Petition for Writ of Certiorari — Strozzi v. Colorado

. ° / Supreme Court, U.S,

85-1603 FILED

N 1] MAR 27 1986

* 11 Josert F. spar, ae.

—A ERK

In the Supreme Court of the United States

OCTOBER TERM, 1985

HARRY A. STROZZI,

Petitioner,

VS.

COLORADO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF COLORADO

JOSEPH P. GENCHI

(Counsel of Record)

JosepH P. Gencut, P. C.

302 E. Elkhorn Ave. - P.O. Box 1990

Estes Park, Colorado 80517

Telephone: (303) 586-2496

Attorney for Petitioner

E. L. Mewpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

1. Is Colorado Revised Statutes, § 16-3-102 (1978

Repl.Vol.) unconstitutional in that it relieves an arresting

officer with probable cause of the necessity of obtaining

an arrest warrant even if practicable and when there

are no exigent circumstances?

2. Absent exigent circumstances, is it constitution-

ally permissible to draw a distinction between a warrant-

less arrest in a residence and a warrantless arrest in a

public place?

3. If so, is the back seat of a police car parked outside

an arrestee’s motel room a public place?

II

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...00.:00-.0-+---

OPINION BELOW o0.0..---sccccccccssssssseeeccessesssee ye eaeuaruene

JURISDICTION ocean cccecnccnnnncncocenneneneeneneeeeesnecnee-enscnncone

CONSTITUTIONAL AND STATUTORY PROVI-

Stk INVOENED eee

STATEMENT OF THE CASE. oeccssicsccccccssssssssesssssssseesee

REASONS FOR ALLOWANCE OF THE WRIT—

1. Colorado Revised Statute, § 16-3-102 (1978

Repl. Vol.) is unconstitutional in that it relieves an

arresting officer with probable cause of the neces-

sity of obtaining an arrest warrant even if practi-

cable, and when there are no exigent circumstances

2. Absent exigent circumstances, it is con-

stitutionally impermissible to draw a distinction

between a warrantless arrest in a residence and a

warrantless arrest in a public place ....... siilabih becca

3. The back seat of a police car parked out-

side of an arrestee’s motel room is not a public

TUCO anniccnccasnncnncenorcncnsonenencsnnsececcnsanensncenntosnesnimnsettctinsees

CONC TESIOIN asian acs iccncensncsnnnnvonsonsnnsiccrsenesqneeintscntmnimmasniatotns

PPG oicvccisncccacessensncincancecessctuidsnassascsssnsntiniamnniaaiaapanlian

12

22 |

TABLE OF AUTHORITIES

Cases

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63

sc ccntamnticebtgntcnoniciiinn 14, 22

People v. Burns, 200 Colo. 387, 623 P.2d 397 (Colo.

EE 2 19

People v. Glasener, 191 Colo. 114, 550 P.2d 851 (1976) 17

People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976)

zi 10,17

People v. Tangos, 190 Colo. 262, 545 P.2d 1047 ................ 17

People v. Valesquez, 641 P.2d 943 (Colo. 1982) ................ 18

United States v. Miller, 425 U.S. 454, 96 S.Ct. 820,

LS ET ee 24

United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49

ai ccna bieneiniinkaenedaibncsinetcnenitsie 22, 23

United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46

I eievicseivninicniscctenassnennasasonnisnadasoniaeied passim

Constitutional Provisions

a Saeeeeereee passim

U.S. Const. Amend. 14 ..... 5 12

Art. II, Sec. 7, Constitution of Colorado ................ 2, 13, 16, 19

Statutes

18 U.S.C. § 3061(a) (3) 15

28 U.S.C. § 2101(e) a 2

Arkansas Statutes 1977 Repl.Vol. § 43-403 .......000.00... 18

LL mr

IV

Colorado Revised Statutes 1978 Repl.Vol. ...................... 3

CRS. ¢ 00 0RE os 3, 16, 17, 18, 24

te EY} er ne Re nn 3

Ro CE COD sindiccccessestoeestrrtneremncettacncien 3

eS RD ccc inttcintcanseaisimenieseneins 3, 10, 16, 17

ee hahaha iatis th cision 17

Florida Statutes Amn. § 101.15 ...........2200.2.-cccccsccccssnccneesennoee 18

Hawaii Revised Statutes (1976 Supp.), § 803.5 -........... 18

IE A RIPE sere eterna create tangarenaponemancninn 18

Rule

Fe sacle ka RR Gs cactoecinvodccannacsmscnsabenessbabsichieaniaadesanneionconnniabsiaatiins 17

Texts

9 Halsbury’s Laws of England 459 (1909) ..............-.---+-+-+ 21

John Laurence, A History of Capital Punishment, p. 13

OIE nts tccchnciccansibitinininbiintanmcineed ene SonMSA) es ead eae 21

Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev.

i . _) eae ianaskiseclasaddialaseaaanitaabicaiiacanons 21

No.

In the Supreme Court of the United States

OCTOBER TERM, 1985

HARRY A. STROZZI,

Petitioner,

VS.

COLORADO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF COLORADO

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the Colo-

rado Court of Appeals and the denial by the Supreme

Court of Colorado of petitioner’s petition for a writ of

certiorari to the Colorado Court of Appeals on January

31, 1986.

OPINION BELOW

The opinion of the Colorado Court of Appeals is re-

printed in the Appendix hereto, infra, p. Al.

The denial of petitioner’s petition for a rehearing is

reprinted in the Appendix hereto, infra, p. A10.

The order of the Colorado Supreme Court denying

certiorari to the Colorado Court of Appeals is reprinted

in the Appendix hereto, infra, p. A1l.

JURISDICTION

The final order denying petitioner’s Petition for Writ

of Certiorari to the Colorado Court of Appeals was en-

tered on January 31, 1986, and this petition for certiorari

is filed within 60 days of the Colorado Supreme Court’s

order. The jurisdiction of the Court is invoked pursuant

to Title 28, United States Code, § 2101(e).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourth Amendment to the Constitution of the United

States:

Searches and seizures regulated. The right of the peo-

ple to be secure in their persons, houses, papers and

effects against unreasonable searches and seizures shall

not be violated; and no warrant shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

Art. II, Sec. 7, Constitution of Colorado:

Security of person and property - searches - seizures

- warrants. The people shall be secure in their per-

sons, papers, homes and effects, from unreasonable

searches and seizures; and no warrant to search any

place or seize any person or things shall issue without

describing the place to be searched, or the person or

thing to be seized, as near as may be, nor without

probable cause, supported by oath or affirmation re-

duced to writing.

3

Colorado Revised Statutes, 1978 Repl.Vol.:

16-3-102. Arrest by peace officer. (1) A peace of-

ficer may arrest a perscn when:

(a) He has a warrant commanding that such person

be arrested; or

(b) Any crime has been or is being committed by

such person in his presence; or

(c) He has probable cause to believe that an offense

was committed and has probable cause to believe that

the offense was committed by the person to be ar-

rested.

STATEMENT OF THE CASE

Petitioner is an independent trucker who was hired

and given a lease by Refrigerated Transport Company

(R.T.C.) of Modesto, California, as an owner-operator.

The company is primarily involved in the interstate trans-

portation of freight. A certain refrigerated trailer was

identified as being owner and operated by R.T.c. On

October 28, 1982, the trailer was located in Nogales, Ari-

zona, where it was loaded with shrimp to be hauled by

petitioner to Hopkins, Minnesota, to be unloaded with a

consignee or a receiver. The shrimp was owned by Ocean

Gardens Products, Inc. of California.

The load consisted of 580 cartons of frozen shrimp of

a net weight of value product of 29,000 pounds and valued

at $204,000.

On October 28, 1982, one Emmit Smallwood, who op-

erated a marina in Leadobend, Louisiana, received a tele-

phone cali from a Terry Noe asking him if he wanted

to buy some shrimp. Terry Noe, a woman, was known to

4

Smallwood. She offered to sell the shrimp for two dollars

a pound. Smallwood inquired as to whether the shrimp

were headless. A short time later, Noe called back and

said they were headless and that she had a whole truck full

or about 40,000 pounds. Smallwood said he couldn’t han-

dle that big a load, but would make some calls. He

called the Louisiana State Police and told a Captain

McCloud that he felt “something bad was fixing to

come down.”

A call was received by Smallwood from a Jim Ed-

wards, from somewhere in Arizona, who discussed the

shrimp with him, and said that they were on the road

in a hurry to get to a “certain point.” Edwards said he

would call back later that evening. In the meantime,

Smallwood was called by the state troopers and told what

to do next.

Another call came from Edwards who told Smallwood

he could have the truck, trailer, and shrimp for $50,000.

Smallwood responded by saying he would be able to get

together the sum of $45,000. Edwards told him he had

a deal.

Thereafter, a tap was placed on Smallwood’s tele-

phone by the Louisiana police and he was told to try to

get Edwards to come to Louisiana. Edwards telephoned

again and told Smallwood to wire the sum of $1,000 for

gas to a 76 truck stop somewhere in Denver. In the mean-

time, a Lloyd Stewart of the Colorado State Highway

Patrol called Smallwood and told him they could set up

a buy in Denver, and that Smallwood should try to set

it up.

Edwards called from the 76 station and was told by

Smallwood that a friend of a friend needed shrimp in

B)

Denver, and it could be handled through there. The name

of Summers was given to Edwards.

In the meantime, petitioner’s truck and trailer were

identified as passing through the port of entry station at

Trinidad, Colorado, and was given a port clearance to

Denver. Petitioner was also identified as the driver. No

effort was made to stop the truck.

Trooper Phillip Waites of the Louisiana State Police

called Stewart on the morning of October 29, and re-

quested his assistance by notifying the port of entry

people to help identify the truck. The information ob-

tained at the port of entry was called into Denver on

the afternoon of October 29, and given to Stewart.

An undercover operation was then set up by the

Colorado Bureau of Investigation and the Colorado State

Patrol to take place during the evening of October 29.

Edwards had called Smallwood from the 76 station

at Golden, Colorado, who told him to call a Lou Summers.

Stewart (Summers) called Edwards, set up the location

of the buy, and was told by Edwards that he would sell

the truck, trailer, and load of shrimp for $45,000. Ac-

cording to Edwards, petitioner and he were to split

evenly. At approximately 6:00 P.M. on October 29, two

police officers (Barden of the CBI and Stewart) drove

to a location in Jefferson County, Colorado, designated by

“Lou Summers” (Stewart) wnere the buy was to take

place. They had $25,000 in cash. Edwards was already

there with the tractor-trailer. After a preliminary dis-

cussion, Edwards agreed to take $45,000 for the tractor-

trailer and the load. Edwards told Barden and Stewart

that he got $20,000 while petitioner would get $25,000.

After examining the cargo and obtaining the manifest,

6

a packet of bills amounting to $25,000 was given to Ed-

wards by Barden who immediately retrieved it and ar-

rested Edwards.

Edwards was taken to the Jefferson County Sheriff's

office, questioned, and implicated petitioner. The agents

had documentary evidence taken from petitioner’s truck,

and it was conceded that the investigation had focused on

petitioner, and he was a prime suspect. To further estab-

lish probable cause, in addition to Edwards’ confession and

the documentary evidence, Stewart arranged for a tele-

phone call from Edwards to petitioner, who was staying

at a truck stop approximately five miles from the police

station. Stewart knew petitioner’s room number.

A recording device was placed on the telephone. It

was admitted that the purpose of the call was to get more

evidence against petitioner. The call was made, recorded,

and a transcript later prepared and received in evidence,

as well as the cassette. No effort was made to obtain an

arrest warrant.

The Wheatridge Police Department called Stewart on

the morning of October 30 and advised that petitioner had

called and wanted to report his truck as stolen. Stewart

told the officer who had called that petitioner was to be

arrested if the report was taken. He testified that he had

the information from the telephone call, all the telephone

calls, and “all the other evidence.” It was clear that

probable cause had existed from approximately 6:00 P.M.

the preceding day.

Corporal Frank L. Nowakowski of the Wheatridge

Police Department was dispatched to the Union 76 truck

stop located in Wheatridge. Colorado, to take a report from

petitioner with respect to the theft of the tractor-trailer

7

rig. He met petitioner at 8:00 A.M., did not enter peti-

tioner’s motel room, but placed him in a patrol vehicle.

This was approximately 14 hours after the tractor and

trailer had been in the possession of the police, and ap-

proximately 13 hours, or even more, after Edwards had

confessed and implicated petitioner.

Nowakowski did not advise petitioner of his Miranda

rights. He took the report in his patrol vehicle, placing

petitioner in the back seat, while he was in the front

seat. Petitioner signed the report and was arrested.'

Petitioner was interrogated by Stewart and Barden

and gave them a confession which was taped and tran-

scribed. During the trial Stewart was permitted to testify

concerning petitioner’s confession.

Petitioner testified that he had met Edwards at a

truck stop in Tucson after he left Nogales, Arizona. He

had met Edwards the week before when he arrived in

Tucson for the first time. A conversation ensued between

petitioner, Edwards, and a J. J. Canfield. They went

outside and Edwards made an offer of $25,000. Canfield

left while Edwards was making two phone calls. After

the second phone call, petitioner told Edwards that he

wanted to back out. Edwards said, ““There’s more than me

around here, you’ve got to go.” However, petitioner did

not turn the truck over to Edwards or give him the keys

so that he had no access to the truck or cargo. But he had

to go along with it. He “didn’t know how many there

was around.”

Edwards never left petitioner alone on the trip to Colo-

rado. When he made a phone call at Raton, New Mex-

ico, he directed petitioner to come with him and to stay

1. Petitioner was never charged with making a false report.

8

within three or four feet of him. He told petitioner that

if he disappeared or “anything like that,” they would

get him—they would get his family. He used the word

“kill.” Petitioner did not hear the telephone conversation,

nor did he know who Edwards was talking to. In view

of the statement made by Edwards, petitioner decided to

go on. Petitioner again told Edwards he wanted out.

Another call was made at Pueblo, Colorado. Again, peti-

tioner was directed to get out of the truck. He did not

know who Edwards called. The same thing happened at

Walsenburg, Colorado.

Edwards chose a Union 76 truck stop in Wheatridge,

Colorado. Petitioner rented a motel room, but Edwards

did not. Petitioner then called his brother and sister-in-

law in Loveland, and told his sister-in-law that he had

to talk to his brother because he was in trouble. (Ac-

cording to the evidence, no crime had been committed as

of this time, at least to petitioner’s knowledge.) They

said they would be down as fast as they could. Petition-

er’s two brothers, their wives, and his niece met him at

the truck stop. At that time, petitioner did not know

that Edwards had obtained possession of one of the two

keys petitioner kept for the truck. This knowledge did

not come to his attention until he was released from jail.

Petitioner had no knowledge of Edwards’ dealings with

“Lou Summers.”

Petitioner never did tell his family what the problem

was, and they finally left. During the visit, petitioner

started looking for the truck and Edwards. He had no

idea that Edwards had a key. The truck was gone. Peti-

tioner did not know that he had made a deal or where

he had gone. He never mentioned the name “Lou Sum-

mers.” He never mentioned any names to petitioner.

9

Petitioner did not know he was being investigated

or that the investigation had focused on him when he

received Edwards’ call. He did not know Edwards was

in custody. He was arrested by Nowakowski after he

signed the report.

He was taken to the Wheatridge Police Department

where he met Stewart and Barden. Stewart showed him

his North Carolina temporary license plates, truck registra-

tion, shipping manifest, R.T.C. contract, and all the docu-

ments he had in the truck. Stewart then said Edwards

was in custody and had made a statement. Also, they

had petitioner on tape, and showed him a cassetie. Then,

his rights were read. As petitioner put it: “I was rattled

real well.”

From the evidence it cannot be disputed that incrim-

inating statements were obtained by Stewart and Barden

subsequent to petitioner’s warrantless arrest, after they

had shown petitioner the documentation taken from his

rig, after they recorded the phone call, and after he was

told that Edwards had made a recorded statement.

Petitioner was charged with two counts of theft of

things of the value of $10,000 or more, a Class 3 felony.

A plea of not guilty was entered to both counts. The

case was tried to a jury. The jury reduced one charge

of theft to theft of a thing of value of more than $200,

but less than $10,000 (trailer), a Class 4 felony, and found

petitioner guilty as charged on the remaining count

(shrimp). Petitioner was given a suspended sentence and

placed on probation.

Petitioner appealed the judgment and conviction which

was affirmed by the Colorado Court of Appeals (Al). His

petition for a writ of certiorari to the Colorado Court of

10

Appeals was denied by the Colorado Supreme Court with-

out an opinion (All).

The unlawfulness of petitioner’s arrest was raised

throughout the trial by questioning aimed at probable

cause and the lack of exigent circumstances.

Petitioner’s motion for a new trial was not clear on

the question of the unlawfulness of his arrest, but on

appeal, it was argued that only probable cause and exigent

circumstances served to excuse the Colorado statutory

requirement relating to arrest. This was argued although

the Colorado General Assembly deleted the language “An

arrest warrant should be obtained when practicable” from

the arrest statute. C.R.S. § 16-3-102(1)(c). The peti-

tioner relied upon People v. Hoinville, 191 Colo. 357, 553

P.2d 777 (1976) as still being the applicable law. In that

case the court stated:

In order to give practical meaning to what the legis-

jature has written, we must hold sub-section (1) (c) to

require that police officers must obtain an arrest war-

rant whenever possible. (Referring to the statute

before amendment.)

Such a requirement does not impede effective police

action. It does not deprive police officers of the

right to make an arrest where exigent circumstances

exist. It expresses the view of the American people,

as enunciated as early as the discussions of the

framers of the Bill of Rights that wherever possible,

a neutral magistrate should make probable cause de-

termination. See Johnson v. United States, 333 U.S.

10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

(553 P.2d at 781)

11

The Colorado Court of Appeals considered the argu-

ment and stated:

Even though the report was taken before defendant

(petitioner) was arrested, he argues that the theft

report was the inadmissible fruit of an illegal arrest.

Defendant contends that he was illegally arrested

because the police did not have a warrant or exigent

circumstances to arrest without a warrant. Defen-

dant does not dispute that the police had probable

cause for arrest.

Defendant’s argument is based upon the arrest stat-

ute before the 1977 amendment that removed the

warrant requirement. The law no longer requires

an officer with probable cause to obtain an arrest

warrant when practicable. See section 16-3-102(1) (c),

C.R.S. (1978 Repl.Vol. 8). Thus, defendant’s claim is

without merit.

Thereafter, petitioner filed a petition for a rehearing,

which reiterated his argument regarding Hoinville, and

pointed out in explicit language that if the amended stat-

ute is upheld, it collides head-on with the Constitution

of the United States and the Constitution of Colorado, and

was therefore unconstitutional. This word was substituted

for “illegal arrest.”

The Court of Appeals was requested to certify the

appeal to the Colorado Supreme Court for disposition on

the constitutional question. This, it declined to do when

it denied petitioner’s Petition for Rehearing. The Su-

preme Court of Colorado also refused to address the con-

stitutionality of the statute by denying certiorari.

12

REASONS FOR ALLOWANCE OF THE WRIT

1. Colorado Revised Statute, § 16-3-102 (1978 Repl.

Vol.) is unconstitutional in that it relieves an arrest-

ing officer with probable cause of the necessity of

obtaining an arrest warrant even if practicable, and

when there are no exigent circumstances.

In Colorado, as in other states, a decision of its inter-

mediate appellate court, here, the Colorado Court of Ap-

peals, is the law of the state if its supreme court declines

review.

We shall not be provocative; we shall get to the point

immediately, hopefully, with courage, and without any

doubt of the righteousness of our position and the basis

upon which it rests: United States v. Watson, 423 US.

411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), holding that

mere probable cause is sufficient for a warrantless arrest

in a public place, is in complete derogation of the intent

of the framers of the United States Constitution, is bot-

tomed upon erroneous premises, and has resulted in a

plethora of state statutes abrogating the rights sevvred

to citizens by the Fourth Amendment. It is not a true

reflection of the common law as the framers saw it, and

is utterly without credence since it is mere dicta. It is

submitted that it should be reviewed by this Court in

order to determine if the Constitution of the United States

is able to withstand this erosion of the rights of a private

citizen as guaranteed by the Fourth Amendment binding

on the states through the Fourteenth Amendment, and

whether the case rests on a foundation too flimsy to with-

stand more judicial scrutiny.

In the ten years since Watson was decided, much

has happened in the law enforcement field. Practically

13

all of the states now follow Watson although they are

not bound to do so. Colorado, which had carefully pro-

tected its citizens from unreasonable searches and seizures

by constitutional provisions, by statute, and a rule of

criminal procedure, has cast all these protections aside,

and although its General Assembly saw fit to pass a statute

comporting with the teachings of Watson, has followed

Watson as the guiding light in interpreting the Fourth

Amendment and a provision in its own constitution even

more restrictive. Article II, Section 7, Constitution of

Colorado, supra.

We ask: Why do the respective states, and even

our own respected Supreme Court, find it so easy to

bury basic rights of American citizens by their inter-

pretation of the English common law, the hardships alleg-

edly claimed by law enforcement officers, and the large

number of states that had chosen, even before Watson,

to do away with the neutral magistrate and place the

sacred right of privacy from unreasonable and often arbi-

trary arrest in the control of the policemen—an egregious

position in view of what has happened, and is happening,

in this Twentieth Century.’ It is mind-boggling and ap-

palling that the studied efforts of the framers of our

Constitution and its Bill of Rights, should be assigned

an intent that could not possibly be found in what they

said after inspired deliberations, profound thinking, great

learning, and close experience with a system they sought,

by risking their lives and property, to eliminate from

this new country, and the future generations to come.

2. In Colorado, the preliminary hearing, designed to bind

over for trial only those persons against whom a _ probable

cause case has been made, is utterly farcial. The hearing rarely

lasts over one half hour, and with very rare exceptions, all are

bound over. The term “probable cause” simply means in prac-

tice a modicum of evidence, most often hearsay.

14

We are not dealing here with an obscure tuvught, ex-

perience, statute, ordinance or rule of law. We are con-

cerned with what the Founders said with regard to indi-

vidual liberties. They sought to protect the individual

from arbitrary and often odious treatment when accused

of a crime, or about to be so accused. They sought to

regulate in a democratic fashion the right of the people

to be secure in their persons, homes, papers, and effects

from unreasonable searches and seizures, and demanded

that no warrant shali issue except upon probable cause

supported by an oath or affirmation of the accuser. This

meant the interposing of an impartial judicial officer

between the accuser and the accused, and the right to

deny the issuance of a warrant if probable cause was

not found.

The concept of the arrest warrant under the Fourth

Amendment is a magnificent concept and inextricably

tied to it is the practical doctrine of exigent circumstances,

which, of course, has lost its vitality under Watson and in

those states which have chosen to follow Watson, and the

states which ignored the doctrine even before Watson.

In Watson, the Court, in what appears to be pure

dicta, and in a ruling not required by the facts of the

case, approved long-standing acceptance in state courts

of the English common law as determining that arrest

warrants are no longer required. There is no other way

to interpret the case except, and this is a razor’s edge

distinction, when the arrest is sought to be made in a

private residence, and not in a public place. Payton v.

New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(1980).

Watson did not approve all warrantless arrests, but

somehow appeared to arrive at that point. The case

15

points out that 18 U.S.C. § 3061(a) (3), which gives postal

inspectors the right to warrantless arrests, and which

resulted in Watson’s arrest, was the considered judgment

of Congress that it is not unreasonable for postal inspectors

to arrest without a warrant provided they have the magic

formula of probable cause.* The Court reflected on a

number of other federal law enforcement agents who also

have such rights: Federal Bureau of Investigation agents,

United States marshals, drug enforcement agents, the

Secret Service, and the Customs Service. The result has

been that states like Colorado, which had vigorously en-

forced the Fourth Amendment in this area, now have

the power to not only ignore their own constitutional

provisions, but to pass statutes which make a mockery

out of the deeply felt concerns of the Founders to afford

more liberties to their constituents than those afforded

by their mother country, England. The point being made

is that Watson was a relatively simple case which went

much further than the facts presented to the Court, and

probably further than the Court itself anticipated.

In Watson, an informer deemed to be reliable, gave

information to postal authorities that Watson possessed

stolen credit cards. He met Watson in a restaurant, and

upon a given signal, which meant that Watson had stolen

credit cards in his possession, an arrest was made and

he was taken into custody. He gave the officers consent

to search an automobile where two more stolen credit

cards were found. The defense that the arrest was un-

lawful because it was warrantless, there being no exigent

circumstances, was rejected by a majority of this Court,

and the rule laid down that probable cause alone was

sufficient to make a warrantless arrest in public. Where

3. See footnote two as to the present state of the notion

of probable cause, at least in Colorado,

16

the Court found assistance in the language of the Fourth

Amendment, or in the records of the Constitutional Con-

vention, which allows such a distinction remains a mystery.

As pointed out in a concurring opinion and the dissent,

there was no reason to reach the question of exigent cir-

cumstances. Not only was there probable cause, but there

were exigent circumstances since the arrestee was in the

ac‘ual process of committing a crime, and in the presence

of the arresting officers. Traditionally, and with good

cause, under such circumstances exigent circumstances

existed and a warrantless arrest is permissible. But, the

Court seized upon this opportunity to base its decision

upon probable cause, and in the process, to effectively

discard, once and for all, the doctrine of exigent circum-

stances sc long as the arrest is made in a public place.

The decision has had a decided effect on the State

of Colorado. Prior to Watson, Colorado had adhered

strictly to Article II, Section 7 of its Constitution which

required not only probable cause, but a warrant supported

by an oath or affirmation reduced to writing. Its General

Assembly codified these requirements in C.R.S. § 16-3-102,

supra, which required an arrest warrant if possible. The

constitutional provision is still in effect, but, obviously

relying on Watson, the General Assembly amended this

statute in 1977, eliminating the requirement of a warrant

if there is probable cause. The statute, prior to the 1977

amendment, provided in pertinent part:

16-3-102. Arrest by peace officer. * * * (1)(c) He

has probable cause to believe that an offense was

committed and has probable cause to believe that

the offense was committed by the person to be ar-

rested. An arrest warrant should be obtained when

practicable.

17

To further compound Colorado’s confusing but loyal

adherence to Watson, Rule 4.2 of its Rules of Criminal

Procedure has remained unchanged and provides that if

a warrant for arrest is sought prior to the filing of an

information, an affidavit must be sworn to or affirmed

before a judge which relates facts which establish prob-

able cause. See supra. Furthermore, C.R.S. § 16-3-108

remains unchanged and contains identical provisions.

Colorado has a series of cases which burgeoned after

Watson, and even before its General Assembly enacted

§ 16-3-102 supra. Until the instant case appeared, the

Colorado appellate courts had not relied upon the statute,

but upon Watson.

In People v. Tangos, 190 Colo. 262, 545 P.2d 1047, the

Colorado Supreme Court put it bluntly:

When the facts establish probable cause, we are no

longer required to determine whether exigent cir-

cumstances justify a warrantless arrest in a public

place.

(545 P.2d 1049)

'The court pointed out that in view of the fact that

the constitutional dimensions of the question of exigent

circumstances has now been reduced to a rule of “judicial

preference,” it must now conclude that probable cause

alone is sufficient to justify the arresting officer’s action.

C.f. People v. Hoinville, supra.

The uncertainty of the Colorado Supreme Court after

Watson was evident in People v. Glasener, 191 Colo. 114,

550 P.2d 851 (1976), where it stated that it intimated no

view of whether the Colorado statute requiring an arrest

warrant was applicable to the case. While the General

18

Assembly attempted to resolve this uncertainty by enact-

ing C.R.S. § 16-3-102, supra, the line of Colorado cases

abrogating the requirement of exigent circumstances for

a warrantless arrest all rest their decision on Watson.

E.g. People v. Valesquez, 641 P.2d 943 (Colo. 1982).

Watson opened the door to a potpourri of state stat-

utory provisions emasculating not only the Fourth Amend-

ment in this context, but ignoring their own constitutional

provisions, as in Colorado. The nature of a petition for

certiorari does not allow an in-depth analysis of what

the states are doing, but a few examples may suffice.

Hawaii Revised Statutes (1976 Supp.), § 803.5, is a

good example:

Policemen or other officers of justice, in any seaport

or town, even in cases where it is not certain that

an offense has been committed, may, without war-

rant, arrest and detain for examination such persons

as may be found under such circumstances as justify

a reasonable suspicion that they may have committed

or intend to commit a crime.

In other states, such terms as “reasonably believes”

(Florida Statutes Ann. § 101.15); “reasonable grounds”

(Arkansas Statutes 1977 Repl.Vol. § 43-403); “reasonable

cause” (Idaho Code, § 19-603); have crept into statutes

dispensing with the necessity of an arrest warrant under

any circumstances with the possible exception of an ar-

rest in a residence.

Another matter of concern is that the acts of Con-

gress granting certain agencies the-power to arrest on

probable cause only, has been expanded in Colorado to

include all peace officers. This is undoubtedly the case

19

throughout the country. Thus, such peace officers, whether

agents of administrative agencies such as the Colorado

Game, Field and Parks Commission, or small-town con-

stables, have the awesome power to arrest on hearsay,

weak accusations, speculation, conjecture, surmise, and

possible mere enthusiasm.

Watson recognizes that not all federal officers have

been given the authority enjoyed by the postal inspectors,

and are subject to more restrictive standards, but, this is

small solace to the petitioner and others like him. The

floodgates are open. What this has led to in 1986, ten

years after Watson, is surely a subject to be reexamined

by the Court.

We shall briefly turn to Watson and the underpinnings

relied upon by the court to justify changing the plain lan-

guage of the Fourth Amendment, and inferentially giv-

ing Colorado the right to disregard its own constitutional

provisions (Article II, Section 7 of the Constitution of

Colorado).

The court states that it has never invalidated an ar-

rest supported by probable cause solely because the of-

ficer failed to serve a warrant (423 U.S. at 418). However,

in his concurring opinion, Justice Powell points out that

Watson is the court’s first “square holding” that the Fourth

Amendment permits a duly authorized law enforcement

officer to make an arrest in a public place even though

he has had adequate opportunity to procure a warrant

after developing probable cause for the arrest (423 U.S.

4. It is interesting that as late as 1981, the Colorado Su-

preme Court stated that an arrest without a warrant is presumed

to be unconstitutional. People v. Burns, 200 Colo. 387, 623 P.2d

397 (Colo. 1981).

20

at 427). We respectfully suggest that this first pronounce-

ment of the highest court in the land on warrantless ar-

rests in pubic places could have been bottomed on prob-

able cause only, and is unfortunate that it did not do so in

six respects: (1) It is dicta since exigent circumstances

were present in that the crime was being committed in

the presence of the postal inspectors; (2) the court relies

upon custom, that is, many states have already reached

the Watson conclusion; (3) the court relied upon history

and the common law of England; (4) the court reaches the

unwarranted conclusion that it would be a hardship upon

law enforcement officers to obtain warrants when prac-

ticable; (5) the court draws a distinction between war-

rantless arrests in public and private places; and (6) the

court does not appear to equate a search warrant and an

arrest warrant.

Space does not permit the detailed analysis of each

of these points, and we shall be brief in confining our

comments to what appears to be the real basis of the

court’s decision: the English common law.

The court points out that a peace officer was permitted

to arrest without a warrant for a misdemeanor or a felony

committed in his presence as well as for a felony not

committed in his presence if there was reasonable grounds

for making the arrest. As Justice Brennai: commented,

to appiy this rule blindly under present-day circumstances

is to try to interpret Hamlet’s admonition to Ophelia,

“Get thee to a nunnery, go.” A nunnery in Elizabethan

times was a brothel.

The framers were well aware of the excesses of the

English common law as it related to criminal offenses,

and its wide range of punishment as between misdemean-

21

ors and felonies. Not only that, but what was a serious

crime under common law may not be so now.

For instance, an assault was a misdemeanor even if

made with the intent to rob, murder, or rape. Kidnapping,

forgery, mayhem, perjury and riots were also of misde-

meanor status. Wilgus, Arrest Without a Warrant, 22

Mich. L. Rev. 541, 572-573 (1924). To discharge a pistol

at the king at one time was a misdemeanor. 9 Halsbury’s

Laws of England 459 (1909). Since many of the mis-

demeanors in that day are felonies today, it would appear

quite clear that reliance on the common law rule is mis-

placed. Furthermore, it is hard to believe that the drafters

of our Constitution would be inclined to follow a system

which, at the time of Blackstone, the number of capital

offenses reached an appalling total of 160. Sentences of

death could be imposed for robbing a rabbit warren,

cutting down a tree, stealing goods of the value of five

shillings from a shop, or forty shillings from a dwelling,

or impersonating a pensioner. John Laurence, A History

of Capital Punishment, p. 13 (1960).

Again, space will not permit in-depth comment on

the hardship Watson believes will be endured by police,

except to state that this is an illusion. Modern police

methods and technology begs another look at this theory,

as does the court’s bifurcating of the standards govern-

ing search warrants as opposed to arrest warrants, and

public and private places.

Finally, the court’s conclusions about litigation over

what are exigent circumstances appears to be unfounded.

It is suggested that probable cause is a more ephemeral

subject than exigent circumstances. The reliability of

an informer adds an extra dimension,

22

2. Absent exigent circumstances, it is constitu-

tionally impermissible to draw a distinction between

a warrantless arrest in a residence and a warrantless

arrest in a public place.

Payton v. New York, supra, decided that a warrant-

less entry into a house in order to make an arrest, in the

absence of consent or exigent circumstances, violates the

Fourth Amendment. This case stands for the proposition

that the doctrine of exigent circumstances is not com-

pletely dead, but may be expiring since the zone of privacy

rule is whittling away at the concept. See United States

v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300

(1976), where a distinction was drawn between a woman

standing in the doorway of her house, and being inside the

house. Held: While standing in the doorway, she was

in a public place. For purposes of the Fourth Amend-

ment, she had no expectation of privacy because she was

exposed to the public view, speech, hearing, and touch,

as though she was standing completely outside her house.

The fact that she retreated into the house could not de-

feat a warrantless arrest which had been set in motion

in a public place.

This sort of hair-splitting teaches nothing. A proper

analysis should not involve zone of privacy considera-

tions, but the fact that the police had probable cause

and, because the lady was holding a brown paper bag

which could contain disposable drugs, exigent circum-

stances did exist. The exposure to public view discussion

added nothing to one’s store of knowledge.

The point being made here is that the dichotomy be-

tween warrantless arrests in residences and in public

places is needless, unworkable, and should be reexamined.

23

When one is on the street, it is expected that that per-

son’s personal, physical and emotional integrity will be

respected and protected. This right can be assumed.

It makes absolutely no difference, and has no lesser or

greater impact upon that individual’s dignity and feel-

ings if he is arrested on the street, or if a policeman

walks through an open door of his living quarters, and

performs an arrest. In both cases, in the absence of

exigency, a warrant should be obtained. The distinction

is meaningless and should be abandoned for the sake of

uniformity, and in view of the failure of the Fourth

Amendment to make such a distinction.

3. The back seat of a police car parked outside

of an arrestee’s motel room is not a public place.

If the residence-public place dichotomy is followed

here, then another issue must be determinel: Is the back

seat of a police car a public place? Petitioner was in

a motel room and left it to sit in the police car where he

filled out a stolen vehicle report, and was then arrested

without a warrant, not for making the report, but for

theft.

Under Santana, there is no evidence of exposure to

public view, speech, hearing, and touch. Indeed, the

inside of a police car certainly cannot be characterized

as a public place. It is an example of what cases like

Santana lead to, and why the residence-public place dis-

tinction should be abandoned in favor of the Fourth

Amendment consistency which existed, at least in spirit,

prior to Watson: There should be no warrantless ar-

rests when the procuring of a warrant is feasible.

24

CONCLUSION

Justice Brennan, dissenting in United States v. Mil-

ler, 425 U.S. at 454, 96 S.Ct. 820, 48 L.Ed.2d 71 (1976),

sums up what the states are doing in light of decisions

like Watson:

We cal! attention to the emerging trend among high

state courts of relying upon state constitutional pro-

tections of individual liberties—protections pervading

counterpart provisions of the United States Constitu-

tion, but increasingly being ignored by decisions of

this Court.

For the reasons above expressed, a writ of certiorari

should issue to review and reconsider United States v.

Watson, supra, and the constitutionality of § 16-3-102 of

the Colorado Revised Statutes.

Respectfully submitted,

JosePH P. Gencui, P. C.

JOSEPH P. GENCHI

302 E. Elkhorn Ave. - P. O. Box 1990

Estes Park, Colorado 80517

Telephone: (303) 586-2496

Attorney for Petitioner

Al

APPENDIX

(Filed September 12, 1985)

COLORADO COURT OF APPEALS

No. 83CA0932

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellee,

v.

HARRY A. STROZZI,

Defendant-Appellant.

Appeal from the District Court of Jefferson County

Honcrable Gaspar F. Perricone, Judge

DIVISION I JUDGMENT AFFIRMED

Opinion by JUDGE PIERCE

Kelly and Babcock, JJ., concur

Duane Woodard, Attorney General

Charles B. Howe, Chief Deputy Attorney General

Richard H. Forman, Solicitor General

Clement P. Engle, Assistant Attorney General

Denver, Colorado

Attorneys for Plaintiff-Appellee

Joseph P. Jenkins, P.C.

Joseph P. Jenkins

Estes Park, Colorado

Attorneys for Defendant-Appellant

A2

Defendant, Harry A. Strozzi, appeals from the judg-

ment of conviction entered following a jury verdict find-

ing him guilty of one count of theft over $10,000 and one

count of theft of more than $200 but less than $10,000.

We affirm.

The prosecutor’s evidence showed that defendant was

an independent trucker who was hired to haul a trailer

containing food items from Arizona to Minnesota. Shortly

after defendant picked up the load, he met a man at a

truckstop who talked him into a scheme that he claimed

would help defendant out of his financial trouble. The

plan called for defendant to sell his truck, trailer, and cargo

to a third party through this man for $25,000. Then de-

fendant would report his truck stolen, and the insurance

proceeds would pay off his loan on the truck.

Defendant’s accomplice unknowingly arranged to sell

the truck and its cargo to a police undercover agent in

Colorado. Defendant’s accomplice was arrested shortly

after the sale took place, and he fully implicated the de-

fendant. The accomplice cooperated with the police by

allowing them to listen to a telephone conversation be-

tween him and defendant in which they discussed com-

pleting the deal and splitting the money from the sale.

According to plan, defendant contacted the police the next

day to report his truck stolen and was arrested when he

signed the stolen truck report.

Defendant’s defense was that he changed his mind

and had abandoned his plan to sell the truck prior to

getting to Colorado but that he was forced to go through

with the crime by the threats of his accomplice.

A3

I.

Defendant contends the trial court erred in admitting

evidence of the telephone conversation between defen-

dant and his accomplice. We disagree.

Defendant’s argument is two-pronged. He first argues

that he had an absolute expectation of privacy in his tele-

phone conversation with his accomplice so any police in-

terception of the conversation was a search and seizure

within the meaning of the Fourth Amendment. Thus,

since police did not get a warrant prior to taping the con-

versation, the telephone conversation should have been

suppressed as the product of an illegal search. Defendant,

alleging that the accomplice was a police agent, also argues

that he was entitled to receive Miranda warnings before

speaking with his accomplice on the phone.

A.

A defendant does not have a justifiable and consti-

tutionally protected expectation that a person with whom

he is conversing will not then or later reveal the conversa-

tion to police. United States v. White, 401 U.S. 745, 91

S. Ct. 1122, 28 L.Ed.2d 453 (1971); People v. Velasquez,

641 P.2d 943 (Colo. 1982); People v. Palmer, 652 P.2d

1092 (Colo. App. 1982). A police agent who conceals his

police connections may either report or record a conversa-

tion with a defendant without violating defendant’s Fourth

Amendment rights. United States v. White, supra; Hoffa

v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374

(1966). Also, there is no violation of the Colorado Con-

stitution so long as the police agent does not unlawfully

intercept the communication with the defendant. People

v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied,

423 U.S. 1053, 96 S. Ct. 783, 46 L.Ed.2d 642 (1976). More-

A4

over, there is no unlawful interception of a phone call

if one party to the conversation agrees to allow the police

to tape the call. See §18-9-304(1) (a), C.R.S. (1978 Repl.

Vol. 8); People v. Morton, supra.

Here, because defendant had no expectation of privacy

in the telephone conversation with his accomplice, the

police were not required to obtain a warrant before taping

the conversation. Furthermore, because the accomplice

consented to allow the police to listen to and tape the

conversation, the police action was not illegal and did not

violate Colo. Const. art. II, §7. Thus, the trial court did

not err in refusing to suppress the conversation on this

ground.

B.

Voluntary statements unknowingly made to an in-

formant are not protected by the Fifth Amendment privi-

lege against compulsory self-incrimination. In such sit-

uations, Miranda warnings are not required. Hoffa v.

United States, supra; People v. Aalbu, 696 P.2d 796 (Colo.

1985); People v. Battle, 694 P.2d 359 (Colo. App. 1984).

Statements are voluntary if they are made without threats

of violence or induced by promises. People v. Bookman,

646 P.2d 924 (Colo. 1982).

Here, even if the accomplice was a police informant,

he was not required to give defendant Miranda warnings

before talking to him on the phone. In addition, although

one of defendant’s theories of defense is that he was co-

erced to participate in this scheme, there was no evidence

that he made the statements in the phone call as a result

of threats or promises. The transcript of the conversation

does not indicate that defendant’s accomplice threatened

or promised him anything to induce his statements. The

A5

trial court did not err in finding these statements volun-

tary and allowing admission of the statements into evi-

dence.

II.

Defendant next contends the trial court erred in ad-

mitting evidence that defendant reported his truck and

trailer stolen just prior to his arrest. We disagree.

A.

Defendant first argues that his false theft report was

inadmissible because he was not given Miranda warnings

before making the report. Even though defendant called

the police and asked them to meet him at the truck stop

to take a stolen truck report, defendant claims the report

was the product of a custodial interrogation. In support

of this claim, defendant argues that the police had focused

their investigation on him and he gave the report while

seated in the back seat of the patrol car.

Interrogation is custodial when it is initiated by law

enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action

in any significant way. Miranda v. Arizona, 384 US.

436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966); People v.

Thiret, 685 P.2d 193 (Colo. 1984). The test of when a

person is in custody is whether a reasonable person in

the defendant’s circumstances would have believed that

he was free to leave the officer’s presence. People v.

Thiret, supra; People v. Johnson, 671 P.2d 958 (Colo.

1983). The court must consider the totality of the cir-

cumstances surrounding the interrogation in determining

what belief was reasonable. Among the many factors

A6

to be considered in this determination are the time, place,

and purpose of the interrogation. People v. Thiret, supra;

People v. Johnson, supra.

Here, the police met defendant at the truckstop at

defendant’s request. The officer taking the report testi-

fied that although defendant was sitting in the patrol

car, he was not handcuffed and was free to go at any

time until he signed the false report. There was no

evidence presented thet defendant felt he was not free

to leave at the time he gave the false theft report. Under

these circumstances the court properly ruled that the

defendant was not in custody and, thus, not entitled to

Miranda warnings at the time the report was made.

Hence, it was not error to admit the evidence of the

defendant’s false theft report.

B.

Even though the report was taken before defendant

was arrested, he argues that the theft report was the

inadmissible fruit of an illegal arrest. Defendant contends

that he was illegally arrested because the police did not

have a warrant or exigent circumstances to arrest with-

out a warrant. Defendant does not dispute that the police

had probable cause to arrest.

Defendant’s argument is based upon the arrest statute

before the 1977 amendment that removed the warrant

requirement. The law no longer requires an officer with

probable cause to obtain an arrest warrant when prac-

ticable. See §16-3-102(1)(c), C.R.S. (1978 Repl. Vol. 8).

Thus, defendant’s claim is without merit.

AT

II.

Defendant next contends that the trial court erred

in admitting his confession to the crime charged. We

disagree.

Defendant argues that his confession was involuntary

because he was “shaken up” by being arrested and con-

fronted with the evidence against him. The officer taking

the statement testified that defendant was coherent, fully

understood what was going on, and was cooperative. De-

fendant does nct contend that he was threatened or prom-

ised anything in exchange for his testimony or that the

evidence that he was confronted with was false or mis-

leading. The trial court ruled the defendant’s confession

was voluntary and followed a proper advisement and

waiver of his Miranda rights.

To be admissible in evidence, a confession must be

shown to be free and voluntary, made without threats

of violence or promises of special consequences and made

without the exertion of improper influences. Brady v.

United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L.Ed.2d

747 (1970); People v. Bookman, supra; People v. Parada,

188 Colo. 230, 533 P.2d 1121 (1975). The voluntariness

of the confession must be determined by looking at the

totality of the circumstances surrounding the giving of

the statement. People v. Bookman, supra. On appeal,

the trial court’s finding of fact on the voluntariness issue

will not be reversed where the findings are supported

by adequate evidence in the record. People v. Fordyce,

200 Colo. 153, 612 P.2d 1131 (1980).

Here, there is no evidence in the record that defen-

dant’s statements were induced by promises, threats, or

A8

improper influences. The evidence that defendant under-

stood what was going on and was cooperative supports

the trial court’s findings that defendant’s confession was

voluntary. It was not error to admit defendant’s con-

fession.

IV.

Defendant contends the trial court erred in denying

his motion for mistrial based upon prosecutorial miscon-

duct. We disagree.

Defendant complains that the prosecutor argued facts

not in evidence in his closing argument. In his closing

argument defendant insinuated that the accomplice’s case

was plea bargained in exchange for the accomplice’s tes-

timony against him. The prosecutor, in his final closing

argument, reminded the jury that the evidence did not

support this insinuation. The prosecutor then went on to

explain that it was not unusual to plea bargain a case

in a county where 5,000 cases a year are filed because

not every case can be tried. The defendant objected

that these comments were not supported by evidence

in the record. The court overruled the objection and

allowed the prosecutor to make his point.

Determination of whether the prosecutor’s closing

argument is improper depends upon the nature of the

comment and whether the jury’s attention has been

directed to something which it is not entitled to consider.

People v. Constant, 645 P.2d 843 (Colo. 1982). Comment

on facts not in evidence is unprofessional conduct only

if such facts are not matters of common public knowledge.

ABA, Standards for Criminal Justice, Standard §3-5.9 (2d

Ed. 1982).

A9

The granting or denial of a motion for a mistrial is

within the sound discretion of the trial court, and its de-

termination will not be disturbed on review unless it is

apparent the court abused its discretion resulting in a

denial of justice. People v. Ferrell, 200 Colo. 128, 613

P.2d 324 (1980).

Here, the prosecutor’s explanation of the reason for

plea bargaining was of common knowledge, and was

neither improper nor prejudicial. Thus, the court did

not abuse its discretion in denying defendant’s motion

for a mistrial based solely on this comment.

Judgment affirmed.

JUDGE KELLY and JUDGE BABCOCK concur.

Al0

THE COURT OF APPEALS OF THE

STATE OF COLORADO

Case Number 83CA0932

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellee,

v.

HARRY A. STROZZI,

Defendant-Appellant.

ORDER

Upon consideration of the Petition for Rehearing filed

by the appellant herein, said Petition is hereby DENIED.

It is ordered that issuance of the Mandate hereby be, and

the same hereby is, stayed to and including 11-12-85,

provided that if Petition for Writ of Certiorari is timely

filed with the Supreme Court of the State of Colorado,

the stay shall remain in effect until disposition of the

within cause by the Supreme Court.

Pierce, J.

Kelly, J.

Babcock, J.

(SEAL)

DATED: 10-10-85

|

All

SUPREME COURT, STATE OF COLORADO

Case No. 85SC443

Certiorari to the Colorado Court of Appeals 83CA0932

Jefferson County District Court 82CR1048

ORDER OF COURT

HARRY A. STROZZI,

Petitioner,

Vv.

THE PEOPLE OF THE STATE OF COLORADO,

Respondent.

Upon consideration of the Petition for Writ of Cer-

tiorari to the Colorado Court of Appeals, and after review

of the record, the briefs, and the opinion of said Court

of Appeals,

IT IS THIS DAY ORDERED that said Petition for

Writ of Certiorari shall be, and the same hereby is, DE-

NIED.

BY THE COURT, EN BANC, JANUARY 31, 1986.

ce: Gary Sonke, Clerk

Colorado Court of Appeals

Joseph P. Genchi, P.C.

Joseph P. Genchi

302 East Elkhorn Avenue

P.O. Box 1990

Estes Park, CO 80517

Duane Woodard, Attorney General

Charles B. Howe, Chief Deputy Attorney General

Richard H. Forman, Solicitor General

Clement P. Engle, Assistant Attorney General

1525 Sherman Street, 3rd Floor

Denver, CO 80203

Al2

Honorable Gaspar F. Perricone

Jefferson County District Court

Hall of Justice

1701 Arapahoe Street

— Golden, CO 80419

(SEAL)