People v. Franklin

Decision Date08 February 1982
Docket NumberNo. 81SA285,81SA285
Citation640 P.2d 226
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Lee FRANKLIN, Defendant-Appellee.
CourtColorado Supreme Court

R. Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., John R. Olsen, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Lozow & Lozow, Charles W. Elliott, Gary Lozow, Denver, for defendant-appellee.

QUINN, Justice.

In this interlocutory appeal the People challenge an order suppressing a gold watch 1 seized during the execution of a search warrant which did not include the watch as one of the articles to be seized. The district court suppressed the watch on the ground that the People failed to establish an adequate nexus between the watch and the specific criminal activity being investigated under the warrant. We conclude that the court applied an inappropriate standard in suppressing the evidence and, accordingly, we reverse and remand with directions.


The defendant is charged in a one-count information with criminal attempt to commit felony-theft, sections 18-2-101 and 18-4-401, C.R.S. 1973 (1978 Repl. Vol. 8), against Miller's Mutual Insurance Association between January 3 and March 25, 1980, in Denver, Colorado. The charge stems from a claim made by the defendant to the insurance company for a loss due to the alleged theft of the gold watch from his residence at 3737 Fillmore Street in Denver. The watch was seized from the defendant's home during a search pursuant to warrant for stolen property believed to be located therein.

On March 12, 1980, Detective Roger Comstock filed with the Denver County Court an affidavit which, in essence, recounted the following facts. Earlier that day Ms. Velma Lewallen, in the course of a police interview, admitted that she was present during the commission of a theft in Black Hawk, Colorado, on February 18, 1980, and during a burglary at 4920 East Missouri Avenue, Denver, Colorado on March 6, 1980. She stated that the Black Hawk theft involved numerous rings which were presently located at the defendant's home at 3737 Fillmore Street in Denver. A Denver detective contacted the Gilpin County Sheriff's office and verified that there were 35 rings, a belt buckle and a coral bracelet taken in the theft. A check of Denver police records also indicated that on March 6, 1980, a burglary was reported at 4920 East Missouri Avenue, during which various items had been stolen from the living room, bathroom and bedroom areas of the home. Ms. Lewallen told Detective Comstock that the following property taken in the burglary was present at the defendant's home: a sea shell hanging lamp, a cassette portable stereo, three cameras, a tapestry of abstract design, a pair of roller skates, and several pictures.

Based on Detective Comstock's affidavit, a Denver County Judge issued a search warrant authorizing a search of the defendant's residence for the property reportedly taken in the Black Hawk theft and the East Missouri Avenue burglary. The jewelry listed in the search warrant consisted of 35 rings, which were specifically described by stone setting, and one coral bracelet.

Upon the issuance of the warrant Detectives Comstock and Scanlon, accompanied by four other officers and Ms. Lewallen, went to the defendant's residence to conduct the search. During the search Ms. Lewallen informed Detective Comstock that "part of (her) job each day was to go around shoplifting" and she pointed out various other items of property stolen in other crimes. These objects were seized along with some of the specific property described in the warrant. 2

During the execution of the warrant Detective Scanlon opened a crockpot in the kitchen. Located inside was a locked bag with "United Bank of Boulder" printed on it. The detective cut open the bag and found inside two smaller bags labeled with the name "Geoffrey Beene". Since the name held no significance for him or for Detective Comstock, Scanlon opened the smaller bags. Inside the bags were a gold watch, a silver watch, three rings and $46 in cash. The detective seized these objects because, as he testified at the suppression hearing, they "appeared to be hidden for a purpose" and "we confiscated them to determine ownership of the bags and things in the bags based on the names on the outside."

The defendant later was charged with attempted felony-theft based on his allegedly false claim to the insurance company regarding the theft of the gold watch from his home. Following a hearing on the defendant's motion to suppress, the court suppressed the items recovered from the crockpot because the People had failed to establish a nexus between the articles seized and the suspected criminal conduct which gave rise to the issuance of the warrant, namely, the Black Hawk theft and the East Missouri Avenue burglary. 3 In our view, the court's suppression ruling is based upon an unduly restrictive standard for plain view seizures.


Standards governing seizure of objects not described in a search warrant have their genesis in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Warden v. Hayden, supra, the Supreme Court rejected any distinction between contraband, fruits or instrumentalities of crime on the one hand, and mere evidence of criminal activity on the other, reasoning that "(p) rivacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit or contraband." 387 U.S. at 301-02, 87 S.Ct. at 1647, 18 L.Ed.2d at 789. However, in rejecting the "mere evidence" limitation on lawful searches, the Court noted:

"There must, of course, be a nexus-automatically provided in the case of fruits, instrumentalities or contraband-between the item to be seized and criminal behavior. Thus in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." 387 U.S. at 307, 87 S.Ct. at 1650, 18 L.Ed.2d at 792.

Coolidge v. New Hampshire, supra, expanded on the requirements for a plain view seizure of objects not described in the warrant:

"It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the 'plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.

"An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character....

"What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across the piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification-whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused-and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 403 U.S. at 465-66, 91 S.Ct. at 2037-38, 29 L.Ed.2d at 582-83.

The Court in Coolidge did not elaborate upon the proposition that an article in plain view may be seized when it is "of incriminating character." However, the Court's statement that the seizure may occur without the additional step of obtaining a search warrant, when "it is immediately apparent to the police that they have evidence before them," clearly implies that justification for the warrantless seizure is nothing more and nothing less than probable cause to believe that the article to be seized is connected with criminal behavior.

Notwithstanding the Supreme Court's rejection of the "mere evidence" limitation on seizures in Warden v. Hayden, supra, and its approval of the plain view seizure for any article "of incriminating character" in Coolidge v. New Hampshire, supra, some of our decisions have taken an unduly restrictive approach to plain view seizure during a search pursuant to warrant. Thus, in People v. LaRocco, 178 Colo. 196, 496 P.2d 314 (1972), upon which the district court principally relied in its suppression ruling, we upheld the suppression of an allegedly forged Illinois driver's license and a blank Illinois driver's license form, both of which were seized in plain view during the execution of a search warrant for stolen property, on the ground that the driver's license and the blank form were not "connected with the criminal activity being investigated under the search warrant." 178 Colo. at 200, 496 P.2d at 316. 4 See also People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971) (seizure of twenty dollar bill upheld on alternate ground that it was "closely connected with the crime for the investigation of which the search warrant was issued.") To the extent that these cases might be interpreted to prohibit a plain view seizure of an article-whether "mere evidence" or contraband, fruit or instrumentality-because the article is unrelated to the criminal activity underlying the search warrant, they are expressly disapproved. Rather, the appropriate standard, which we...

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    • March 8, 1982 an affidavit for a search warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Franklin, Colo., 640 P.2d 226 (1982); People v. Stoppel, Colo., 637 P.2d 384 (1981). We note further that the scope of the initial entry was limited to detainin......
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