706 P.2d 411 (Colo. 1985), 84SA331, People v. Bertine

Docket Nº:84SA331.
Citation:706 P.2d 411
Opinion Judge:ERICKSON, Justice.
Party Name:The PEOPLE of the State of Colorado, County of Boulder, Plaintiff-Appellant, v. Steven Lee BERTINE, Defendant-Appellee.
Attorney:Alexander M. Hunter, Dist. Atty., John M. Haried, Richard F. Good, Deputy Dist. Attys., Boulder, for plaintiff-appellant., David F. Vela, Colorado State Public Defender, Cary C. Lacklen, Deputy State Public Defender, Denver, for defendant-appellee. Alexander M. Hunter, Dist. Atty., John M. Harie...
Case Date:September 30, 1985
Court:Supreme Court of Colorado

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706 P.2d 411 (Colo. 1985)

The PEOPLE of the State of Colorado, County of Boulder, Plaintiff-Appellant,


Steven Lee BERTINE, Defendant-Appellee.

No. 84SA331.

Supreme Court of Colorado, En Banc

September 30, 1985

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 479 U.S. 367.

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 479 U.S. 367

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Alexander M. Hunter, Dist. Atty., John M. Haried, Richard F. Good, Deputy Dist. Attys., Boulder, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Cary C. Lacklen, Deputy State Public Defender, Denver, for defendant-appellee.

ERICKSON, Justice.

The district attorney filed this interlocutory appeal after the district court granted a defense motion to suppress evidence seized from the defendant's backpack during an automobile inventory search. We affirm.


At approximately 12:50 a.m. on February 10, 1984, Officer Julius Toporek (Toporek) of the Boulder Police Department observed the defendant's older model panel truck traveling at a high rate of speed. Toporek followed the vehicle and saw the defendant change lanes several times without signalling. By following the defendant's vehicle and maintaining a constant distance, Toporek estimated the vehicle's speed at approximately fifty to fifty-five miles per hour. The posted speed limit was thirty miles per hour. Toporek then turned on his overhead lights and stopped the vehicle.

Toporek approached the vehicle and asked the driver, Steven Lee Bertine (defendant), for his driver's license and registration. The defendant and his dog were the only occupants in the vehicle. In talking to the defendant, Toporek detected a strong odor of an alcoholic beverage on the defendant's breath. He also noticed that the defendant's eyes were watery and glassy, and that the defendant's speech was slurred and somewhat dragged out. Based upon his observations, Toporek believed that the defendant was driving while under the influence of alcohol.

Toporek asked the defendant to perform a series of roadside sobriety tests. The defendant complied with the request and completed the tests. Toporek concluded, based on his observations, that defendant was intoxicated and advised the defendant that he was under arrest for an alcohol-related offense.

After taking the defendant into custody, Toporek asked Officer Reichenback (Reichenback), who had arrived as a backup officer, to impound the defendant's vehicle. Subsections 7-7-2(a)(1) and 7-7-2(a)(4) of the Boulder Revised Code authorize police officers to impound vehicles when drivers are taken into custody or when a vehicle obstructs traffic or creates a traffic hazard. 1 In the course of impounding the vehicle,

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Reichenback radioed an animal control unit to remove the defendant's dog. After the dog was removed, Reichenback requested a tow truck.

Before the tow truck arrived, Reichenback made an inventory of the items found in the vehicle in accordance with Boulder police procedure, 2 and listed jumper cables, a tire, a shovel, and some sandbags. Reichenback also discovered a closed backpack directly behind the front seat and made a detailed inventory of the contents of the backpack. The officer first unzipped the main compartment where he found, among other items, a separate, zippered nylon bag. He then unzipped the nylon bag and found three tin cans and an "Irish Mocha Mint" coffee can, all secured with covers. The officer opened the coffee cans and found the contraband in issue. The property report documenting the contents of the backpack reflects that one of the tin cans contained cocaine paraphernalia, another contained bindles of cocaine, and the third contained $700 in cash, all in twenty-dollar bills. The coffee can contained more bindles of cocaine and a number of tablets in a zip-lock bag. After the inventory was completed, a private tow-truck company towed the defendant's vehicle to its impound lot.

Defendant asserted a number of grounds for suppression of the evidence seized in the inventory search. He argued that Toporek did not have sufficient grounds to make a stop, that there was no probable cause for his arrest, and that the impoundment and inventory were not conducted in accordance with standard procedure. He also claimed that the inventory was merely a pretext for a warrantless investigatory search. Finally, he asserted that the police officers exceeded the constitutional limits of a proper inventory search by examining the inside of the backpack, when the purposes for the search could have been achieved by less intrusive means, such as sealing the car doors with evidence tape or removing the backpack and listing it as one sealed unit.

Following the suppression hearing, the trial court found that the police had probable cause to make the initial stop, to administer the roadside sobriety tests, and to arrest the defendant. The trial court also found that the officers followed standard police procedures when they impounded the vehicle and conducted a detailed inventory search of its contents. The trial court rejected defendant's contentions that the police conducted the search in bad faith and that the inventory search was a pretext for an investigatory search.

In reviewing the scope of the search, the trial court relied on Illinois v. Lafayette,

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462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and concluded that the search was reasonable under the fourth amendment to the United States Constitution. However, because of People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976), the trial court held that the search violated article II, section 7 of the Colorado Constitution. It is from this ruling that the prosecution appeals.


The fourth amendment safeguards an individual from an unreasonable governmental invasion of his privacy. Because of the important role that a search warrant plays in protecting fourth amendment liberties, the Supreme Court has held that searches conducted without a warrant are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ); Chimel v. California, 395 U.S. 752, 759, 89 S.Ct. 2034, 2038, 23 L.Ed.2d 685 (1969).

The Supreme Court first recognized the inventory exception to the warrant requirement in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In Opperman, the police impounded the defendant's unoccupied automobile after two parking tickets were issued charging that the car was parked in a restricted zone. At the impound lot, a police officer observed a watch on the dashboard and other items of personal property in plain view on the back seat and floorboard. Following routine procedure, the officer inventoried the contents of the automobile and discovered a plastic bag of marijuana in the unlocked glove compartment.

In upholding the search, the Supreme Court established the balancing test weighing the legitimate governmental interests advanced by the search against the invasion of privacy which the search entailed. The Court pointed out that an individual possesses a diminished expectation of privacy in an automobile because of the public nature of automobile travel and because automobiles, unlike homes or offices, are subject to pervasive governmental regulation and inspection. 428 U.S. at 367-68, 96 S.Ct. at 3096. Balanced against this diminished expectation of privacy, the Court weighed three governmental interests served by an inventory search: (1) the protection of the owner's property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. Id. at 369, 96 S.Ct. at 3097.

Based on the facts in Opperman, the Court concluded that the warrantless inventory search of the glove compartment did not violate the fourth amendment. The Court specifically emphasized that the defendant was unavailable to make other arrangements for the safekeeping of his belongings, and that the search was prompted by the presence of a number of valuables in plain view inside the vehicle. Id. at 375-76, 96 S.Ct. at 3100. Cf. South Dakota v. Opperman, 247 N.W.2d 673 (S.D.1976).

Although Opperman approved of automobile inventories in general, the Court's opinion did not foreclose challenges regarding the permissible scope of such searches. Opperman did not resolve whether law enforcement officers, in the course of an inventory search, could open and examine luggage and other closed containers, which, unlike a glove compartment, have privacy interests that are not diminished in any way. Four dissenters in Opperman stressed: "[T]he Court's opinion does not authorize the inspection of suitcases, boxes or other containers which might themselves be sealed, removed and secured without further intrusion." Id. 428 U.S. at 388 n. 6, 96 S.Ct. at 3106 n. 6 (Marshall, J., dissenting).

Because Opperman did not resolve the container question, courts subsequently looked to Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1,

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97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), for guidance on the issue. Both decisions hold that the fourth amendment required exclusion of evidence seized by police officers in the warrantless search of closed containers found in an automobile. In Chadwick, the Court concluded that the warrantless search of a double-padlocked footlocker could not be justified under the automobile exception to the...

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