People v. McGahey

• Decision Date: 11 September 1972
• Docket Number: No. 25614,25614
• Citation: 179 Colo. 401,500 P.2d 977
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Stanley Robert McGAHEY and Joseph Martin Vanackeren, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 977

500 P.2d 977

179 Colo. 401

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Stanley Robert McGAHEY and Joseph Martin Vanackeren,

Defendants-Appellees.

No. 25614.

Supreme Court of Colorado, En, Banc.

Sept. 11, 1972.

David L. Wood, Dist. Atty., Loren B. Schall, Chief Deputy Dist. Atty., Ronald L. Schultz, Deputy Dist. Atty., Ft. Collins, for plaintiff-appellant.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Denver, Edwin L. Felter, Jr., Don L. Nelson, Deputy State Public Defenders, Ft. Collins, for defendants-appellees.

KELLEY, Justice.

This is an interlocutory appeal by the district attorney of the Eighth Judicial District from an order of the trial court granting the defendants' motion to suppress 'as evidence against defendants in any criminal proceedings; (a) a narcotic drug; (b) statements made by defendants to police officers after their arrest; . . .' The district attorney certified to the trial court that the evidence ordered suppressed consisted 'of the entire proof of the charge of possession of Narcotic Drug pending against the defendants.' C.A.R. 4.1.

This case was argued to the trial court concurrently with People v. Buttorff, Colo., 500 P.2d 979, announced contemporaneously with this opinion. The critical facts are basically similar and what we say here is applicable to and controlling in Buttorff.

The facts, very briefly, are that Officer Fox received a tip from a confidential informant, whose reliability had not been previously tested, that what appeared to be marijuana plants were in the picture window of a house at 5336 North Taft, Loveland, Colorado. The house was located 100 to 150 yards off of Taft Street. Officer Fox drove into the driveway, which came to within 25 feet of the house. At this point he observed marijuana plants in the picture window of the house. The officer made an affidavit based on the foregoing facts, obtained a search warrant, returned to the house and seized the plants.

The trial court held 'that the actual going into the driveway, based on a tip, to in effect confirm that tip, was in fact a search for evidence and, therefore, . . . violates the defendant's constitutional rights for unlawful searches and seizures under the law,' and granted the motion to suppress. We disagree and disapprove of the court's ruling.

In arriving at his conclusion the trial judge stated that the officer could not investigate the information of a law violation he had received, and that this was, in effect, a search. He also concluded that by going into the driveway the officer had committed a trespass, and that he was not in a place where he had a right to be when he observed the marijuana plants. Finally, since the officer had no right to be there in the first place, he could not use the illegally obtained information to obtain a search warrant; hence, that which was seized under the search warrant was fruit of the poisonous tree.

This court has had occasion to consider searches and seizures under similar circumstances on previous occasions. Blincoe v. People, Colo., 494 P.2d 1285; People v. Snelling, 174 Colo. 397, 484 P.2d 784; People v. Baird, 172 Colo. 112, 470 P.2d 20; Wilson v. People, 156 Colo. 243, 398 P.2d 35.

In Wilson this court held that a belief, no matter how well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of the dwelling without a lawful warrant. Similarly, once the police officers were on the premises, they could not make use of anything observed or seized therein to form the basis for a determination of probable cause to arrest the occupants.

In Baird police officers approached the house with the intent to conduct a search under the authority of an invalid search warrant. At this point, Wilson would have been controlling, but for the fact that the police officers observed, through the glass in the front door, certain illegal activity within the residence before they entered and before any search was conducted. The court in Baird said:

'Standing outside the door, the police officers were in a place where they had every right to be. They were not required to close their eyes to evidence in plain view, and the sight of such evidence could properly from the basis for a...