreasonable.
5. Warrant — Executed — Earliest Opportunity — Requirement — Negative. There are no constitutional requirements dictating that an arrest warrant be executed at the earliest opportunity.
6. Six-Day Delay — Service of Warrant — Lack of Prejudice — Finding of Trial Court — Reversible Error. Where record reflects that six-day delay in service of arrest warrant upon defendant was caused by perceived need to protect the identity of an undercover agent in a collateral investigation, that such delay was not intended to prejudice defendant, nor was defendant in fact prejudiced by the six-day postponement of her arrest, held, under these circumstances, trial court's finding — that such arrest constituted an abuse of process and an invasion of defendant's Fourth Amendment right — was reversible error.
7. Six-Day Delay — Service of Warrant — Additional Hearing — Issue of Prejudice — Unnecessary. Where record reflects a six-day delay in service of arrest warrant, there was no need for an additional evidentiary hearing to explore the issue of whether defendant was prejudiced by such delay.
Interlocutory Appeal from the District Court of Larimer County, Honorable Conrad L. Ball, Judge.
Stuart A. VanMeveren, District Attorney, Loren B. Schall, Assistant, for plaintiff-appellant.
Frey Huisjen, John P. Frey, Stephen J. Roy, for defendant-appellee.
The People brought this interlocutory appeal from a ruling of the district court granting defendant's motion to suppress evidence in connection with a marijuana possession case. We reverse.
Prior to the criminal case involved herein, defendant was charged with an offense in a criminal action which is separate and distinct from the within action.
Nine days later, a warrant was issued for defendant's arrest on the prior transaction. Six days after that an undercover agent (attired in street clothes) went to defendant's residence with the dual purpose of attempting to purchase additional contraband and to execute the arrest warrant.
According to testimony at the suppression hearing, the agent was personally acquainted with defendant and had talked with her on prior occasions concerning the possible purchase of drugs. Defendant did not know that her "acquaintance" was a police officer. The agent knocked on the door and was invited inside by defendant, at which time he sat down and stated: "Gee, I meant to bring something to smoke." The defendant then went upstairs and brought down some marijuana, which she handed to the agent. At this point the arrest warrant for the prior offense was executed and, simultaneously, defendant was placed under arrest for investigation of the alleged present offense. Thereafter a search warrant was issued and additional quantities of suspected marijuana were seized. Defendant was then charged with possession of a narcotic drug, in an amount in excess of one-half ounce.
House Bill No. 1027, which became effective in July 1975, reclassified marijuana as a dangerous drug.
The motion to suppress was granted on the basis of the trial judge's belief that executing the arrest warrant after a six-day delay and with the concomitant purpose of gaining additional evidence of illegal activity constituted an abuse of process and an invasion of defendant's Fourth Amendment rights. We disagree.
[1,2] The defendant invited the agent into her home. The agent in no way relied on the arrest warrant or the color of his office in order to gain entry. It is well established that there is no unreasonable search when an undercover agent, posing as a willing participant in an unlawful transaction, gains entry by invitation and observes or is handed contraband. As we stated in Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969):
" . . . The decoy or undercover agent is one weapon in the police 'arsenal,' for example, which has received judicial sanction. So long as the agent's conduct falls short of actual instigation of a crime, which raises the defense of entrapment, the Court has refused to set aside convictions because evidence was obtained by means of undercover work. . . ."
[3] The fact that the agent in this case possessed and was intent on serving an arrest warrant for a separate prior offense has no effect on what is otherwise a legitimate form of undercover activity.
[4,5] We also reject the trial court's view that the six-day delay in executing the arrest warrant was unreasonable. Crim. P. 4 contains no limitations regarding the time within which an arrest warrant must be executed. (Crim. P. 41(d)(5)(V), by comparison, requires that a search warrant be executed no later than ten days after it is issued.) Furthermore, there are no constitutional requirements dictating that an arrest warrant be executed at the earliest opportunity. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975).
[6] The record in this case contains no evidence that the delay was intended to prejudice the defendant — or that defendant was, in fact, prejudiced by the six-day postponement of her arrest. On the other hand, uncontroverted evidence indicates that the delay was caused by the perceived need to protect the identity of an undercover agent in a collateral investigation.
[7] Since this case involves a six day rather than a six month delay (as in Coca, supra) there is no need for an additional evidentiary hearing to explore the issue of prejudice as we had determined necessary in Coca.
Accordingly, the ruling is reversed.