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People v. Lucero

Supreme Court of Colorado. En Banc
Apr 19, 1971
174 Colo. 278 (Colo. 1971)

Summary

In Lucero, the trial court found that police "had every reason to believe that the house was a one-family residence," and we upheld the search of the Luceros' specific unit, even though the warrant only provided the general address of the building.

Summary of this case from Dhyne v. People

Opinion

No. 25083.

Decided April 19, 1971.

Interlocutory appeal by defendants from an adverse ruling in trial court on their motion to suppress evidence which they allege was obtained as result of an illegal search and seizure.

Ruling Affirmed.

1. SEARCHES AND SEIZURESConstitutions — United States — Colorado — Search Warrant — Particularly Describe — Place to be Searched. Under the United States and Colorado Constitutions there is a requirement that a warrant particularly describe the place to be searched.

2. Officers — Reason to Believe — One-family Residence — Individual Apartments — Probable Cause — Warrant — House — Address — Valid. Where record reflects that officers had every reason to believe that house was a one-family residence, and they did not learn that house contained individual apartments until they had entered, search was confined to area actually under control of defendants, and affidavit for warrant clearly revealed probable cause for search, held, under the circumstances, search warrant was not fatally defective because it was directed to house at a designated address and not to particular apartment of defendants.

3. ARRESTOfficers — Quarters — Co-defendant — Running — Destroying Evidence — Probable Cause — Not Dependent on Warrant — Seize. Where police officers were legally on their way to defendants' quarters when co-defendant ran past them destroying evidence, held, under the circumstances, police officers had probable cause — which was not dependent on warrant — to seize and arrest co-defendant.

Interlocutory Appeal from the District Court of the City and County of Denver,

Honorable Francis W. Jamison, Judge.

District Judge sitting under assignment by the Chief Justice under provisions of article VI, section 5(3) of the constitution of Colorado.

Jarvis W. Seccombe, District Attorney, Second Judicial District, William O. Perry, Jr., Assistant, Leonard M. Chesler, Chief Deputy, Coleman M. Connolly, Deputy, for plaintiff-appellee.

Ashen and Fogel, Marshall A. Fogel, for defendants-appellants.


This interlocutory appeal is brought by David W. Lucero, Rosalia M. Lucero and Freddie Salazar, hereinafter referred to as the defendants or by name, from an adverse ruling in the trial court on their motion to suppress evidence which they allege was obtained as the result of an illegal search and seizure. We affirm.

The record shows that on the basis of an affidavit containing information received from an informer, detectives of the Denver Police Department obtained a warrant to search the premises at 347 Bannock. The affiant, Detective DeNovellis, also stated in the affidavit that he and another officer had conducted a "sporadic surveillance" of the building. The warrant was served at night, and the officers covered all three of the entrances to the building. DeNovellis and other officers entered through the rear. After the officers entered the premises, it became apparent that the house was divided into two living quarters on the main floor, with a third on the second floor. The quarters in the rear were occupied by Mrs. Lucero's mother. The officers passed through these quarters, making no search, and entered a common laundry room where they encountered defendant Salazar running and attempting to destroy evidence. He was arrested, and the evidence seized. The officers then passed into the Luceros' quarters in the front of the house, seized quantities of contraband drugs, and arrested the two Luceros.

Defendants argue that since this warrant was directed to "347 Bannock," and not to the particular apartment of the Luceros, the warrant was fatally defective as it violates U.S. Const. amend. IV (Fourth Amendment) and Colo. Const. art. II, § 7. These sections require that a warrant particularly describe the place to be searched. It is conceded that the officers only had probable cause to search the Luceros' quarters.

Our recent opinion in People v. Avery, 173 Colo. 315, 478 P.2d 310 (hereinafter cited as Avery), states the general rule of law when dealing with searches made in rooming houses or apartment houses. There the particular search in question was held invalid. This case is distinguishable from Avery in two important respects. First, in Avery, the trial judge made a specific finding that the officers knew or should have known when they got their warrant that the building involved was a rooming house. In this case, the trial court made a finding, supported by the record, that the officers did not know that these were actually individual apartments until they had entered; and also, that they had every reason to believe that the house was a one-family residence.

Second, in Avery the search went beyond the area for which the officers had probable cause on the basis of their affidavit. In this case the only area actually searched was that under the control of the Luceros, and the affidavit clearly reveals probable cause for such a search. We hold that the rule in Avery is subject to an exception, among others, where the officers did not know nor did they have reason to know that they were dealing with a multi-family dwelling when obtaining the warrant, and providing that the confine obtaining the warrant, and providing that they confine the search to the area which was occupied by the person or persons named in the affidavit. For a collection of cases, see Annot., 11 A.L.R.3d 1330, 1334 (§ 8) (1967, Supp. 1970).

As to Salazar, certainly the officers were legally on their way to the Luceros' quarters when he ran past them destroying evidence. This seizure and his arrest were based on probable cause not dependent on the warrant.

The ruling of the trial court is affirmed.

MR. JUSTICE ERICKSON specially concurring.


Summaries of

People v. Lucero

Supreme Court of Colorado. En Banc
Apr 19, 1971
174 Colo. 278 (Colo. 1971)

In Lucero, the trial court found that police "had every reason to believe that the house was a one-family residence," and we upheld the search of the Luceros' specific unit, even though the warrant only provided the general address of the building.

Summary of this case from Dhyne v. People

In People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971), we refined the Avery principle and noted an exception to the rule.

Summary of this case from People v. McGill

identifying an exception to Avery ’s requirement for separate warrants for separate units

Summary of this case from People v. Dhyne
Case details for

People v. Lucero

Case Details

Full title:The People of the State of Colorado v. David W. Lucero, Rosalia M. Lucero…

Court:Supreme Court of Colorado. En Banc

Date published: Apr 19, 1971

Citations

174 Colo. 278 (Colo. 1971)
483 P.2d 968

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