People v. Morrison, 28036

• Decision Date: 25 September 1978
• Docket Number: No. 28036,28036
• Citation: 583 P.2d 924,196 Colo. 319
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kenneth Paul MORRISON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 924

583 P.2d 924

196 Colo. 319

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kenneth Paul MORRISON, Defendant-Appellee.

No. 28036.

Supreme Court of Colorado, En Banc.

Sept. 25, 1978.

Nolan L. Brown, Dist. Atty., Robert D. Kelly, Michael B. Tully, Deputy Dist. Attys., Golden, for plaintiff-appellant.

Myers, Woodford & Hoppin, P. C., Charles T. Hoppin, Denver, for defendant-appellee.

CARRIGAN, Justice.

In this murder case, the People, by interlocutory appeal, challenge the trial court's pretrial orders: (1) suppressing the testimony of one Esther Garcia; and (2) ruling that the defendant's two prior burglary convictions could not be used against him for impeachment purposes. We reverse the order suppressing Mrs. Garcia's testimony, but affirm the ruling against admissibility of the defendant's prior convictions.

On November 15, 1975, the body of a murder victim was discovered. Upon investigation, the police learned that the victim had last been seen in the presence of the defendant Morrison and another man. Later the same day, personnel from the Jefferson County Sheriff's office, accompanied by a deputy district attorney, went to Morrison's apartment. Their visit was motivated by concern for the safety of Morrison and his family since he had been seen with the murder victim.

Upon arriving at the apartment house, the officers spoke with the manager. He told them that the Morrisons had moved into the apartment one week earlier, and had paid one-half of the first months' rent plus a security deposit, but had not signed the usual rental agreement. He stated that he had not seen the Morrisons for at least three days.

The officers then went to the apartment where they discovered, on the doorknob, an advertising packet that had been delivered several days earlier. They knocked on the door and, receiving no response, recontacted the apartment manager who opened the apartment door for them.

Upon entering the apartment, the officers conducted a search which revealed no injured or dead victims on the premises. They also observed that the closet doors had been left open and all of the clothing, bedding and personal effects had been removed from the apartment. Only containers of trash were left and most of these were in the kitchen area.

The next day an investigator from the sheriff's office, without a warrant, returned and thoroughly searched the apartment. He found in a trash pile an empty pill bottle on which appeared the name of Esther Garcia and an address in Rawlins, Wyoming. Mrs. Garcia was later located in Rawlins and interviewed. She gave a full statement describing Morrison's involvement in the murder and his flight from Denver to Rawlins. An information subsequently charged Morrison with first-degree murder and listed Mrs. Garcia as a witness. He was later apprehended in Nebraska and extradited.

Defense counsel moved to suppress all testimony of Esther Garcia as derived from an unconstitutional search of the apartment. The People countered by arguing that Morrison had abandoned the apartment before the search and therefore he had no standing to raise this issue.

The trial court ruled that the defendant had standing to challenge the search, even though it appeared that he had abandoned the apartment, because he retained some rights in the apartment based on his partial payment of the first month's rent. The second search of the apartment without a warrant was held unreasonable, and since Mrs. Garcia had been located from the information on the pill bottle discovered in that search, her testimony was ordered suppressed.

The People here renew their contention that the defendant had no standing to contest the constitutionality of the apartment search because he had abandoned the premises. We agree.

The constitutional protections against unreasonable search and seizure are personal to the one asserting them. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). To challenge a search and seizure the complaining party must establish that he had a reasonable expectation that the premises searched and the items seized would be free from nonconsensual, unreasonable police intrusion. People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976). In Pearson we stated:

"To establish standing to challenge a search and seizure, the challenger has the burden of alleging and proving that he has a reasonable expectation of privacy against nonconsensual police intrusions. The party contesting the search has no standing unless he has an ownership or possessory interest in the premises. A possessory interest may be established by one lawfully in possession at the time of the search, or by one reasonably believing he has a claim of title to, or a colorable interest in the premises . . .." 546 P.2d at 1264.

Here, even if Morrison had not formally relinquished all technical indicia of tenancy in the apartment, his actions unequivocally demonstrated that he had abandoned the apartment and no longer retained any reasonable expectation of privacy in either the apartment or its contents. See United States v. Wilson, 472 F.2d 901, 902 (9 Cir. 1973). ¹ When he abandoned the apartment, any standing he previously might have had to object to a subsequent search and seizure terminated. Smith v. People, 167 Colo. 19, 445 P.2d 67 (1968).

The question of abandonment is "an ultimate fact or conclusion based generally upon a combination of act and intent." Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1967). The record shows that no personal effects, bedding or clothing were found in the apartment. Morrison never returned to the apartment but left the state. Nor did he ever claim any items left in the apartment. The only items discovered were in a trash pile in a room that clearly had been vacated. In fact the particular item involved, a pill bottle, was not his and there was no showing that he had any special privacy interest in it.

Furthermore, Morrison never attempted to pay the remainder of the first month's rent. All his actions indicated that he had left the apartment with no intention of returning and that he no longer felt any proprietary interest in the apartment or its contents. There was no evidence presented to contradict this clear showing of abandonment.

The rationale of Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4...