People v. Barndt, 79SA345

• Citation: 199 Colo. 51,604 P.2d 1173
• Decision Date: 07 January 1980
• Docket Number: No. 79SA345,79SA345
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert David BARNDT, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 1173

604 P.2d 1173

199 Colo. 51

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert David BARNDT, Defendant-Appellee.

No. 79SA345.

Supreme Court of Colorado, En Banc.

Jan. 7, 1980.

Robert L. Russel, Dist. Atty., John W. Suthers, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Simons & Iuppa, Barney Iuppa, Jr., Colorado Springs, for defendant-appellee.

GROVES, Justice.

The People bring this interlocutory appeal from an order by the El Paso County District Court suppressing evidence seized in connection with the defendant's arrest for possession and sale of narcotics and dangerous drugs. The trial court ruled that a prior unlawful search of the defendant's house by police officers had tainted the later seizure with illegality and that the conduct was severe enough to require suppression of the seized evidence, even though the later seizure had been pursuant to a warrant. We affirm the ruling in part and reverse the ruling in part.

Testimony at the suppression hearing revealed the following facts. The seizure of the evidence resulted from three drug purchases made by a Colorado Springs police officer working undercover. The seller was Rourk Rock Reisfelt, who was initially a co-defendant with defendant Robert David Barndt, but whose case was later severed from this action. Reisfelt twice sold suspected hashish and once suspected cocaine to the undercover agent. The transactions followed a pattern: the police officer would drive Reisfelt to the block on which the defendant lived; Reisfelt would go into the defendant's house and come out with the contraband; he would then sell it to the officer. Reisfelt was arrested after the third transaction. He cooperated with the police, waived his Miranda rights, and told them that he had purchased the contraband from a man named "Bob", whom he described and who, he said, lived alone, and was presently alone, in the house which he had just left after obtaining the drugs for sale to the officers.

Two undercover officers approached the house, knocked on the door, and were greeted by the defendant, who matched Reisfelt's description of Bob. During the initial, brief conversation, the defendant remained behind a closed screen door. After showing him their police credentials and guns, the officers placed him under arrest and told him to come outside the house. The defendant did so, and pulled the front door shut behind him, apparently automatically locking it. About this time members of an accompanying surveillance team of police officers came onto the porch. One officer immediately kicked open the locked door. Several officers entered the house and walked through it, looking in all the rooms and closets. The officers testified that they conducted this type of search to "secure" the house, that is, to discover any other person who might harm the officers or destroy possible evidence. They also testified that this was normal, standard procedure. While in the house they saw, but did not seize, what they suspected to be marijuana and cocaine. This is referred to as the first search.

Finding no one in the house, the officers locked the back door and positioned one officer as guard at the front of the house. The other officers took the defendant and left the house so as to obtain a search warrant.

Approximately three hours later, armed with a search warrant, officers searched the premises and seized drugs and drug paraphernalia, some of which had not been seen during the initial search. This is referred to as the second search.

The trial court concluded in its order to suppress that probable cause had existed both to arrest the defendant and to obtain the warrant to search his house. The court, however, questioned the constitutionality of both searches. ¹ The court ruled that the first search was illegal for the reason that no exigent circumstances existed to justify and thereby to render reasonable the police conduct which the court concluded was constitutionally excessive. With this we agree. It further ruled that the second search was also unlawful as it was tainted by the illegality of the first search, and that the taint was not removed by the properly acquired search warrant. With this we disagree.

The trial court made the following findings with respect to the character and purpose of the first search:

"The officers claim, and the Court finds in the absence of any contradictory evidence, that they did just walk through the house and conducted a quick search consistent with the declared purpose, namely that of looking only for other persons who might have been inside and that they looked only in rooms and closets large enough to house a person, and that they did not conduct a detailed search through drawers, cupboards and similar storage places. During the course of the walk they had been through, they observed various suspected drugs in plain view on a shelf in one closet, on a table top, under a table, and in a box or bag on the floor in one room."

I

We first address the issue of whether the first search of defendant's house was lawful.

The People contend that the circumstances surrounding the defendant's arrest for drug offenses allowed, and even required, the police to search the house for third persons who might harm officers on the premises or destroy possible evidence yet to be seized pursuant to a warrant. They claim that because of these dangers present at every drug-trafficking arrest, and because the defendant had already made an effort to conceal his house from the police by locking the door, the cursory search for third persons was more than reasonable. The People disagree with the court's assessment that the police had no reason to believe that anyone other than the defendant was in the house. They cite their lack of corroboration of Reisfelt's statement that the defendant was alone and their lack of familiarity with Reisfelt as an accurate observer.

The People also argue that past decisions of this court ² recognizing the illegality of most warrantless evidentiary searches should be distinguished from security searches for people. They contend that because the search was merely to secure the premises and themselves from other persons, and because it was not done to observe or seize evidence, it was not unreasonable, and should not be declared unlawful.

Exigent circumstances allow immediate, warrantless searches and seizures when it reasonably appears that evidence may be removed or destroyed by a third party before it can be secured by the police. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Clark, 37 Colo.App. 188, 547 P.2d 267 (1976); People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974). The defendant contends, and the trial court ruled, that the facts of this case do not substantiate such a fear on the part of the police of the presence of third persons. We agree. There were no indications of a third party who could do damage either to fellow officers or to possible evidence.

Furthermore, as the trial court noted, the police described searches such as the one here as "just normal procedure" and "standard Procedure . . . to make sure there is (sic) no other persons in the residence." While exigent circumstances do allow warrantless searches, they are the exception, not the rule. The circumstances must be extraordinary. Mere incantation of the phrase, "exigent circumstances," will not automatically validate a warrantless search. In the instant case, it is inconsistent to describe on the one hand the search as standard procedure and then on the other hand to claim that exigent circumstances necessitated this particular search. We do not agree with the People's contention that all drug arrests give rise to exigent circumstances thereby permitting warrantless, "security" searches. The trial court correctly ruled this search illegal. As a result, all contraband discovered during that search must be suppressed.

II

Being of the opinion that the first search was unlawful, we must decide whether its illegality tainted the second search so as also to render it unlawful and cause the evidence discovered for the first time during the second search to be excluded under the "fruit of the poisonous tree" doctrine. ³

The People argue that the second search and resulting seizure were lawful as they were authorized by a search warrant properly issued on the basis of probable cause established within the four corners of the affidavit, and that the affidavit did not refer to any information gained by the police officers during their first search. Therefore, the People argue, because the affidavit did not include any information from the first search, there was embodied in the warrant no "fruit" of the "poisonous tree", and hence, the evidence should not be excluded.

The People also contend that the trial court, by attempting to distinguish People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973), from the facts of this case, erred in ruling that the second search was illegal. They urge us not to abandon the Hannah rule that a search is valid if it is executed pursuant to a warrant issued on the basis of information lawfully obtained and independently sufficient to establish probable cause. In Hannah, as here, there had been an unlawful search of the defendant's premises, but it had been done independently by officers different from and without the knowledge of the officers who sought and obtained a valid search warrant. We there held that, because the facts and information on which the warrant was predicated did not include any information derived from the illegal search, there was no taint of illegality on the second warrant search and, therefore, the evidence seized under the search warrant should not be suppressed. We continue to adhere to Hannah.

Apparently the trial court suppressed the evidence obtained in the second search out of a concern that illegal police...