People v. Olivas, 93SA116

• Decision Date: 04 October 1993
• Docket Number: No. 93SA116,93SA116
• Citation: 859 P.2d 211
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jose Luis OLIVAS, aka Sergio Olivas, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 211

859 P.2d 211

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jose Luis OLIVAS, aka Sergio Olivas, Defendant-Appellee.

No. 93SA116.

Supreme Court of Colorado,

En Banc.

Oct. 4, 1993.

John Suthers, Dist. Atty., Fourth Judicial District, Larry E. Schwartz, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, William Trujillo, Deputy State Public Defender, Colorado Springs, for defendant-appellee.

Justice ERICKSON delivered the Opinion of the Court.

This is an interlocutory appeal by the prosecution pursuant to C.A.R. 4.1. The defendant, Jose Luis Olivas, a/k/a Sergio Olivas Ortiz, a/k/a Sergio Olivas, was charged with possession of marijuana and possession of marijuana with intent to distribute. See § 18-18-106(4), 8B C.R.S. (1986), and § 18-18-106(8), 8B C.R.S. (1986). Following a preliminary hearing, the defendant was bound over for trial on both counts. The defendant filed a motion to suppress the marijuana seized as a result of the search of the 1977 Buick he was driving even though he had consented to the search at the time of his arrest. After a hearing, the trial court suppressed the marijuana seized in the search. We reverse and remand for further proceedings consistent with this opinion.

I

On November 22, 1992, Trooper Miranda of the Colorado State Patrol stopped the defendant, who was driving a 1977 Buick, because the windshield was cracked. The stop occurred at approximately 8:00 p.m. on Interstate 25 near Colorado Springs. Trooper Miranda learned the automobile which the defendant was driving had New Mexico license plates which were not registered in New Mexico computer records. After the stop occurred, Trooper Miranda asked the defendant to produce his driver's license. He produced a license issued by the state of Texas and told Trooper Miranda that he was en route to Denver from El Paso, Texas. He did not have registration papers or any evidence of ownership and said that the Buick belonged to Ramon Gutierrez of Las Cruces, New Mexico. The defendant also volunteered that there were some items in the glove compartment. When the glove compartment was opened it contained no vehicle registration documents or anything to establish ownership, valid insurance coverage, or vehicle identification. Trooper Miranda issued a warning ticket to the defendant for the cracked windshield and asked whether he was carrying illegal weapons, illegal drugs, or large amounts of money. ¹ The defendant said "no," and at Trooper Miranda's request, voluntarily consented to a search of the automobile. ²

During the search, Trooper Miranda opened the trunk and saw that it contained no luggage. When Trooper Miranda inspected the automobile's spare tire compartment, the defendant commented that there weren't any drugs in there. The search of the automobile revealed no evidence of contraband until Trooper Miranda noticed that the panel on the left front door of the Buick was loose and was separated from the door by one to two inches. Trooper Miranda testified that he looked behind the loose driver's side door panel with a flashlight and without touching the panel saw plastic packages. Trooper Miranda then pulled a loose section of the panel back and observed what appeared to be plastic packages of marijuana. When the door panel was subsequently removed, small plastic packages containing forty-nine pounds of marijuana were found. The defendant initially claimed that he did not know that marijuana was hidden in the door. After he was advised of his rights and made a statement, the defendant was told that he could be prosecuted as a special offender if more than 100 pounds of marijuana were found in the automobile. ³ At that point the defendant replied that the automobile did not contain that much marijuana.

The primary question before the trial court was the scope of the consent given by the defendant to search the automobile which he was driving. The trial court considered significant the fact that the defendant was not advised he could refuse to give his consent to the search. The trial court also questioned whether Trooper Miranda could see behind the panel before it was pulled away from the door. After considering all of the factors involved, the trial court stated:

[T]he primary issue seems to be the scope of the search. It appears to me although Mr. Olivas did consent and agreed that the car would be searched and apparently cooperated in the search of the trunk, I would not find based on the consent form I have or on any testimony that I heard that [the] consent extended to pry off the panels of the car. [The car] was basically destroyed on the inside. And I would find the officer went in fact beyond the scope of what is an admissible search and would therefore suppress the evidence that was seized after he had pried off the panels.

It seems to me also that although it's not required under case law, that the forms the police department use really should have the right to refuse on those forms. It appears to me that would be a lot more--I guess a lot more indicative of their intent if they would simply state on the form, "You need not sign this form, but if you do consent, we will proceed to search at that point."

So what I would find is that the scope of the search was beyond what would be acceptable, based on the kind of consent that was given in this case, therefore suppress the evidence that was seized.

II

In the absence of a clear statement that a suppression ruling is grounded on the Colorado Constitution, as opposed to the United States Constitution, the presumption is that a trial court relied on federal constitutional law in reaching its decision. People v. McKinstrey, 852 P.2d 467, 469 (Colo.1993); People v. Inman, 765 P.2d 577, 578 (Colo.1988). Therefore, the sole issue in this interlocutory appeal is whether the Fourth Amendment requires suppression of the evidence.

The prosecution claims that the search behind the door panels of the automobile was constitutionally permissible because it would have been objectively reasonable for the defendant to understand that by consenting to a "complete" search of the automobile, he also consented to the search of those parts of the automobile that provide places where narcotics could be hidden, such as behind loose door panels, in the crevices of the trunk, or behind the spare tire. We agree, and conclude that the trial court erred in its determination that the search behind the door panels of the automobile exceeded the scope of consent given by the defendant.

III

A

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Minnesota v. Dickerson, 508 U.S. 366, ----, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993); Florida v. Jimeno, 500 U.S. 248, ----, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Jimeno, at ----, 111 S.Ct. at 1803 (quoting Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). The United States Supreme Court has long approved consensual searches. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). Consent to search eliminates the requirement for a search warrant so long as the search is reasonable and within the scope of the consent. People v. Kennard, 175 Colo. 479, 488 P.2d 563 (1971).

The scope of a warrantless search is generally defined by its expressed object, United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982), and a consensual search may not legally exceed the scope of the consent supporting it. Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Jimeno, 500 U.S. at ----, 111 S.Ct. at 1804. Whether a search remained within the boundaries of the consent is a factual question to be determined from the totality of the circumstances, and the trial court's factual determinations will be upheld on appeal unless they are clearly erroneous. United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986); United States v. Sierra Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978).

B

The question presented in this case is whether the defendant's general consent to search the automobile included consent to search areas behind loose door panels that police officers believed might contain contraband. The United States Tenth Circuit Court of Appeals has consistently upheld similar consent searches of automobiles.

In United States v. Torres, 663 F.2d 1019 (10th Cir.1981), the Tenth Circuit upheld a consensual search of the area behind a door panel of an automobile after a police officer was able to see suspected stolen money in the well of an ashtray he had pulled out from the door. In finding that the search had not exceeded the scope of general consent that the defendant had given to authorities to perform a "complete" search of the automobile, the court stated:

Unquestionably, [the defendant] gave his voluntary consent when he signed the form which was provided him. This explained that a complete search was to be made, and thus, of course, it logically follows permission to search contemplates a thorough search. If not thorough it is of little value. A complete search was authorized, and it should have been anticipated that it would be a careful one, although the defendant may have thought that the officers might overlook the money.

Id. at 1027 (citations omitted).

In United States v. Espinosa, 782 F.2d 888 (10th Cir.1986), the Tenth Circuit again upheld a consensual...