Opinion
No. 81SA107
Decided July 20, 1981.
Interlocutory Appeal from the District Court of Pueblo County, Honorable Richard D. Robb, Judge.
Gus F. Sandstrom, Jr., District Attorney, Michael S. Kupecz, Deputy, for plaintiff-appellant.
Greg Walta, State Public Defender, Alex J. Martinez, Deputy, for defendant-appellee.
En Banc.
In this second interlocutory appeal, the People challenge the ruling of the district court suppressing as evidence a high school graduation ring and a Kodak 110 pocket-size camera seized from the defendant's apartment in Pueblo, Colorado, on December 24, 1979, during a search pursuant to warrant. We reverse.
These same items had been the subject of a prior suppression order appealed to this court in People v. Torand, 622 P.2d 562 (Colo. 1981). There, the district judge had concluded that the police obtained knowledge of the evidence at issue in an illegal manner by exceeding the scope of a consent search of the defendant's apartment. In resolving the first interlocutory appeal, we reversed the trial court and remanded with directions to determine the defendant's motion to suppress in accordance with appropriate standards governing consent searches and plain view discoveries.
An extensive discussion of the underlying facts in this case is set forth in People v. Torand, supra.
We noted in People v. Torand, supra, that during the police search of the defendant's premises, conducted as a result of his limited consent, after having discovered a shotgun which the officers had good reason to believe was stolen in a recent burglary, one of the officers came upon an open shaving kit in the bathroom. He there saw and temporarily removed a high school ring with certain identifying inscriptions that subsequently connected the defendant to another crime. Neither the ring nor the 110 camera was removed from the premises at the time of the initial search. They were seized later after police knowledge of their location helped support probable cause for issuance of a search warrant. The test to be applied on remand was set forth as follows:
"If the police officers' observations of the Kodak 110 camera and the high school ring were validly made during that phase of the search directed to the discovery of the articles within the scope of the defendant's consent, those observations could be utilized to support the issuance of a search warrant for those articles. On the other hand, if these observations took place after the discovery of the two articles for which the consent to search was given, or if these observations were made in a manner that exceeded the scope of that consent, then these observations would be rendered invalid as the product of an illegal search." (Footnote omitted.) Id. at ___, 622 P.2d at 567.
In the suppression hearing on remand, the trial court found that a Pentax camera, which was one of the articles within the scope of the defendant's consent, had not yet been found at the time the police observed the class ring in a shaving kit and at the time the 110 camera was placed on a dresser "where it remained during the course of the search." The trial court also found that upon looking into the shaving kit the investigating officer saw no Pentax camera, but that "he did see a quantity of jewelry which he described as two hands full, being both mens [sic] and womens [sic] jewelry." He took the kit into another room where, looking through the jewelry, he took out the ring in question.
In People v. Torand, supra, n. 4, we noted that at the first suppression hearing there was testimony that knowledge of the 110 camera was acquired prior to the discovery of the Pentax camera. The defendant, in his present brief, concedes that both the ring and 110 camera were observed before the Pentax camera was located.
Based upon these findings, the trial court concluded that the police search of the shaving kit and an officer's superficial inspection of the class ring, after physically removing it from the shaving kit, exceeded the scope of defendant's consent because the ring had no connection with the items which were the immediate objects of the consent search and because the ring constituted evidence of other criminal activity yet to be linked directly to the defendant. Once having concluded that an unlawful search and seizure of the class ring formed the basis for the issuance of the search warrant, the trial court suppressed the ring and, as "fruit of the poisonous tree," the 110 camera.
In People v. Torand, supra, we set out in some detail the standards governing consent searches and plain view discoveries. We noted that while in consent searches, such as the one here, "the search must be restricted to those objects and areas which are likely to contain the articles sought," the police are not expected to close their eyes to an article plainly visible merely because its incriminating character is not presently apparent to them.
The "central inquiry" on remand in this case was whether the observation of the contents of the shaving kit and the 110 camera was made before or after the Pentax camera was located. People v. Torand, supra, 622 P.2d at 566. Once the trial court found that the Pentax camera was not located until after the ring and 110 camera were already observed, in light of the nature of the specific crime of burglary under immediate investigation and the police officer's very limited inspection of the class ring at issue, it follows that such observations could properly be utilized to support the issuance of a search warrant. A reasonable suspicion short of probable cause will justify the superficial scrutiny of an object seen in plain view during the course of a valid search of a defendant's premises. State v. Vaster, 24 Wash.App. 405, 601 P.2d 1292 (1979); State v. Driscoll, 137 Vt. 89, 400 A.2d 971(1979); State v. Glover, 60 Ohio App.2d 283, 396 N.E.2d 1064, 14 Ohio Op. 3d 253 (1978); State v. Proctor, 12 Wash. App. 274, 529 P.2d 472 (1974); State v. Sagner, 12 Or. App. 459, 506 P.2d 510 (1973); State v. Cernohous, 295 Minn. 491, 205 N.W.2d 680 (1973). 2 W. LaFave, Search and Seizure, §§ 4.11(c), 6.7(b) (1978), § 8.1(c) (1981 Supp.); 1 W. Ringel, Searches and Seizures, Arrests and Confessions, § 6.5(a)(1) (2d ed. 1980).
The ruling is reversed.
JUSTICE DUBOFSKY concurs in part and dissents in part.
JUSTICE ERICKSON and JUSTICE QUINN dissent.