People v. Clements, 82SA570

• Citation: 661 P.2d 267
• Decision Date: 28 March 1983
• Docket Number: No. 82SA570,82SA570
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Alan CLEMENTS, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 267

661 P.2d 267

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Alan CLEMENTS, Defendant-Appellee.

No. 82SA570.

Supreme Court of Colorado.

March 28, 1983.

Alexander M. Hunter, Dist. Atty., Twentieth Judicial Dist., Ann B. Stone, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Richard D. Irvin, Boulder, for defendant-appellee.

ERICKSON, Justice.

The district attorney, pursuant to C.A.R. 4.1 and section 16-12-102, C.R.S.1973 (1978 Repl.Vol. 8), prosecuted an interlocutory appeal from an order suppressing a confession and physical evidence which were essential to prove the commission of drug-related crimes by Alan D. Clements. Clements was charged with unlawful possession, distribution, and manufacture of amphetamines and methamphetamines, in violation of section 18-18-105, C.R.S.1973 (1982 Supp.). Following an extended hearing on motions to suppress the evidence the district court suppressed the confession which the defendant made after having been given the Miranda warning, and the evidence which was seized when the defendant's car was searched on July 17, 1982. We reverse the suppression orders in part and remand for further proceedings not inconsistent with this opinion.

I.

On the evening of July 16, 1982, officer Thomas Deland of the Broomfield Police Department was on bicycle patrol in Broomfield, Colorado. As he approached an apartment building he noticed the defendant standing behind a green Chevrolet automobile. He then saw the defendant put something in the trunk, look at him slam the trunk closed, and enter the apartment building.

The officer recognized the defendant from previous police contacts and knew that the defendant had a history of manufacturing narcotics, particularly amphetamines. As the officer rode his bicycle by the defendant's automobile, he detected a strong odor of ether coming from the trunk of the automobile. He radioed for backup assistance and, after learning that the automobile belonged to the defendant, entered the apartment house to contact the defendant.

When Officer Deland located the defendant, he advised him that he had received information that the defendant had a lab for manufacturing drugs in the trunk of the car. The defendant denied the accusation. Deland then advised the defendant of his Miranda rights. He waived his rights and agreed to talk to the officer. The defendant admitted that the vehicle was his, but denied that any ether was in the car. He also told Deland that he was the only one who drove the car. The officer told the defendant that the odor was so strong that it made his eyes water and that he wanted to search the vehicle for ether. The defendant, who appeared nervous, then told the officer that he wanted to talk to his lawyer before granting consent to search the vehicle. The officer ceased the questioning and left the apartment. The defendant agreed to return to the vehicle after he talked to his lawyer. He never returned.

Not long after that conversation, another person came by the parking lot and attempted to move the car. The officer refused to allow the car to be moved and procured the car keys from the individual that the defendant had sent to claim the car. Using the car keys, the police opened the trunk and found ether together with lab equipment and other chemicals that could be used in the manufacture of narcotics. The ether was found in a glass whiskey bottle stored in a footlocker. Officer Deland sealed the bottle of ether and then closed the trunk. Officer Deland's search of the trunk was directed solely towards "neutralizing" the ether. He ignored several closed suitcases and instead focused his search on where the ether odor was the strongest. He did not perform a general exploratory search of the trunk or car interior. The back-up officers present at the time also noticed the ether odor and lab equipment. Under the supervision of the West Adams County Fire Department, the car was towed to Broomfield's impoundment lot.

Four of the police officers who worked on this case were familiar with hazardous materials--particularly the odor and properties of diethyl ether. Officer Murray, who was Deland's backup officer, had been employed by a chemical company before joining the Broomfield Police and had working knowledge of the manufacturing process of amphetamines and the dangerous properties of ether. Officer Brewer, of the West Adams County Fire Department, had special police training in handling hazardous materials. In addition, expert testimony in the record established that diethyl ether forms peroxides when it is allowed to stand. The peroxides are unstable and can cause spontaneous combustion. All of the expert testimony pointed to the highly explosive properties of diethyl ether and to its easily identifiable smell. The testimony supports the conclusions which the police reached that night.

When Officer Deland first detected the ether, the defendant's car was parked less than twenty feet from an apartment complex. The ether was situated above the gas tank of the car and posed a substantial threat to public safety. One expert testified that the ether was a "time bomb" waiting to explode. Officer Murray testified that the situation was "scary" in view of the possibility of an unexpected detonation of the ether.

Officer Deland had intended to obtain a search warrant the following Monday (the car was impounded Friday night). When he was told by a fellow officer that the ether still posed a danger, Deland decided to perform the search on Saturday. A warrant was obtained and the search completed under the supervision of fire department officials and an expert on hazardous materials from the University of Colorado.

The search of the vehicle produced the items that had been observed when the search for ether was undertaken by Officer Deland. In addition, controlled substances were found in the glove compartment of the vehicle. Other chemicals, chemistry equipment, and "cookbooks" which outlined procedures for manufacturing drugs were found in the trunk.

After the search was completed, the expert on hazardous materials and a fire official recommended that the ether be destroyed to protect the safety of the officers and the public and to avoid an explosion. The outside temperature on both July 16 and July 17 was sufficiently high to cause the ether to vaporize and become even more unstable. The fire officials also recommended that the other chemicals--hydrochloric acid, propane, and gasoline--be destroyed, and they were burned at the site of the search.

Following the search of the defendant's car pursuant to the warrant, an arrest warrant was issued for the defendant. On July 29, 1982, the defendant was arrested in Dacono, Colorado, again advised of his Miranda rights, and transported back to Broomfield. Clements waived his rights and told Officer Deland that he had manufactured amphetamines five or six times in the last eleven months and that during that time he had kept some of the finished product for his own personal use, given some of it away, and sold some of it in the form of dime bags for ten dollars apiece. He told the officer that the drugs had been manufactured at a residence in Broomfield, at a local reservoir, and at other places in the area. In short, he capsulized his manufacturing operation by saying, "where haven't I made it."

Following his arrest, the defendant filed a motion to suppress, asserting that the evidence that was obtained on July 17 was intentionally destroyed by the police prior to the time that he had an opportunity independently to test the chemicals that were allegedly used to manufacture amphetamines and methamphetamines. He also claimed that the search was without probable cause and that the seizure of the drugs violated rights guaranteed to him by the Fourth Amendment of the United States Constitution and by Art. II, sec. 7 of the Colorado Constitution. Lastly, he claimed that his confession was the fruit of an illegal arrest and therefore should be suppressed.

II.

The trial court suppressed all evidence relating to the seizure of the chemicals and the subsequent arrest. The court concluded that the officers "used the potential emergency as a pretext for entering the trunk"; and that the police could have alleviated the situation in a less intrusive manner, presumably allowing the defendant or his friends to move the car to a more desolate location. Since the police acted unreasonably by entering the trunk, the evidence was "not inadvertently" obtained and therefore was not in plain view and must be suppressed. The court then held that probable cause to search the rest of the car and to arrest the defendant were derivative products of the illegal trunk search. Thus, the court suppressed the defendant's confession in addition to the physical evidence.

The propriety of the district court's suppression orders depends on whether the police acted legitimately when entering the defendant's car trunk. We have held that warrantless searches are presumptively invalid and that the burden is on the prosecution to establish an exception to the warrant requirement. People v. Draper, 196 Colo. 450, 586 P.2d 231 (1978); People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977). A warrantless seizure of an item in plain view is permitted if the police are validly on the premises. Similarly, evidence validly seized pursuant to the plain view exception may form the basis for probable cause to obtain a search or an arrest warrant. People v. Stoppel, 637 P.2d 384 (Colo.1981); People v. Gurule, 196 Colo. 562, 593 P.2d 319 (1978).

A warrantless search of the defendant's car trunk may be proper if exigent circumstances existed which justified the intrusion. We have held that a bona fide public emergency is a variant of the exigent circumstances exception to the warrant requirement. People v. Amato, supra; People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974). In Amato, we cited several...