Summary
finding agency relationship where tow-truck driver had no reason to search vehicle except at the suggestion of the police
Summary of this case from People v. PilkingtonOpinion
No. 94SA446
Decided June 5, 1995
Interlocutory Appeal from District Court, Chaffee County Honorable Kenneth M. Plotz, Judge.
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS.
Edward J. Rodgers, District Attorney, Eleventh Judicial District, Canon City, Colorado, Norman C. Cooling, Deputy District Attorney, Eleventh Judicial District, Salida, Colorado, Attorneys for Plaintiff-Appellant.
Harvey Kaplan, Denver, Colorado, Attorney for Defendant-Appellee.
The prosecution brings this interlocutory appeal from a district court order suppressing evidence seized after an allegedly illegal search without probable cause.
Gilardo Aguilar, the defendant, was charged by an information with possession of a controlled substance and possession of a controlled substance with intent to distribute, in violation of section 18-18-405(1), 8B C.R.S. (1986). Aguilar moved to suppress all evidence observed or collected from a search of his vehicle. The trial court granted the motion and suppressed all evidence seized from Aguilar's vehicle by a tow truck operator. The prosecution appeals the holding of the district court, arguing that the search was conducted by a private party, not by the government. Thus, the prosecution argues that Fourth Amendment protections are inapplicable and that the evidence should be admissible. We affirm the trial court's finding that the tow truck operator was acting as a police agent when he searched the vehicle. However, that finding is not dispositive with respect to the suppression motion. We reverse the suppression order and remand for reconsideration of the validity of the search.
I.
On March 12, 1994, a police officer in Chaffee County contacted Aguilar because he was walking in a suspicious manner near a vehicle which another officer had stopped for a traffic offense. The officer executed a patdown search of Aguilar. The officer then went to Aguilar's vehicle and observed a person pumping up a rear tire. Because the tire looked full and the person apparently pumping up the tire looked nervous, the officer asked Aguilar to produce identification. Aguilar entered his vehicle to obtain his identification. After an unsuccessful search, he did not produce any identification although he later identified himself verbally. The officer then determined that Aguilar's driver's license had been revoked and that there was an outstanding warrant for his arrest. As a result, Aguilar was placed under arrest.
The stopped vehicle was driven by Aguilar's brother. From the record, it appears that the brothers were traveling together in separate vehicles.
There is no dispute that the defendant was properly stopped and properly arrested.
After Aguilar was taken into custody, a tow truck operator was called to remove Aguilar's vehicle from the highway to an impoundment lot. A police officer directed the tow truck operator to the vehicle. In addition to searching portions of the vehicle with the police officer, the tow truck operator noticed that the rubber gear shift boot was inverted inside the vehicle. The operator removed the boot and discovered a packet containing a white powdery substance, which later proved to be cocaine.
Aguilar filed a motion to suppress the cocaine found in the vehicle, arguing a violation of his state and federal constitutional rights. The district court held that the tow truck operator acted in concert with the police officer and conducted a search of Aguilar's vehicle. Because the officer had obtained neither Aguilar's consent nor a search warrant for the vehicle, the district court held that the search violated Aguilar's rights and suppressed the evidence.
II.
The prosecution argues that the tow truck operator was not acting as an agent of the police at the time of the search. The trial court held:
Trooper Boccaccio [the police officer searching the vehicle] testified that [he] thought he noticed something suspicious when he observed a plastic protrusion to the tow truck operator. Although his suspicions were dispelled about the piece of plastic, the tow truck operator then went on to remove the rubber boot, which he (the tow truck operator), indeed thought was suspicious, as the trooper looked on. Although, the boot was not specifically removed at the troopers direction, it is clear to this Court, from the evidence, that both Trooper Boccaccio and the tow truck operator were acting together in determining the existence of anything suspicious. Thus, this Court concludes that there was a search.
. . .
The Court further finds that the testimony and evidence indicates that Boccaccio (the police officer) and the tow truck operator were acting together, albeit somewhat informally. Nevertheless, their actions constituted a search. The purpose of the search was to discover suspected contraband or materials of a suspicious nature.
When a civilian acts as an agent of the state, evidence obtained from an unlawful search must be suppressed. Coolidge v. New Hampshire, 403 U.S. 443 (1971); United States v. Price, 383 U.S. 787 (1966). The "agency" rule prevents police from circumventing the Fourth Amendment by having a private individual conduct a search that would be unlawful if performed by the police themselves. People v. Chastain, 733 P.2d 1206, 1214 (Colo. 1987). The resolution of whether an individual becomes such an "agent" of the police is determined by the totality of the circumstances. Coolidge, 403 U.S. at 487; People in Interest of P.E.A., 754 P.2d 382, 385 (Colo. 1988).
In this case, the record supports the finding of the trial court. The record shows that the tow truck operator and the police officer carefully examined the vehicle, making numerous observations. Although the tow truck operator had some autonomy with regard to the actual act of towing, the record reflects that the police officer had pointed out a strange ring protruding from the carpet and asked the tow truck operator to examine it. Shortly thereafter, the tow truck operator lifted the gear shift boot and discovered the cocaine. The trial court correctly found that the police officer, had he turned the gear shift boot over, would have performed a search. Thus, the tow truck operator, acting informally in concert with the police officer, conducted a search as an agent of the police.
Some factual dispute exists as to whether the operator and the officer were taking inventory or conducting a search. The trial court held that the actions of the operator and officer were beyond mere inventory procedures.
III.
The fact that the tow truck operator was a police agent for purposes of searching Aguilar's vehicle is not dispositive of the suppression issue.
The Fourth Amendment of the United States Constitution proscribes unreasonable searches and seizures by state officials. United States v. Jacobsen, 466 U.S. 109, 113 (1984); People v. Brewer, 690 P.2d 860, 862 (Colo. 1984). When the police make a lawful custodial arrest of the occupant of an automobile, however, the police may search the passenger compartment of that automobile. New York v. Belton, 453 U.S. 454, 460 (1981); see also People v. McMillon, No. 93SC336 (Colo. April 3, 1995). Similarly, police are permitted to search a lawfully arrested person and the area within the arrestee's immediate control. Chimel v. California, 395 U.S. 752, 763 (1969); People v. Hufnagel, 745 P.2d 242, 245-47 (Colo. 1987).
The trial court, however, did not evaluate the constitutionality of the search as a search incident to arrest. Accordingly, we vacate the suppression order and remand to the trial court for reconsideration of the search.
JUSTICE ERICKSON specially concurs, and JUSTICE SCOTT joins in the special concurrence.