People v. Donald
| Decision Date | 07 December 1981 |
| Docket Number | No. 81SA459,81SA459 |
| Citation | 637 P.2d 392 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Lloyd Allen DONALD, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Stuart A. VanMeveren, Dist. Atty., Stephen J. Roy, Deputy Dist. Atty., Fort Collins, for plaintiff-appellant.
Paul E. Valentine, Fort Collins, for defendant-appellee.
Pursuant to C.A.R. 4.1 the People appeal from a ruling suppressing evidence seized after a warrantless entry into the defendant's apartment under arguably exigent circumstances. Because the trial court misapprehended the legal standards applicable to the suppression issues, we reverse and remand with directions.
The defendant was charged by direct information with possession of a Schedule I controlled substance, psilocybin, on August 21, 1981. Colo.Sess.Laws 1981, ch. 128, 12-22-309(2)(a) and 18-18-105 at 714-17 and 730. He filed a motion to suppress evidence and the court conducted a hearing on the motion. The evidence at the suppression hearing consisted only of the direct testimony of Fort Collins Police Officer Ernie Tellez who had arrested the defendant for the offense charged. Upon conclusion of the prosecutor's direct examination of the officer the court stated that it was ready to rule and granted the defendant's motion to suppress.
Officer Tellez' testimony at the suppression hearing established the following sequence of events during the evening of August 21, 1981. A woman reported to the Fort Collins Police Department that she had been chased by an unidentified man whom she believed had come from the apartment below hers. The woman lived in the upstairs unit of a duplex apartment at 2108 Applewood Drive in Fort Collins. Officer Tellez was dispatched to her home to investigate the complaint. After obtaining a description of the suspect the officer walked down an outside staircase to the lower apartment which was leased and occupied by the defendant. Looking through a living room window in the defendant's apartment, the officer observed six or seven persons inside the living room, none of whom matched the description of the man who had been chasing the woman. The officer, who was in uniform, knocked on the living room window and the occupants looked towards the window. At this point one of the occupants, whom the officer believed probably was the defendant, grabbed what appeared to be a "baggie of marijuana" and "a smoking pipe" and threw them under a coffee table. Officer Tellez demanded immediate entry into the apartment and one of the occupants opened the door. Upon entry the officer immediately retrieved the baggie and pipe from the living room.
Officer Tellez then walked into the kitchen to see if anyone else was inside the apartment. He returned to the living room where he observed lying under a chair a plastic bag of mushrooms which he believed contained psilocybin. He seized the plastic bag and escorted the defendant into the kitchen, where he requested permission to search the entire apartment for the man who had been chasing the woman and for additional drugs. While talking to the defendant in the kitchen he observed two jars of mushrooms on top of the refrigerator. According to the officer's testimony the defendant consented to the search of the apartment. A search of the bedroom uncovered a laboratory for the manufacture of psilocybin, including 41 jars of cultivated mushrooms and various books dealing with their cultivation, all of which were seized.
When the officer completed his direct testimony the court stated to defense counsel that it was unnecessary to cross-examine the officer and then suppressed all evidence seized from the apartment, ruling as follows:
The court's ruling was based on the incorrect assumption that the officer's observations from an area outside the living room window was per se an unconstitutional search. In People v. Gomez, Colo., 632 P.2d 586 (1981), we considered whether the occupant of a motel unit could claim a reasonable expectation of privacy in activities conducted inside the unit but observed by a police officer looking through a gap in the...
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State v. Rose
...to be marijuana; went onto porch, then jumped off porch and looked through window and saw defendant gathering up material); People v. Donald, 637 P.2d 392 (Colo.1981) (if officer was looking through living room window from a common entrance or similar passageway, the observations did not co......
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