Condon v. People, s. 24554

• Citation: 176 Colo. 212,489 P.2d 1297
• Decision Date: 26 October 1971
• Docket Number: Nos. 24554,24899,s. 24554
• Parties: Rory CONDON and Ruth A. Pahkala, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Timothy SCULLY, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 1297

489 P.2d 1297

176 Colo. 212

Rory CONDON and Ruth A. Pahkala, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Timothy SCULLY, Defendant-Appellant.

Nos. 24554, 24899.

Supreme Court of Colorado, En Banc.

Oct. 26, 1971.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, James D. McKevitt, Dist. Atty., Gregory A. Mueller, Asst. Dist. Atty., Jarvis W. Seccombe Chief Deputy Dist. Atty., Thomas P. Casey, Deputy Dist. Atty., for plaintiff-appellee.

Donald P. MacDonald, Denver, for defendant-appellant.

DONALD P. SMITH, District Judge, ^* delivered the opinion of the Court.

The question of the validity of the search and seizure of evidence involved in these cases is identical in each case, and arises out of precisely the same occurrence. This court has combined thee cases on appeal. Scully is before this court on Interlocutory Appeal from an adverse ruling by the trial court on his motion to suppress this evidence. Condon and Pahkala are before this court on Writ of Error directed to the judgment of the trial court denying their motion to suppress. At their trial, Condon and Pahkala were each convicted of various drug violations and received sentences. A rather thorough examination of the facts involved is necessary for a determination of this issue.

Sometime prior to June, 1968, the defendants rented the premises located at 1050 South Elmira Street, Denver, Colorado, from a real estate agent acting on behalf of the owner, one Mr. Chance. Early in June, 1968, Mr. Chance had occasion to view these premises and noticed the lawn around the house was burned and in need of care. After learning that the water could not be turned on through the outside taps, Mr. Chance went to the house, on June 23, 1968, to turn on the water from inside the house. He decided then to examine the house and, while viewing the back of the house, detected an odor which he thought could be that of a decomposing body coming from the two basement windows. He called the police for assistance and Officers Bott and Kinnard responded. They also detected the odor which they opined could be that of a decomposing dead body and called Sergeant Torsney, who arrived and made the same observation.

A decision was made to enter the house with the permission of Mr. Chance. After trying unsuccessfully to enter the premises with Mr. Chance's key, the police broke in through the glass in the back door. Up to this point, neither Mr. Chance nor the police had nay suspicion that a crime had been committed on the premises and testified that they were not looking for evidence of a crime at this time. The police entered the house at the request of Mr. Chance, whom they instructed to sit in his car, as this was a police matter. Subsequently, however, Mr. Chance returned to the house and heard the police officers walking through upstairs bedrooms and then observed them searching the living room where they discovered a glass which they suspected contained marijuana. The police then searched the hall closet, where they found pipes, which, according to the police, were used to smoke hashish. Finally, the officers searched the basement where they had initially detected the odor of the possible decomposing body and observed several stacks of cases along the west wall. Plastic or rubber hoses were observed leading from the bathroom to two basement rooms which were padlocked. The testimony is in conflict as to whether these locks were broken and the rooms were opened before or after the Vice-Squad was called and responded to the scene, but prior to the arrival of the Vice-Squad the officers expanded their search to the attic and the garage. After the arrival of the Vice-Squad, the two basement rooms were searched and the federal officers were called because of the uncertainty of those present concerning the nature of the chemicals and apparatus discovered in the search. The federal officers advised the detectives that the chemicals could be used to produce mescaline. At This point in time, some hours after the original entry, one of the detectives prepared the necessary affidavits to obtain a search warrant. The search warrant was obtained and the evidence involved in these cases was seized. No decomposing body was ever found, the odor apparently coming from the various chemicals which were found. Three days later the defendants were arrested when they returned to the premises at 1050 South Elmira.

Although several arguments have been advanced by the parties relative to this search and seizure, the decisive issue is whether the odor of a dead body is an emergency in the sense that a policeman or other government official does not need a warrant to enter a private residence to search for the source of that odor. In this regard, the defendants have argued essentially that this was a search that was administrative in nature rather than criminal and that no emergency existed sufficient to justify the warrantless search. The People argue that the odor of a decomposing body is sufficient to justify the police in searching without a warrant, since lives could be in immediate danger under these circumstances. They also argue that because the consent of the owner of the property, Mr. Chance, was obtained, there was no necessity of obtaining a warrant. For reasons which follow, we determine today that detection of an odor which might be that of a decomposing body does not create, In and of itself, an emergency sufficient to justify a warrantless search.

That the search conducted here was administrative in origin is not seriously disputed by the parties. All of the relevant testimony is to the effect that no criminal activity of any kind was suspected at the time of the forcible entry into the residence. The police officers testified only to their concern arising from the possible decomposing body inside and the health hazards attendant thereto. The question then becomes one of the applicable standards to be applied in an administrtive search of this nature.

We stated in Huff v. Police Court of the City of Colorado Springs, Colo., 480 P.2d 561 (1971), a case involving alleged violations of the zoning ordinances of Colorado Springs, that,

'While we do not decide this case on the civil-criminal proceedings distinction urged by the parties, we do note that the strong trend of authority is to afford the protections of criminal procedure to one charged with the violation of a municipal ordinance. See Canon City v. Merris, 137 Colo. 169, 323 P.2d 614; Pickett v. City of Boulder, 144 Colo. 387, 356 P.2d 489; Austin v. City and County of Denver, Colo., 462 P.2d 600; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.'

The language used in the cases dealing with the administrative and criminal procedural distinctions is very similar, and the cases cited in them oftentimes overlap. For example, the guarantees of the Fourth Amendment to the United States Contitution 'against unreasonable searches and seizures' have been applied to both administrative and criminal searches. In Camara v. Municipal Court of San Francisco, 387...