People v. Bischofberger

• Decision Date: 02 September 1986
• Docket Number: No. 85SA424,85SA424
• Citation: 724 P.2d 660
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Michael BISCHOFBERGER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 660

724 P.2d 660

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Michael BISCHOFBERGER, Defendant-Appellee.

No. 85SA424.

Supreme Court of Colorado,

En Banc.

Sept. 2, 1986.

Robert R. Gallagher, Jr., Dist. Atty., Catherine P. Adkisson, Chief Deputy Dist. Atty., Littleton, for plaintiff-appellant.

Bruce P. Fierst, P.C., Bruce P. Fierst, Denver, for defendant-appellee.

QUINN, Chief Justice.

The People, pursuant to C.A.R. 4.1, challenge a ruling of the district court suppressing cocaine located in a container seized during a search incident to the arrest of the defendant, Robert Michael Bischofberger. The district court, concluding that the defendant had a reasonable expectation of privacy in the container in which the cocaine was encased, held that the seizure of the cocaine from the defendant's person and the examination of its contents violated the Fourth Amendment to the United States Constitution. We reverse the suppression ruling as based on an incorrect legal standard with respect to the scope of a search incident to a lawful custodial arrest.

I.

On January 27, 1985, Officer James Beuthel of the Aurora Police Department observed the defendant's automobile in the parking lot of a restaurant on South Parker Road in Aurora, Colorado. Officer Beuthel, who knew the defendant personally, had previously been informed by another officer that two warrants for the defendant's arrest had been issued by the Aurora Municipal Court as a result of the defendant's failure to appear on traffic charges. Upon observing the defendant's automobile, Officer Beuthel confirmed by computer check that the arrest warrants were still outstanding. The officer then radioed for assistance, and Officer Craig Piel responded to the scene.

As the defendant was leaving the restaurant and walking to his vehicle, the officers placed him under arrest, handcuffed him, and conducted a search of his person incident to the arrest. In the course of the search, Officer Piel removed a small, light blue cylindrical container, similar in size to a can of Skoal tobacco, from the defendant's shirt pocket and handed it to Officer Beuthel. Upon opening the container, Officer Beuthel saw a white powder inside and asked the defendant if it was cocaine. The defendant stated that it was. ¹ The defendant was taken to the station house where he was placed in a holding cell while a field test of the white powder was conducted. The field test was positive for cocaine, and the defendant was subsequently charged with possession of a schedule II controlled substance. ²

The defendant filed a motion to suppress the cocaine, claiming that the search conducted by the officers exceeded the constitutionally permissible scope of a search incident to a lawful arrest. The district court determined that the officers had probable cause to arrest the defendant as a result of the outstanding arrest warrants, but held that the permissible scope of any search at the scene of the arrest was limited to a pat-down of the defendant's person in order to determine whether he was carrying a weapon. Although the district court was unable to determine whether the officers seized the container as part of a pat-down search, it concluded that the examination of the contents of the container at the scene of the arrest was in the nature of an inventory search and, as such, was violative of the Fourth Amendment to the United States Constitution. The district court accordingly suppressed the cocaine as evidence.

In urging reversal of the suppression ruling, the People argue that the cocaine was discovered in the course of a search incident to a valid custodial arrest of the defendant. ³ We conclude that the district court applied an unduly restrictive and erroneous standard in ruling that the Fourth Amendment only permitted a pat-down search of the defendant for a weapon, rather than a full search of the defendant's person and the examination of the contents of the container seized from his person as incident to a valid custodial arrest.

II.

Since the district court expressly based its suppression ruling on the Fourth Amendment to the United States Constitution, the analytical basis for our resolution of this case must be those federal standards relating to a search incident to a lawful custodial arrest. ⁴ While several prior decisions of this court have construed the Fourth Amendment to limit the scope of a permissible search when a person is subjected to a lawful custodial arrest for a traffic offense or ordinance violation, these holdings are no longer controlling in light of subsequent decisions of the United States Supreme Court.

In Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971), this court held that an arrest for careless driving did not justify the seizure of a pouch containing marijuana from under the front seat of the defendant's vehicle when no independent circumstances gave rise to probable cause to search the vehicle. Although Cowdin was predicated on a construction of the Fourth Amendment, the United States Supreme Court's decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), negates the precedential value of that case. In Belton, the defendant was initially stopped for driving at an excessive rate of speed, and in the course of the stop the arresting officer smelled burnt marijuana and saw on the floor of the car an envelope marked "Supergold," which term he associated with marijuana. The officer then directed the occupants, including the defendant, to get out of the car and placed them under arrest for unlawful possession of marijuana. After patting down each of the occupants, the officer searched the passenger compartment of the car. During the course of this search the officer unzipped one of the pockets of a black leather jacket found in the back seat of the vehicle and discovered cocaine, which he immediately seized. The Supreme Court concluded that the search of the passenger compartment was a constitutionally valid search incident to a lawful custodial arrest, stating:

Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." In order to establish the workable rule this category of cases requires, we read Chimel's [Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ] definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

453 U.S. at 460-61, 101 S.Ct. at 2864 (citations omitted).

In People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973), this court, again addressing the issue in the context of the Fourth Amendment, held that the arrest of a suspect for entering a theater without paying an admission fee in violation of a municipal ordinance did not justify the seizure of marijuana flakes from the suspect's shirt pocket. Addressing the validity of the seizure on the explicit premise that the defendant had been subjected to a lawful custodial arrest, the court noted that the instrumentalities or evidence of minor traffic violations or minor municipal ordinance offenses are minimal or nonexistent, in that many persons charged with such minor offenses will not be incarcerated, and then stated:

We point out again that the evidence seized in this case was not discovered in plain view, by a "frisk" of the defendant for assaultive weapons, by a search of the defendant for instrumentalities or evidence of the offense for which he was arrested, by an inventory search, or by a search for evidence or instrumentalities of an offense for which there existed probable cause. Rather, the evidence was seized during a general exploratory search for which no probable cause existed.

182 Colo. at 84, 511 P.2d at 474.

Subsequent to this court's decision in Valdez, the United States Supreme Court decided United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which clearly abrogated this court's interpretation in Valdez of the scope of a constitutionally permissible search of a person incident to a lawful arrest. In Robinson, the defendant was subjected to a search of his person incident to an arrest for driving an automobile without an operator's license. In the course of the search, the arresting officer removed a "crumpled cigarette package" from the defendant's pocket, opened it up, and saw inside fourteen gelatin capsules of white powder which the officer believed to be, and later analysis proved to be, heroin. The heroin was admitted at the defendant's trial, which resulted in a conviction. The Court of Appeals reversed, holding that, since there was no further evidence of the crime of driving under a revoked license to be obtained from a search of the defendant's person, the arresting officer was limited to a search for weapons only. The United States Supreme Court reversed, reasoning that a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and that a search of the person of the arrestee...