People v. Counterman

• Decision Date: 22 November 1976
• Docket Number: No. 27387,27387
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Terrill Alan COUNTERMAN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 481

556 P.2d 481

192 Colo. 152

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Terrill Alan COUNTERMAN, Defendant-Appellee.

No. 27387.

Supreme Court of Colorado, En Banc.

Nov. 22, 1976.

John F. Healy, Dist. Atty., W. Terry Ruckriegle, Deputy Dist. Atty., Georgetown, for plaintiff-appellant.

L. Don Wyman, Denver, for defendant-appellee.

ERICKSON, Justice.

This interlocutory appeal was taken by the district attorney after the trial court granted the defendant's motion to suppress. We affirm the ruling of the trial court.

The defendant is charged with the felonious possession of cocaine ¹ and with possession of a dangerous drug. ² The charges against the defendant were based on evidence which was seized in the course of an inventory search of the defendant's stationwagon. The defendant was stopped by a Colorado State Patrol Officer for driving 65 miles per hour in a 55 mile per hour zone. Because of the defendant's belligerent conduct at the time he was stopped, the officer contacted the Colorado State Patrol and learned that the defendant was wanted on a felony fraud by check charge. The officer radioed for assistance and then arrested and jailed the defendant. The officer also ordered the stationwagon towed to a nearby gas station. After the defendant was jailed, the stationwagon was searched and an inventory was made.

A knapsack was discovered inside the car. The knapsack was admittedly tied shut. The officer untied the knapsack and rummaged through the contents until he discovered the drugs, which provided the basis for the charges in this case.

At the evidentiary hearing, the officer testified that the purpose of an inventory search is to protect the personal property and possessions of the owner or occupant of the vehicle and also to protect the police officers against spurious claims by the owner or occupant of theft from the vehicle when the vehicle is taken into custody.

The contraband or drugs seized were not in plain view. Moreover, it is not asserted that probable cause existed for the search because it is conceded that the search was for inventory purposes only. Compare People v. Lorio, Colo., 546 P.2d 1254 (1976) (no claim of inventory purpose and no exigent circumstances to excuse a warrantless search). No claim is made that it was a search incident to an arrest. The sole issue is the limit that is to be placed on an inventory search.

We note first that the validity of the examination of the contents of the knapsack in this case is measured by the constraints of the Fourth Amendment and Colo.Const. art. II, sec. 7. The owner clearly had an expectation of privacy with regard to his sealed knapsack which was sufficient to invoke constitutional protections against unreasonable police intrusion. See South Dakota v. Opperman, --- U.S. ---, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). ³

The validity of inventory searches, when constrained within the limits of 'reasonableness,' has consistently been upheld by this court. See People v. Roddy, 188 Colo. 55, 532 P.2d 958 (1975); People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973). The key issue underlying the concept of inventory searches of automobiles is what limits mark the boundaries of 'reasonableness' in this context. See South Dakota v. Opperman, supra, citing People v. Trusty, supra.

A review of our prior decisions indicates limits upon the scope of an inventory search. In People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974), the police officer opened the trunk of a vehicle and began to rummage through a flight bag. We held that:

'(I)f while engaged in such (a 'caretaking') activity they discover Evidence in 'plain view,' it need not be excluded at a subsequent trial. People v. Trusty, supra.

'In this case, however, the evidence seized was not in 'plain view.' It was found within a zippered compartment within a closed flight bag. To discover this evidence it was necessary to enter a constitutionally protected area of privacy without a warrant and without probable cause. This is an unreasonable search under the Fourth Amendment. . . .

'Under the facts of this case, where the vehicle being searched was in an impound lot which was fenced and patrolled by dogs, an inventory search must be limited to those items in plain view in the automobile.' (Emphasis added.)

In People v. Trusty, supra, a police officer unlocked the trunk of a properly impounded automobile and discovered a dead body. We there held:

'We find the trial court's reliance on Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971), misplaced. The facts of that case are dissimilar to this case in that Mozzetti involved items of evidence Containeed within a satchel located in the back seat of an automobile, not within 'plain view.' Here, the dead body was within plain view in the open trunk.' (Emphasis added.)

Most recently, in People v. Roddy, supra, an inventory search was approved in which we held:

'In plain view were a gun case and a bank money bag lying on the floor on the driver's side half way between the seat and the pedals. Officer Spickard opened the gun case In order to record the gun's registration number and opened the bank bag to determine whether it contained money, and if so, to count it. Instead of finding money, Officer Spickard found what he believed to be a quantity of marijuana. Officer Spickard continued the inventory procedure during which he located a bottle of white tablets in the Unlocked glove compartment. These tablets were later determined to be amphetamines. The officer gathered numerous objects from the rear seat of the vehicle including a leather coat labeled with the defendant's name. While checking the coat pockets for valuables, Officer Spickard discovered marijuana debris. The final step of the inventory procedure was to Check the trunk to determine whether there was a spare rim and tire and to list any other items of personal property. When Officer Spickard opened the trunk of the automobile he observed an Open grocery bag containing marijuana.' (Emphasis added.)

In South Dakota v. Opperman, supra, the Supreme Court of the United States recently upheld an inventory search in which the following factors were present: (1) the owner was not available to make other arrangements for the safekeeping of his possessions inside the automobile, (2) the police officer's search was prompted by the presence of a watch lying upon the dashboard of the car and other valuables in plain view inside the vehicle, (3) the glove compartment in which contraband was found was unlocked. The Court summarized the basis for its holding:

'(O)nce the policeman was lawfully inside the car to secure the personal property in plain view, it was not unreasonable to open the unlocked glove compartment, to which vandals would have ready and unobstructed access once inside the car.'

The trial judge, in this case, in granting the motion to suppress, relied upon the following language in Mozzetti v. Superior Court, supra (Burke, J. concurring):

'As pointed out in the numerous Court of Appeal cases cited by the majority, the routine practice of making such inventory inspections is reasonably necessary to safeguard the owner's property from loss or damage, and to protect the police and storage bailee from unfounded claims. Although, as the majority point out, the foregoing considerations do not furnish the police an excuse for rummaging through closed suitcases or sealed packages, the police do have the authority, and indeed the responsibility, to inspect and inventory all items of personal property in plain sight within the vehicle and, if necessary to lock these items in the trunk or transfer them to some other secure place for safekeeping.' (Emphasis added by the trial court.)

In order to define the parameters of 'reasonableness' in this area, principles must be articulated which encompass these results and which provide some guidance for lower courts.

While cognizant of the axiom that '(t)he test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts,' Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (Black, J., concurring and...