People v. McMillon, 93SC336

• Decision Date: 03 April 1995
• Docket Number: No. 93SC336,93SC336
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Jerico Page McMILLON, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 879

892 P.2d 879

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Jerico Page McMILLON, Respondent/Cross-Petitioner.

No. 93SC336.

Supreme Court of Colorado,

En Banc.

April 3, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., David R. DeMuro, Sp. Asst. Atty. Gen., Denver, for petitioner, cross-respondent.

Gerash, Robinson & Miranda, P.C., Todd J. Thompson, Denver, for respondent, cross-petitioner.

Justice VOLLACK delivered the Opinion of the Court.

The petitioner and cross-respondent, the People of the State of Colorado, appeal from a decision by the court of appeals in People v. Jerico P. McMillan a/k/a Jerico Page McMillon, 870 P.2d 493 (Colo.App.1993), holding that the search of the purse of the respondent and cross-petitioner, Jerico Page McMillon (McMillon), was illegal and that the evidence seized from the purse should have been suppressed. We reverse and remand to the court of appeals to reinstate the judgment of conviction.

I.

On March 24, 1992, Deputy John Hicks (Deputy Hicks) of the Jefferson County Sheriff's Department observed a car without working headlights and license plate lamp. Deputy Hicks lawfully stopped the vehicle and spoke with the driver. Deputy Hicks performed a computer check on the driver and learned that there were two outstanding warrants for the driver's arrest. ¹ He thereafter arrested the driver and placed the driver in his patrol vehicle. He then asked McMillon, who was in the front seat, to step outside the vehicle. McMillon voluntarily left a purse on the front seat and got out of the car. As McMillon got out of the car, Deputy Hicks noticed a syringe between the driver's seat and the console between the seats. He asked the driver whether anyone in the vehicle was diabetic. The driver responded no.

Deputy Hicks thereafter returned to the passenger side of the vehicle and commenced an inventory search incident to the driver's arrest. During the course of this search, he noticed two purses, one lying on the passenger seat and one lying on the floorboard of the front passenger area. Deputy Hicks testified that he searched the purse lying on the seat and found inside the pouch of the purse "two clear baggies with a white powder substance and another bag with a white rock, off-white rock," which were later tested and found to be cocaine. This bag was determined to belong to McMillon based on identification found in her purse. Deputy Hicks also searched the other purse which was found on the floorboard of the front passenger side. Deputy Hicks testified that the purse found on the floorboard was later determined to belong to the driver and also contained drug paraphernalia.

McMillon was charged with one count of unlawful possession of a schedule II controlled substance in violation of section 18-18-204, 8B C.R.S. (1994 Supp.). McMillon filed a motion to suppress the cocaine found in her purse. The trial court conducted a suppression hearing, and at the suppression hearing, Deputy Hicks was asked if he was concerned about anything in the car after he had arrested the driver, and after the passenger had been removed from the car and he had found the syringe. Deputy Hicks responded:

Yes, weapons. Incident to the search, I didn't want to hand [the defendant] her purse, or whichever purse it was, with a weapon in--in it, a gun or a knife, so I proceeded to look into that purse.

Deputy Hicks further testified that he suspected the syringe could be drug paraphernalia and was concerned about the possibility of other drugs in the car. After finding the syringe, Deputy Hicks returned to the passenger side of the automobile and searched the car, including the purse that McMillon had placed on the passenger seat.

During direct examination, the prosecutor additionally asked Deputy Hicks if identification was the only thing he was looking for in the purse, and he replied:

No, I was also looking for weapons. I didn't want to hand [the defendant] her purse with a gun or a knife in it.

Deputy Hicks additionally testified that he did not have any reason to know which purse belonged to which person. Further, the offense report stated that "[Deputy Hicks] proceeded to check a black purse that was laying on the right front passenger's seat for proper ownership."

At the conclusion of the suppression hearing, the trial court ruled that Deputy Hicks' search was a valid search of the interior of the passenger compartment of an automobile incident to a lawful arrest. Further, the trial court determined that Deputy Hicks had probable cause to believe that drugs might be found inside the vehicle based upon the driver's prior history of possession of drug paraphernalia, the existence of the syringe in plain view, and the fact that the officer had ruled out that the syringe was being used legitimately by a diabetic. Accordingly, the trial court denied McMillon's suppression motion.

At trial, McMillon was convicted of possession of a controlled substance and sentenced to four years' probation.

On appeal, the court of appeals reversed McMillon's conviction, holding that the search of McMillon's purse was illegal and that the evidence seized from the purse should have been suppressed.

We granted certiorari review on the following two issues:

[Petitioner's Issue] Where a police officer lawfully arrested the driver of an automobile and had probable cause to search the passenger compartment, whether the court of appeals erred in holding that the officer's search of a passenger's purse in the vehicle was not proper either (1) under the "automobile exception" or (2) as a search of a vehicle incident to a lawful arrest of an occupant of the vehicle.

[Cross-Petitioner's Issue] Whether the search of the defendant's purse violated the Colorado Constitution, since the greater protections under the Colorado Constitution prohibit the warrantless searches authorized by New York v. Belton, 453 U.S. 454[, 101 S.Ct. 2860, 69 L.Ed.2d 768] (1981).

II.

McMillon contends that the police officer illegally searched her purse in the course of an automobile search undertaken pursuant to the arrest of the driver of the car. McMillon maintains that the evidence seized as a result of that search should have been suppressed.

The trial court found that the initial traffic stop of the vehicle was lawful and that Deputy Hicks had probable cause to search the interior of the vehicle for drugs after he found the syringe. The trial court made the following findings of fact:

I don't find that this police officer had probable cause to look into the defendant's purse. I find that he didn't need probable cause. I find that the purse was in the interior of the vehicle, and if he either had the right to search the interior of the vehicle or if he had probable cause to search the interior of the vehicle, then he had the right to search the defendant's purse even though he didn't have probable cause to go into that purse, and that's essentially what I find.

I find he didn't need probable cause to conduct a search of the interior of the vehicle because that search was conducted pursuant to a lawful arrest.

I find that he did have probable cause to search the interior of the vehicle for drugs because he found a syringe between the driver's side seat and console, and when he checked on the record of the driver, she had a record for possession of drug paraphernalia.

When those two facts are put together, I find that he had probable cause to believe that the driver may well have been in possession of drugs and that those drugs may well have been in the vehicle that the driver was in control of.

Although the trial court concluded that Deputy Hicks did not have probable cause to search McMillon's purse for drugs, the court found that the search was nevertheless authorized as a search incident to the driver's arrest under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In addition, the court concluded that the search of the purse was permitted as the search of a container inside a vehicle under California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), ² since there was probable cause to search the interior of the vehicle for drugs.

The court of appeals agreed that Deputy Hicks had "probable cause sufficient to permit a general search of the passenger compartment." McMillan, 870 P.2d at 495. The court of appeals, however, concluded that the automobile exception could not be applied to justify the search of the purse because Deputy Hicks did not have probable cause to search the purse, which he knew or should have known belonged to McMillon.

A warrantless search of a vehicle is per se unreasonable under Article II, Section 7, of the Colorado Constitution, and the Fourth Amendment to the United States Constitution unless it falls within one of the recognized exceptions to the warrant requirement. See People v. Edwards, 836 P.2d 468, 471 (Colo.1992) (citing Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980)). The automobile exception, one of these exceptions, permits police officers "to search an automobile without a warrant when they have probable cause to believe the vehicle contains weapons or other evidence of a crime." People v. Naranjo, 686 P.2d 1343, 1346 (Colo.1984); Colorado v. Bannister, 449 U.S. 1, 3, 101 S.Ct. 42, 43, 66 L.Ed.2d 1 (1980) (stating that the automobile exception "exists when an automobile or other vehicle is stopped and the police have probable cause to believe it contains evidence of a crime"). "In the case of a search, probable cause means reasonable grounds to believe that contraband or evidence of criminal activity is located in the area to be searched." People v. Melgosa, 753 P.2d 221, 225 (Colo.1988).

The trial court relied upon three factors in finding that Deputy Hicks...