People v. Clark

• Decision Date: 11 December 1975
• Docket Number: No. 74--324,74--324
• Citation: 547 P.2d 267,37 Colo.App. 188
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin CLARK, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 267

547 P.2d 267

37 Colo.App. 188

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin CLARK, Defendant-Appellant.

No. 74--324.

Colorado Court of Appeals, Div. II.

Dec. 11, 1975.

Rehearing Denied Jan. 8, 1976.

Certiorari Denied March 15, 1976.

J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Davies & Saint-Veltri, Leonard E. Davies, Denver, for defendant-appellant.

RULAND, Judge.

The opinion announced on August 19, 1975, is withdrawn, and the following opinion is issued in its stead.

Defendant, Melvin Clark, was tried by a jury and convicted of first degree burglary, in violation of § 18--4--202, C.R.S.1973, and rape, in violation of § 18--3--401, C.R.S. 1973. We affirm.

I. Warrantless Search

Defendant contends that the trial court erred in not granting a motion to suppress certain evidence obtained without a warrant. We disagree.

At the hearing on the motion, the following evidence was presented. At approximately 2:15 a.m. on the morning of February 18, 1974, three officers of the Greeley Police Department responded to a report that a rape had occurred at a residence located approximately one block from an apartment complex in which defendant and his brother occupied a garden level apartment.

In the course of their investigation at the residence of the prosecutrix, the investigating officers were informed by her that the perpetrator of the offense was a black male about 5 10 in height and weighing approximately 150 pounds. The officers observed two sets of footprints in freshly fallen snow, one set leading to the residence and one set leaving the residence. The officers followed each set of footprints and determined that they led by different routes to the apartment complex where defendant lived. Both sets of footprints were of similar size and the soles of the shoes creating the prints had a pattern customarily found on certain types of hiking boots.

After following the footprints to the apartment complex, the officers entered the building through the door apparently used by the individual making the tracks. A landing was located inside the door from which a person entering the apartment complex either climbed a stairway to the upstairs apartment or followed a stairway down to the garden level apartments. There was a plastic 'runner' across the landing and on the stairway. The officers noted what appeared to be a dry toe print on the plastic runner on the stairway leading downstairs which indicated to them that the individual making the prints in the snow had entered the building and gone downstairs. The officers then contacted an off-duty officer who resided in the apartment complex to determine if any of the apartment residents fit the description given by the prosecutrix, and were referred to the apartment manager. The apartment manager advised that defendant's brother might fit the description given and that he resided in an apartment on the garden level.

The officers then went to the defendant's apartment and knocked on the door. There was no answer. The officers therefore obtained a pass key from the manager. When the officers returned, they knocked once again rather than using the key, and this time the door was opened by the defendant's brother.

The testimony of the investigating officers and the defendant and his brother is in conflict as to what transpired thereafter. The officers testified that the brother was advised that they were investigating a rape that had occurred nearby and wished to enter and search for hiking boots that made the tracks in the snow. According to the officers, the brother and subsequently the defendant gave permission to enter the apartment and search. During the course of a search of the bedroom, the defendant inquired whether the officers had a search warrant. One of the officers replied in the negative and inquired whether defendant felt they should obtain a search warrant, whereupon defendant replied in the negative.

The defendant and his brother testified that when the brother opened the door, the officers pushed past him into the interior of the apartment as one officer explained that they were investigating a rape. Once inside, the officers proceeded with their search of the bedroom, and neither the defendant nor his brother consented to the search. While one of the officers was in the bedroom, defendant inquired whether the officers had a search warrant and understood from the officer's response that a warrant was not required. According to the defendant, he raised no further objections because he felt that such would be futile. Both defendant and his brother testified that they did not consent to either entry into the apartment or the subsequent search. There was no direct evidence whether the officers were seeking to determine if any hiking boots owned by either of the occupants were wet or that they were searching for any weapon used in the commission of the offense.

In any event, as a result of the search, the officers seized a pair of hiking boots with a sole similar to that which made the footprints in the snow as well as some denim pants belonging to the defendant. The hiking boots were wet, as were the cuffs of the pants.

On the basis of this discovery, the officers asked if both brothers would accompany them to the station for interrogation. According to the officers, both the defendant and his brother agreed, whereupon they were handcuffed and transported in separate vehicles to the station. Following interrogation at the station, the officers stated that defendant was placed under arrest.

The court concluded that the search by the officers was justified by 'exigent circumstances,' namely, that the wetness of the boots was highly probative evidence pertinent to the investigation by the officers and that the 'presumption that a search warrant could be obtained before that evidence dissipated would be almost preposterous.' Accordingly, the trial court concluded that the warrantless search was permissible and that the hiking boots were admissible in evidence. The propriety of this ruling is the only question before us, since the trial court, by clear implication, determined that neither the defendant nor his brother consented to the search, See People v. Neyra, Colo., 540 P.2d 1077, and trial counsel for defendant conceded at the suppression hearing that the People 'had adequate ground for a search warrant,' thus removing the issue of probable cause to search.

In some cases a warrantless search of a residence has been judicially approved where it appears to the officers that evidence may be Removed or destroyed through the efforts of the suspect or someone acting on his behalf before a warrant can be obtained. See, e.g., United States v. Rubin, 474 F.2d 262 (3rd Cir.); See also People v. Neyra, supra; People v. Duleff, 183 Colo. 213, 515 P.2d 1239; People v. Railey, 178 Colo. 297, 496 P.2d 1047. Defendant's appellate counsel contends, in effect, that the 'exigent circumstances' doctrine does not apply because there was no showing that defendant or his brother were in the process of or would have destroyed or removed the boots in question. Alternatively, counsel points out that no evidence was offered to indicate the length of time required to obtain a search warrant in order to demonstrate that the boots would be dry before that time, and that, in any event, the boots were dry when offered as evidence at the trial.

As to the alternative assertion, the trial court was in the best position to assess the time required to obtain a search warrant in that judicial district in view of the hour the crime was committed and to take judicial notice thereof, and we are in no position to overturn that determination here. Further, the fact that the boots were dry when offered in evidence is not relevant to the issue of whether the officers were constitutionally permitted to search for this evidence in their investigation in order to determine its physical condition at a time shortly after the crime was committed.

As to the first contention, in Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, while the Supreme Court admonished that 'only in 'a few specifically established and well delineated' situations . . . may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it,' citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Court indicated in dictum that one of the 'well delineated situations' would exist when the evidence seized by the officers was 'in the process of destruction.' In Schmerber the Court upheld a police officer's order to hospital authorities to draw a blood sample from a defendant arrested for driving under the influence on the basis that the evidence would likely disappear during the period of delay necessary to obtain a search warrant since the percentage of alcohol in the blood diminishes after consumption thereof ceases. Then, in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, (decided after defendant's brief was filed in the present appeal), the Court decreed that a state may not impose 'greater restrictions as a matter of Federal constitutional law when this Court specifically refrains from imposing them.' (emphasis supplied) In view of the Court's pronouncement in Oregon v. Hass, supra, and in view of the Court's analysis of the exceptions to the warrant requirement in Vale, we must necessarily conclude that the Court has Refrained from limiting the 'exigent circumstances' doctrine to recovery of evidence that may be lost or destroyed through efforts of the suspect or someone on his behalf.

Nor do we find any basis in other recent decisions of the Supreme Court decided since Vale for...