People v. Boff

• Decision Date: 19 December 1988
• Docket Number: No. 88SA58,88SA58
• Citation: 766 P.2d 646
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Howard James BOFF, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 646

766 P.2d 646

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Howard James BOFF, Defendant-Appellee.

No. 88SA58.

Supreme Court of Colorado En Banc.

Dec. 19, 1988.

Dean J. Johnson, Dist. Atty., Jeffrey D. Easley, Deputy Dist. Atty., Cortez, for plaintiff-appellant.

Fossum, Hatter & Green, P.C., Michael F. Green, Cortez, for defendant-appellee.

VOLLACK, Justice.

Pursuant to C.A.R. 4.1, the People challenge a ruling of the district court suppressing marijuana found in a backpack worn by Howard James Boff. We conclude from the totality of the circumstances that the search of the backpack was incident to a lawful custodial arrest, and therefore reverse the order of the district court.

I.

Boff was arrested on July 30, 1987, after a police surveillance team spotted him watering marijuana plants in a remote, unpopulated canyon in Dolores County, Colorado. Two police officers were involved in Boff's arrest. The first police officer observed a man later identified as Boff watering marijuana plants. He saw the man leave the canyon wearing a blue backpack. He transmitted to the police dispatcher that the subject was leaving the canyon and that he was in pursuit on foot. Boff left the canyon on a motorcycle. The second police officer stopped Boff on a deserted road about ten minutes later. He asked Boff to turn off the motorcycle engine so they could converse quietly, showed his badge to Boff, and asked him to wait for another police officer who would be arriving shortly. The first police officer arrived about five minutes later. The first police officer identified Boff as the person he had seen watering the marijuana plants. He testified that when he caught up with Boff, the backpack was lying on the ground next to the motorcycle. From the testimony of the two police officers, the obvious inference can be drawn that Boff was wearing the backpack at the time he was stopped by the second police officer. ¹

The backpack was taken from Boff by the police officer. The backpack and the defendant were then driven to the Dolores County sheriff's office in Dove Creek. ² After Boff was placed in custody, the police opened the backpack without a search warrant for the purpose of discovering additional evidence. ³ They found marijuana in the backpack. Boff was subsequently charged by information with cultivation of marijuana, ⁴ possession with intent to distribute marijuana, ⁵ and possession of more than eight ounces of marijuana. ⁶

Boff moved to suppress all evidence seized as the product of an illegal arrest, and to suppress the contents of the backpack as an illegal search and seizure in violation of the fourth amendment. The suppression hearing was held on February 9, 1988. At the conclusion of the hearing, the district court ruled that Boff had been lawfully arrested, so the evidence did not have to be suppressed as the product of an illegal arrest. The district court nevertheless found that the backpack had been illegally searched. The district court stated that a warrantless search of the backpack could not be justified as an inventory search because the purpose of the search had been to find evidence of the crime. ⁷ Nor could it be justified as a search incident to a lawful arrest because the search occurred at the police station and because the backpack had been out of the control of the defendant from the time he was arrested. Because there were no exigent circumstances to justify such a search without a warrant and because the police could easily have procured a warrant, the district court suppressed the marijuana found in the backpack.

The People appealed to this court pursuant to C.A.R. 4.1, contending that the search of the backpack was a search incident to a lawful arrest. They argue that the search was valid because the police could have searched the backpack when they arrested Boff and because the United States Supreme Court does not require that the search of the defendant or his belongings be contemporaneous with arrest.

II.

The district court in its order suppressing the contents of the backpack failed to state whether its order was based on federal or state constitutional law. When the lower court does not make clear that its ruling is grounded on state rather than federal constitutional principles, we will presume that it relied on federal law in reaching its decision. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983); People v. Gann, 724 P.2d 1318, 1320 (Colo.1986).

A search conducted without a warrant is prima facie invalid unless it falls within the limits of several well-recognized exceptions to the warrant requirement. People v. Casias, 193 Colo. 66, 72, 563 P.2d 926, 930 (1977). Even within the scope of a given exception, the search must meet the ultimate requirement of reasonableness. See People v. Santistevan, 715 P.2d 792, 794 (Colo.), cert. denied, 479 U.S. 965, 107 S.Ct. 468, 93 L.Ed.2d 412 (1986).

One of the well-recognized exceptions to the warrant requirement is the search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); People v. Alexander, 193 Colo. 27, 29, 561 P.2d 1263, 1265 (1977). The backpack Boff was wearing when stopped could have been searched by the police at the time he was arrested as a search incident to his arrest. As we stated in People v. Bischofberger, 724 P.2d 660 (Colo.1986):

[I]n the context of the Fourth Amendment the scope of a search incident to a lawful custodial arrest is quite broad. The search need not be limited to a mere pat-down of the arrestee's outer clothing, but may extend to pockets and other containers, opened or closed, found on the person of the arrestee or within his immediate reach. E.g., [New York v. Belton ], 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ]; [Gustafson v. Florida ], 414 U.S. 260 [94 S.Ct. 488, 38 L.Ed.2d 456 (1973) ]; [United States v. Robinson ], 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ]; People v. Tottenhoff, 691 P.2d 340 (Colo.1984); People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980). Such a search of the arrestee's person requires no independent justification, and the searching officer may seize and examine weapons, contraband, or other articles which the officer reasonably believes to be related to criminal activity even though these articles do not directly relate to the offense for which the arrest itself was effected.

Id. at 664-65 (footnote and citations omitted) (emphasis in original); see New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1980) (incident to arrest of automobile occupant, police may seize and search open or closed containers found in the passenger compartment); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1968) (incident to arrest, police may search area within the immediate control of the person arrested); People v. Hufnagel, 745 P.2d 242, 247-48 (Colo.1987) (search of closed endtable after defendant had been arrested and handcuffed upheld as search incident to arrest); People v. Ortega, 181 Colo. 223, 229, 508 P.2d 784, 788 (1973) (search of pocket at police station upheld as search incident to arrest); see also United States v. Litman, 739 F.2d 137, 139 (4th Cir.1984) (en banc) (search of shoulder bag in close proximity to defendant upheld as search incident to arrest); United States v. Mefford, 658 F.2d 588, 593 (8th Cir.1981) (search of brown paper bag carried by defendant upheld as search incident to arrest), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Lee v. State, 311 Md. 642, 668, 537 A.2d 235, 248 (1988) (search of gym bag hanging on fence at distance of two to eight feet from prone defendant upheld as search incident to arrest); Commonwealth v. Madera, 402 Mass. 156, 157, 521 N.E.2d 738, 739 (1988) (search of canvas gym bag defendant was carrying on his shoulder upheld as search incident to arrest); Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986) (search of "gym bag" or "overnight bag" slung over defendant's shoulder upheld as search incident to arrest). A search incident to an arrest "may have as one of its purposes the discovery of objects or things which constitute evidence that the person arrested has committed a crime." United States v. Simpson, 453 F.2d 1028, 1030 (10th Cir.) (citations omitted), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972). The question then becomes whether a warrantless search of containers found on or within the possession of the person which is not contemporaneous with an arrest falls outside of the judicially recognized exception of search incident to a lawful arrest.

A.

In People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971), we upheld the warrantless search of a sealed leather pouch that had been tied to the defendant's pants, as well as a purse and a book he was holding. The items were taken from the defendant at the time he was arrested, transported to the police station, and searched. We noted that, while searches not contemporaneous with arrest are generally improper, this was valid as either a search incident to arrest or as an inventory search because the police promptly took the defendant to the police station after arresting him rather than searching him in a public area. Id. at 53-54, 485 P.2d at 718. Also, in People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973), we upheld a search of a person, clothes, and purse that was delayed long enough to transport a female defendant to the police station to be searched by a matron as required by department regulations. Since these cases were decided, however, the United States Supreme Court has announced new guidelines concerning searches incident to arrest.

At one time, the United States Supreme Court held that a search incident to a lawful arrest must be "substantially contemporaneous with the arrest." See Stoner v. California, 376...