People v. Shover
| Decision Date | 19 February 2009 |
| Docket Number | No. 07CA0187.,07CA0187. |
| Citation | 217 P.3d 901 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Martin SHOVER, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge WEBB.
Defendant, John Martin Shover, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of chemicals or supplies to manufacture methamphetamine, section 18-18-405(1), (2)(a)(I)(A), C.R.S.2008, and possession of a precursor for methamphetamine, section 18-18-412.5, C.R.S.2008.
We conclude that Shover's suppression motion was properly denied because the chemicals seized from a room in Shover's residence were in plain view of an officer who entered the residence with the consent of Shover's wife to search the entire premises, despite Shover's earlier efforts to exclude her from that room. We discern no abuse of the trial court's considerable discretion in denying Shover's challenges for cause. Therefore, we affirm.
Shover first contends the trial court should have suppressed the chemicals seized without a warrant from a room in their residence that he had padlocked and told his wife not to enter, because she had neither actual nor apparent authority to consent to a search of this room, and because exigent circumstances were not established. We conclude that the first officer properly relied on the wife's consent to enter the residence and proceed to the doorway of this room, where the chemicals were in his plain view, and that because she was a co-owner or co-tenant, he could have entered the room to effect a warrantless seizure without exigent circumstances.
Review of a trial court's suppression order is a mixed question of law and fact. We defer to the trial court's findings of fact if those findings are supported by competent evidence in the record, but review the trial court's legal conclusions de novo. People v. Gothard, 185 P.3d 180, 183 (Colo.2008); People v. Pitts, 13 P.3d 1218, 1221-22 (Colo. 2000).
According to the officers' uncontroverted testimony at the suppression hearing, the wife called police because she suspected that Shover was manufacturing methamphetamine in a room in their house. When the first officer arrived, she let him in and escorted him to this room. She told the officer that she and Shover had been having marital problems; a few days before, Shover had padlocked the door to the room and instructed her not to enter it; she had pried the lock off before the officer arrived; and she felt she had a right to be anywhere in the house, including the room.
The wife went into the room and opened the lid to a cooler. From the doorway, the officer could then see bottles he thought contained red devil lye and hydrogen peroxide. He also saw a scale and some glass tubing. Based on his experience, he concluded that the items were involved in manufacturing methamphetamine and radioed for assistance from an officer in the narcotics unit.
When the narcotics officer arrived, he went into the house and from the hallway adjacent to the room saw a one-gallon jug labeled "Muriatic Acid" and the bottle of red devil lye. He concluded that the room was being used to manufacture methamphetamine and evacuated the house because the chemicals were flammable.
Although a warrant was not obtained, other officers arrived, processed the scene as a meth lab, and seized the chemicals and equipment. Neither officer testified that the wife had separately consented to the seizure.
The trial court found that the wife was not acting as an agent of the police officers; she, not the officers, had pried open the door and opened the cooler; she had authority to consent to the search because she was a co-owner or co-tenant of the house; Shover could not limit her authority to access any part of it; and both officers observed the chemicals in plain view from the hallway. Without addressing exigent circumstances, the court denied the motion to suppress because the officers were validly in the home based on the wife's consent and they observed the chemicals in plain view.
"[W]arrantless searches and seizures are presumptively invalid under the Fourth Amendment to the U.S. Constitution and article II, section 7 of the Colorado Constitution unless justified by an established exception to the warrant requirement." Gothard, 185 P.3d at 183.
The discovery of evidence in plain view of an officer who is validly on the premises is not a warrantless search implicating the Fourth Amendment. See People v. Kluhsman, 980 P.2d 529, 534 n. 5 (Colo.1999). However, the warrantless seizure of such evidence violates the Fourth Amendment unless it falls within a recognized exception to the warrant requirement. One such exception is the plain view doctrine, which allows police to seize, without a warrant, evidence that is plainly visible, so long as: (1) the initial police intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence was incriminating; and (3) the police had a right of access to the evidence. Gothard, 185 P.3d at 183; see also Kluhsman, 980 P.2d at 534.
The difference between the first requirement and the third requirement is "that the former refers to where the officer stands when she sees the item, and the latter to where she must be to retrieve the item." Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir.2004). Separate analysis of the third requirement arises "in situations such as when an officer on the street sees an object through the window of a house" because using the plain view doctrine to justify a warrantless seizure "would require a warrantless entry upon private premises." United States v. Naugle, 997 F.2d 819, 823 (10th Cir.1993). No reported Colorado plain view case has addressed this distinction.
"When the police are legitimately on the premises pursuant to a valid consent, they may seize incriminating evidence in plain view." People v. Reynolds, 672 P.2d 529, 532 (Colo.1983). However, a warrantless search conducted on the basis of consent is limited by the authority of the consenting party. People v. White, 64 P.3d 864, 872 (Colo.App.2002). Thus, plain view does not justify seizure of items if, as Shover argues here, the officers went beyond the wife's authority. People v. Roark, 643 P.2d 756, 770 (Colo.1982).
"[W]here an individual shares with others common authority over premises or property, he has no right to prevent a search in the face of the knowing and voluntary consent of a co-occupant with equal authority." People v. Sanders, 904 P.2d 1311, 1315 (Colo.1995); see also People v. Savage, 630 P.2d 1070, 1073 (Colo.1981) ().
For purposes of third-party consent, actual and apparent authority "are not intended to imply the particularized meanings . . . as developed in the law of agency." People v. Hopkins, 870 P.2d 478, 480 n. 3 (Colo.1994). Rather, courts use these phrases "to differentiate between situations in which a consenting party actually possesses common authority over property from situations in which it reasonably appears, based on all the surrounding circumstances, that the consenter has such authority though, in fact, he does not." Id. Such a search "does not violate the Fourth Amendment because it is not unreasonable." White, 64 P.3d at 872.
Numerous cases uphold a search of marital premises based on the consent of one spouse. Compare People v. Payne, 839 P.2d 468, 469 (Colo.App.1992) () (collecting state cases), with Moore v. Andreno, 505 F.3d 203, 210-11 (2d Cir.2007) () (collecting federal cases).
Shover's reliance on Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (), is misplaced because he was not present when the wife consented. See People v. Miller, 143 P.3d 1195, 1196 (Colo.App.2006) (). Shover cites no case, nor have we found one, applying Randolph unless the nonconsenting occupant was both present and expressly objected to the search.
The following statements by the Randolph majority indicate that its holding applies only in those circumstances:
• "[T]he potential objector, nearby but not invited to take part in the threshold colloquy, loses out." 547 U.S. at 121, 126 S.Ct. 1515.
• "[T]here is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it." Id. at 121-22.
• "[I]t would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received." Id. at 122.
• "The...
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