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People v. Clark12/11/1975
The opinion announced on August 19, 1975, is withdrawn, and the following opinion is issued in its stead.
Defendant, Melvin Clark, was tried by a jury and convicted of first degree burglary, in violation of § 18-4-202, C.R.S. 1973, and rape, in violation of § 18-3-401, C.R.S. 1973. We affirm.
I. Warrantless Search
Defendant contends that the trial court erred in not granting a motion to suppress certain evidence obtained without a warrant. We disagree.
At the hearing on the motion, the following evidence was presented. At approximately 2:15 a.m. on the morning of February 18, 1974, three officers of the Greeley Police Department responded to a report that a rape had occurred at a residence located approximately one block from an apartment complex in which defendant and his brother occupied a garden level apartment.
In the course of their investigation at the residence of the prosecutrix, the investigating officers were informed by her that the perpetrator of the offense was a black male about 5'10" in height and weighing approximately 150 pounds. The officers observed two sets of footprints in freshly fallen snow, one set leading to the residence and one set leaving the residence. The officers followed each set of footprints and determined that they led by different routes to the apartment complex where defendant lived. Both sets of footprints were of similar size and the soles of the shoes creating the prints had a pattern customarily found on certain types of hiking boots.
After following the footprints to the apartment complex, the officers entered the building through the door apparently used by the individual making the tracks. A landing was located inside the door from which a person entering the apartment complex either climbed a stairway to the upstairs apartment or followed a stairway down to the garden level
apartments. There was a plastic "runner" across the landing and on the stairway. The officers noted what appeared to be a dry toe print on the plastic runner on the stairway leading downstairs which indicated to them that the individual making the prints in the snow had entered the building and gone downstairs. The officers then contacted an off-duty officer who resided in the apartment complex to determine if any of the apartment residents fit the description given by the prosecutrix, and were referred to the apartment manager. The apartment manager advised that defendant's brother might fit the description given and that he resided in an apartment on the garden level.
The officers then went to the defendant's apartment and knocked on the door. There was no answer. The officers therefore obtained a pass key from the manager. When the officers returned, they knocked once again rather than using the key, and this time the door was opened by the defendant's brother.
The testimony of the investigating officers and the defendant and his brother is in conflict as to what transpired thereafter. The officers testified that the brother was advised that they were investigating a rape that had occurred nearby and wished to enter and search for hiking boots that made the tracks in the snow. According to the officers, the brother and subsequently the defendant gave permission to enter the apartment and search. During the course of a search of the bedroom, the defendant inquired whether the officers had a search warrant. One of the officers replied in the negative and inquired whether defendant felt they should obtain a search warrant, whereupon defendant repli
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