People v. Grana

• Decision Date: 20 May 1974
• Docket Number: No. 25561,25561
• Citation: 185 Colo. 126,527 P.2d 543
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jorge GRANA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 543

527 P.2d 543

185 Colo. 126

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jorge GRANA, Defendant-Appellant.

No. 25561.

Supreme Court of Colorado, En Banc.

May 20, 1974.

Original Opinion Adhered to on Rehearing Oct. 29, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Taussig, McCarthy & Snyder, Michael J. McCarthy, Boulder, for defendant-appellant.

KELLEY, Justice.

Defendant was found guilty in Boulder District Court by a jury of possession for sale of a narcotic drug and possession with intent to dispense a dangerous drug and sentenced to the penitentiary. Because the contraband was seized in violation of the defendant's Fourth Amendment rights, we reverse the convictions.

On July 1, 1971, Detective William Spotts of the Boulder Police Department observed a Porsche automobile with Florida license plates driving in the 'Hill' area of Boulder. Spotts obtained the license number of the automobile and ran a routine NCIC (National Crime Information Center) check on it while following in his unmarked car. The dispatcher notified Spotts that the vehicle was a 'hit' although it was not clear whether the vehicle was stolen or whether a wanted person was in the vehicle.

About this time the Porsche stopped and the passenger attempted to exit. Spotts stopped behind the vehicle and ordered the passenger back into the vehicle. Other police assistants arrived shortly thereafter, and while defendant (who had been driving) and his passenger were being detained by the other officers, Spotts received definite confirmation that the Porsche had been reported stolen in Florida.

Spotts then informed defendant and the passenger that they were under arrest for investigation of auto theft. He advised them of their constitutional rights, and they were taken to the police department by another officer for booking.

While Spotts was waiting for a tow truck to remove the vehicle to the police impound lot, he began what he later testified was a 'search incident to the arrest' of the vehicle. He searched the passenger compartment, looking under the front seats and in the glove compartment. He then opened the front trunk of the Porsche and observed three pieces of luggage. He began to examine the contends of a flight bag, but decided to postpone his search until the vehicle was secure in the impound lot as he began to receive harassment from some of the residents in the area where the car was stopped.

A tow truck arrived and removed the vehicle to the impound lot which is fenced and patroled by dogs. Spotts followed the vehicle to the impound lot and continued his search there. We note that while there was testimony as to standard police procedures regarding the impoundment and release of stolen vehicles, there is no evidence in the record that this search was a standard impoundment inventory search.

Spotts again opened the flight bag, and looking into zippered inside pockets, found defendant's passport in one pocket and a greenish brown powder in the other. Spotts testified that his experience as a narcotics officer led him to believe that the powder was either hashish residue or organic mescaline residue. He then searched behind the electrical cowling, which is behind the firewall of the vehicle, and found a brown paper bag containing L.S.D. He also found additional L.S.D., some heroin and cocaine, and capsules containing the same greenish brown powder that was found in defendant's flight bag secreted in the heater-blower system of the vehicle. These drugs formed the basis for defendant's convictions, and were introduced in evidence over his objection.

The record is clear that the only information Detective Spotts had at the time of this search was that defendant had been driving an automobile which had been reported stolen in Florida. There is no evidence linking the defendant to other criminal activity or to any drug related offenses.

I.

The People assert, at the outset, that the defendant lacks standing to challenge the search of the stolen automobile. However, the People do not challenge defendant's standing to object to the search of his luggage in which he retained a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Weisenberger, Colo., 516 P.2d 1128 (1973). The greenish brown residue found in defendant's flight bag was a vital link connecting defendant with the contraband subsequently found in the heater-blower system of the automobile. Thus, if the intrusion into defendant's luggage was constitutionally impermissible, defendant's conviction must be reversed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

II.

As noted above, Detective Spotts had no information concerning the defendant except that he had been driving a car which had been reported stolen. Pursuant to the arrest of the defendant he searched the passenger compartment of the automobile which was under the immediate control of the defendant. The search, however, continued into the trunk area and into the defendant's personal effects in his luggage. This exceeds the reasonable scope of a search incident to an arrest and must be justified, if at all, on some other basis. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Although...