People v. Cruse, 01CA0086.

• Citation: 58 P.3d 1114
• Decision Date: 20 June 2002
• Docket Number: No. 01CA0086.,01CA0086.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robin K. CRUSE, Defendant-Appellant.
• Court: Court of Appeals of Colorado

58 P.3d 1114

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robin K. CRUSE, Defendant-Appellant.

No. 01CA0086.

Colorado Court of Appeals, Div. I.

June 20, 2002.

As Modified on Denial of Rehearing August 1, 2002.

Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Defendant, Robin K. Cruse, appeals the judgment of conviction entered upon jury verdicts finding him guilty of unlawfully manufacturing a schedule II controlled substance (methamphetamine and amphetamine), unlawful possession of a schedule II controlled substance (methamphetamine and amphetamine), and possession of drug paraphernalia. Defendant also appeals the sentences imposed in connection with the two controlled substance convictions. We remand for additional findings concerning defendant's motion to suppress and reject defendant's other contentions.

The affidavit supporting the search warrant here at issue included the following information.

Defendant was arrested pursuant to an outstanding arrest warrant in an unrelated case. The arresting officer immediately detected an overwhelming odor on defendant's person that the officer knew to be solely consistent with the manufacture of methamphetamine.

At the detention facility, an investigator examined an article of defendant's clothing and detected an overwhelming odor that the investigator knew to be solely consistent with the manufacture of methamphetamine. When the investigator met with defendant, the investigator detected this same odor on defendant's person even though defendant had just showered. The investigator noticed that defendant's hands were callused with what appeared to be stain or burn marks. Based on his experience, the investigator recognized these stains and burns as the kind of injuries often caused by the high temperatures and abrasive chemicals used to manufacture methamphetamine.

The investigator also knew that, approximately ten months earlier, a search warrant had been executed at a different address where defendant was then living; a search of the residence had resulted in the discovery of a methamphetamine manufacturing operation; and when interviewed, defendant had admitted participation in methamphetamine manufacturing.

Defendant told the investigator the address of the house where he was living, though he was evasive when asked whether anyone else shared the residence. The investigator left defendant at the detention facility and drove to the address that defendant had provided.

Upon arrival, the investigator and a second officer noticed lights on in the basement. They approached the front door and knocked. No one answered. The officers could detect a faint odor consistent with the production of methamphetamine emanating from the front of the house and on the side of the house near an air cooler. The officers walked past the air cooler on their way to a side basement door. The officers knocked on the basement door. Again, no one answered.

The officers then walked to the rear of the property and entered a structure that the investigator described as a "carport." The investigator observed plastic packaging materials for nasal decongestants on the ground in the garage. The investigator knew that this type of decongestant contained a precursor chemical used in one method of producing methamphetamine and that defendant had previously used this particular method when producing methamphetamine.

A third officer brought a dog onto the property. The dog was trained in the detection of narcotics, including methamphetamine. The dog alerted to the presence of an unknown narcotic odor, although the affidavit does not indicate exactly where this occurred.

Based on this information, a district court judge issued a search warrant for defendant's residence and his automobile. During the execution of that warrant, police officers discovered methamphetamine along with various chemicals and implements used in its manufacture. Based on that evidence, charges were filed against defendant in this case.

Prior to trial, defendant filed a motion to suppress the seized evidence as the fruit of an unlawful search. At a hearing on that motion, most of the factual assertions set forth in the affidavit supporting the search warrant were undisputed.

As to those facts in dispute, the trial court found that the gate located on the side of the house was open when the officers walked through it to knock on the basement door, the officers were able to detect the faint odor of methamphetamine manufacturing before they reached the basement door, and the investigator's description of a "carport" in the warrant affidavit was "extremely misleading" because the structure was actually a garage with an open sliding door.

The trial court then concluded that the police officers were lawfully present at defendant's front door and on the side of the residence leading to the separate entrance for the illuminated basement. The court also concluded that once the officers detected the odor of methamphetamine from these lawful vantage points, the totality of their information constituted probable cause sufficient to authorize the issuance of a search warrant.

The court further concluded that the police officers should have obtained a warrant before subjecting defendant's residence to a dog sniff, they had unlawfully entered the garage, and they had misleadingly described the location where they discovered the decongestant packaging. However, the court found the dog sniff and the unlawful search of the garage were immaterial because the information from those unlawful searches was not necessary to establish probable cause for the warrant. Accordingly, the trial court denied defendant's motion to suppress.

I.

Defendant first argues that the trial court erred by denying his motion to suppress. We remand for additional findings.

On review of a trial court's suppression order:

a "court's findings of historical fact are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence in the record." In reviewing a court's conclusions of law, however, we apply a de novo standard of review to ascertain whether its legal conclusions are supported by sufficient evidence and whether it has applied the correct standard.

People v. Ortega, 34 P.3d 986, 990 (Colo.2001) (citation omitted; quoting People v. Quezada, 731 P.2d 730, 732 (Colo.1987)).

Where a suppression claim involves a mixed question of law and fact that cannot be resolved without additional factual findings, the appellate court should remand for further proceedings. People v. McClure, 190 Colo. 250, 545 P.2d 1038 (1976).

A.

We begin by analyzing whether the information in the search warrant affidavit, other than the information concerning the dog sniff and the search of the garage, was lawfully obtained. Defendant argues that the information concerning the odor which the officers smelled emanating from his house was unlawfully obtained because the officers invaded an area of his curtilage where he enjoyed a reasonable expectation of privacy. We disagree.

The Fourth Amendment protects against police intrusions that abridge a legitimate expectation of privacy. A legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. While the curtilage surrounding a home may be protected under the Fourth Amendment, a search within the curtilage is lawful if the area's public accessibility dispels any reasonable expectation of privacy. People v. Shorty, 731 P.2d 679, 681 (Colo.1987).

Here, the record supports the trial court's finding that the gate was open on the side of the house leading to the basement entrance, and the photographs of the basement entrance, admitted as exhibits at the suppression hearing, show that this entrance was in an area held open to the public. Moreover, the fact that basement lights were on, in combination with defendant's evasive response concerning whether he shared the premises with another person, support the trial court's conclusion that the officers had a reasonable basis to walk through the open gate and knock on the basement door.

Thus, we conclude that the officers were in an area where they had a right to be when they smelled the methamphetamine odor. See People v. Baker, 813 P.2d 331, 333 (Colo. 1991)

(an inquiry regarding the possibility of narcotics offenses is sufficient justification for a police officer to enter the defendant's property and knock on the door); People v. Shorty, supra, 731 P.2d at 682 (defendant did not have a reasonable expectation of privacy in the area under a doormat in front of a basement apartment that was seven steps below ground level and had a private entrance).

Accordingly, the officers' detection of the methamphetamine odor, without the assistance of any sense-enhancing device, was not an unlawful search. See People v. Baker, supra.

The People do not challenge the trial court's conclusion that the police officers' entry into the garage was an unlawful search. Hence, we will not disturb this determination.

Similarly, the People do not directly challenge the trial court's conclusion that because the dog sniff was conducted without a warrant, it represented an unlawful search. We note, however, that the trial court's conclusion would be a substantial extension of existing Colorado precedent. See People v. Haley, 41 P.3d 666, 672 (Colo.2001)

; People v. May, 886 P.2d 280 (Colo.1994).

We cannot decide the latter issue on the existing record because the trial court made no factual finding of the precise location of the dog sniff. Accordingly, we conclude that on remand the trial court should make a finding as to the exact location of the dog...