People v. Billington, 26418

• Decision Date: 26 July 1976
• Docket Number: No. 26418,26418
• Citation: 552 P.2d 500,191 Colo. 323
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold M. BILLINGTON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 500

552 P.2d 500

191 Colo. 323

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold M. BILLINGTON, Defendant-Appellant.

No. 26418.

Supreme Court of Colorado, En Banc.

July 26, 1976.

John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., James W. Wilson, Lynne M. Ford, Assistant Attys., Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Forrest W. Lewis, Deputy State Public Defenders, Denver, for defendant-appellant.

LEE, Justice.

Defendant Harold M. Billington appeals his conviction of second-degree forgery, in violation of 1971 Perm.Supp., C.R.S.1963, 40--5--103. ¹ We affirm the conviction.

Diamond J. Productions was a small film company organized to initially make a film about the town of Cripple Creek, Colorado. Two of its members, Bart Johnson and Don Vickery, were authorized to sign checks on the firm's account, both signatures being required. Defendant, though not a member of the firm, had been writing a script for the film.

After returning from a vacation, Johnson learned that a check written on the account had been returned for insufficient funds. He made immediate inquiry at the local bank and found that eight unauthorized checks totalling $436.97 had been drawn on the account, five payable to Billington, the remaining three to local businesses. All eight bore what appeared to be, but were in fact not, the signatures of Johnson and Vickery. Johnson promptly filed a complaint with the police.

At the time of his arrest, defendant denied any wrongdoing. He gave written consent to the police chief and Don Vickery to enter his hotel room to recover certain papers 'that belong to (Vickery) pertaining to (the) show we are producing.' Once inside the room, the officer took a bundle of papers which apparently belonged to Vickery and to the company. Among the papers were three check stubs which corresponded to the checks allegedly forged; and also there were some sheets of paper with the letters 'B' and 'J,' and the name 'Bart' written on them by defendant. The foregoing items, over objection, were admitted into evidence at trial.

Defendant was charged with eight counts of second-degree forgery. He took the stand in his own defense. He admitted signing Johnson's and Vickery's names on the checks in question, but stated that he had been authorized to do so for business purposes, including a trip to Denver to do some research, payment for a car battery and battery cable, and entertainment. Defendant claimed that Johnson and Vickery had encouraged him to make his imitations of their signatures look as realistic as possible so that jealousies would not arise among other firm members, none of whom had been given like authority to sign Johnson's or Vickery's names to checks. Both Johnson and Vickery, however, denied ever granting any such authority.

Defendant was found guilty on count seven, not guilty on count six, and the jury could not agree on the remaining counts. Count seven related to a check for thirty dollars, made out to the order of defendant, the proceeds of which were spent, according to defendant, for 'drinking with after a party at Vickery's residence.

I.

Defendant's first argument for reversal is that the check stubs and sheets of paper taken from his hotel room were erroneously admitted into evidence in violation of his right to be free of unreasonable searches and seizures.

It is clear that no warrant need be obtained in order for police to make a search where consent thereto, in light of the totality of the circumstances, has been freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; People v. Benner, 187 Colo. 309, 530 P.2d 964; Capps v. People, 162 Colo. 323, 426 P.2d 189. And the burden is on the People to show that valid consent to search was given. People v. Hancock, 186 Colo. 30, 525 P.2d 435. However, a defendant may limit the scope of his consent, and when this occurs the police must likewise limit the scope of their search unless they properly procure a warrant authorizing a broader search. Honig v. United States, 208 F.2d 916 (8th Cir. 1953); People v. Superior Court of Los Angeles, 10 Cal.App.3d 122, 89 Cal.Rptr. 316; State v. Johnson, 71 Wash.2d 239, 427 P.2d 705.

The consent form signed by defendant was limited in scope. It read as follows:

'I Harold Billington do give Chief James D. Lindsey and Don Vickery permission to enter my room at the Palace Hotel and recover scrip (sic) and papers that belong to him pertaining to show we are producing.'

At trial, defendant consistent with the wording of this form, insisted that he never gave anyone permission to search the room generally; and that he told Vickery exactly how the room was designed and where he would find the papers; and that it would be easy to find them.

The record does not support the conclusion that a general search was conducted. Rather, the officer found and took only the bundle of papers to headquarters where they were then examined. It was then discovered that the papers contained the check stubs and sheets of paper in question. Under these circumstances, we find no violation of the consent to search. Upon examination of the papers recovered, in our view, the officer was not required to close his eyes to the incriminating evidence plainly visible to him.

It is clear that had the officer made this examination of the papers in the hotel room prior to recovering the script he would, under the plain view rule, have been entitled to seize the check stubs and sheets of paper in question as he came across them. Repeated decisions of the United States Supreme Court and of this court make clear that once legitimately on the premises officers are not required to close their eyes to incriminating evidence plainly visible to them. See, e.g., Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; People v. Renfrow, 172 Colo. 399, 473 P.2d 957.

Under the plain view rule, since the officer would have been entitled to seize the check stubs and sheets of paper at the time of the search, we hold that the...