Opinion
Rehearing Denied June 24, 1975.
Page 122
John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., David A. Sorenson, J. Stephen Phillips, Asst. Attys., Gen., Denver, for plaintiff-appellee.
Ronald A. White, Aurora, for defendant-appellant.
STERNBERG, Judge.
Following a jury trial, defendant Dupree was convicted of unlawful possession of heroin for sale in violation of s 12--22--302, C.R.S.1973 (C.R.S.1963, 48--5--2). On appeal, he urges that since evidence used to procure this conviction was the product of an unlawful entry and subsequent illegal warrantless search, the judgment of conviction should be reversed.
The People contend that: a) Defendant has no 'standing' to question the search, b) he has waived his right to this objection, and c) even if we reject the above contentions, the matter must be remanded to the trial court for an evidentiary hearing and findings of fact on the issue of the legality of the original entry and subsequent search. Since we conclude that the defendant does have standing to make the objection, that there was no waiver, and that an evidentiary hearing must be held on the issue, we remand the cause to the trial court for such hearing.
Upon responding to a call from a resident of an Aurora apartment building, a police officer observed a scantily clad young girl wandering the hallways at 4:20 a.m. on August 23, 1972. The child had told the resident, and repeated to the officer, that she lived in apartment 101, and that she did not know where her mother was. Proceeding to that apartment, the officer found the door open and entered the apartment to get clothing for the child. He testified that while in the apartment he observed drug paraphernalia and a substance which he believed to be heroin in plain view both in an open dresser drawer and on the shelf of an open closet. He relayed this information to his sergeant by telephone.
Following this telephone call, the child's mother arrived at the apartment. The officer observed needle marks on her left arm some of which were still bleeding. He then arrested her for child abandonment and suspected possession of heroin.
Immediately thereafter, the sergeant appeared at the apartment, looked at the evidence, and requested narcotics investigators to come to the scene. Two such investigators of the Aurora Police Department arrived at approximately 5:00 a.m. and observed the items that were in plain view inside the apartment. A police photographer also came to the scene and photographed the contents of the apartment. These photographs were used to obtain a search warrant about 11 o'clock that morning. Following issuance of the warrant, a complete search of the apartment was made, and the items that had been originally observed were seized, as well as numerous other things. Among the items taken were quantities of heroin and cocaine, and drug paraphernalia. Also seized were certain non-contraband material which indicated this defendant's connection with the premises. Among these were checks, a checkbook, deposit slips, an address book, and other records, many of which bore defendant's name. He testified at trial that these non-contraband items were his.
Testifying as a witness for the prosecution at trial, the child's mother implicated the defendant in activities involving sale and distribution of heroin. She said the apartment was not hers, but rather that it had been rented by the defendant, that she had been in it only four or five times before, that she had taken the defendant to the airport, and that she was staying there with his permission while he was gone. She also said that defendant asked her to make deliveries of drugs located in the apartment.
The defendant testified that he lived at a different address with his wife and children. While he admitted signing a lease for the apartment, he maintained that he did so only as an accommodation for another woman friend who needed a male's signature on the lease. In spite of the fact that his name appeared on the mailbox and that he had signed the lease, he denied living there, stating he had been at the apartment 'only a few times.' He also denied any interest in the contraband seized in the apartment, but said that the checks and records were his.
Since his defense was based on the theory that he had no significant property rights in the apartment, the People contend that the defendant does not have the requisite standing to question the validity of the entry and of the search. They rely on People v. Towers, 176 Colo. 295, 490 P.2d 302, and argue that defendant cannot both disclaim property rights in the apartment and also complain of a search of that apartment. We disagree. Towers is clearly distinguishable. There, the defendant's claimed and proven ties to the premises in question were based on a temporary presence therein, and were minimal. Towers had visited a friend's room only once, and the Supreme Court held that his 'fleeting presence in the dormitory room on the evening before the search' gave him no standing to question a later search of the room. In Towers, the Supreme Court refused to allow the defendant to 'now claim a possessory interest that is Unsupported by the record and in direct contradiction to his own testimony.' (Emphasis supplied) Here, defendant claims a possessory right in the checks and the records stored on the premises, his name appeared on the mailbox, and he admitted he had signed the lease for the apartment. The People's own case also established these facts. Thus, unlike Towers, this defendant's possessory interest is supported by the record. Therefore, he had Fourth Amendment rights in both the apartment and the checks and records. See People v. Godinas, 176 Colo. 391, 490 P.2d 945. His disclaimer of any interest in the contraband, and his attempt to minimize his contacts with the apartment do no denigrate these rights.
Despite defendant's objection to the admission of the exhibits on at least five occasions during the trial 'on the grounds that these materials were all improperly seized as a result of an improper search of his apartment,' the People contend that defendant has 'waived' his right to this objection. Their argument is based in part on one off-hand statement by defense counsel during argument that the officer was 'in the apartment properly in the beginning.' Since that remark was limited to the propriety of entering to obtain clothing for the child, it cannot be interpreted to constitute a waiver of defendant's right to object to admission of the evidence obtained in the search. Additionally, there was no failure to make contemporaneous objection to the admission of the fruits of the search. Nor does defendant's failure to file a motion to suppress the evidence prior to trial foreclose his right to object to admission of that evidence at the time of trial. Crim.P. 41(e); See People v. Stevens, Colo., 517 P.2d 1336.
Having concluded that the defendant has standing to contest the validity of the entry into the apartment and the subsequent search, and that he has not waived the objection, we now turn to the issue of the lawfulness of that entry and search. If this original entry was illegal, the observation of contraband in plain view is likewise illegal. See People v. Boorem, Colo., 519 P.2d 939. However, we agree with the People's contention that they have never had the opportunity to present all evidence available to them to demonstrate whether such entry, as it relates to this defendant, was reasonable and lawful. Furthermore, no specific finding of fact was made on this question by the trial court. Under such circumstances the cause must be remanded to that court for the purpose of conducting an evidentiary hearing on the issue of the lawfulness of the original entry by the police officer into the apartment and the subsequent search, as applied to this defendant, and for specific findings of fact and a conclusion thereon. See People v. Martinez, Colo., 523 P.2d 1405.
Accordingly, the cause is remanded for such further proceedings by the trial court as are necessary to enable it to make the required findings of fact. If the court finds the entry and search to have been lawful, the conviction is affirmed, subject to the right of the defendant to appeal that finding. If, on the other hand, the court finds the entry and search illegal, the conviction is reversed and the trial court is directed to order a new trial. See People v. Noreen, 181 Colo. 327, 509 P.2d 313.
RULAND, J., concurs.
VAN CISE, J., dissents.
VAN CISE, Judge (dissenting):
I would affirm the judgment.
On appeal, for the first time, defendant contends that the police officer's initial entry into apartment 101 was unlawful, that for that reason none of the observations made therein could be used to establish probable cause for the issuance of a search warrant, and that any evidence seized thereunder should have been suppressed.
The People assert that since Dupree defended by disclaiming both a present possessory interest in the premises searched and any interest in the contraband seized, and thereby denying that he was personally aggrieved by the entry, he lacks standing to raise the issue of the legality of the entry. I agree.
In contrast to the majority, I find the reasoning of People v. Towers, 176 Colo. 295, 490 P.2d 302, controlling here. In that case, the defendant, charged with dispensing and possession of narcotics, moved prior to trial to suppress the narcotics which had been seized from a dormitory room. At the suppression hearing, defendant disclaimed any interest in the narcotics seized. Additionally, he neither claimed nor had a possessory interest in the dormitory room which was searched. The Colorado Supreme Court concluded that standing to raise objections to a search and seizure cannot be asserted after the defendant, in the suppression hearing, has denied any possessory interest and has made no contrary assertion at the trial.
The same result was reached in Williams v. United States, 323 F.2d 90 (10th Cir.), cert. denied, 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605. In that case, throughout the proceedings the defendants expressly disclaimed any interest in any of the articles seized which were incriminating. The court ruled:
'It is well established in this circuit, and elsewhere, that the right to protection against unreasonable search and seizure is personal, and a defendant in a criminal case who claims no proprietary or possessory interest in the seized property has no standing to object to the method of seizure.'
See also Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.
Here, defendant at the trial chose to stand on his disclaimer of any possessory interest in the contraband seized and in the premises searched. That his trial strategy was unsuccessful is no ground for reversal now. See People v. Jiminez, Colo., 528 P.2d 913; Neighbors v. People, 171 Colo. 349, 467 P.2d 804. Under these circumstances, the defendant cannot now claim a possessory interest, and therefore standing to raise the issue, in direct contradiction to his own trial testimony.
Furthermore, it has not been asserted that the police officer was searching for evidence or for the fruits or instrumentalities of a crime when he made his original entry into apartment 101, nor would the record support such a claim.
At the time of his first entry, the officer, on the basis of the information set out above, had a reasonable belief that it might be necessary to take the child to a welfare agency. His avowed purpose was to get clothing for the child to act on that belief.
Under the exigency of the child's situation, the officer's initial entry through the open door into apartment 101 was a reasonable action in exercise of the legitimate purpose to carry out his responsibilities to protect the child. See Blincoe v. People, 178 Colo. 34, 494 P.2d 1285; People v. Godinas, 176 Colo. 391, 490 P.2d 945. Hence, the entry was proper and lawful under the circumstances. See People v. Gurule, 172 Colo. 159, 471 P.2d 413. I see no need for remanding this cause for further hearing on this issue.