People v. Slusher, 90CA1106

• Decision Date: 02 July 1992
• Docket Number: No. 90CA1106,90CA1106
• Citation: 844 P.2d 1222
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Floyd David SLUSHER, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1222

844 P.2d 1222

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Floyd David SLUSHER, Defendant-Appellant.

No. 90CA1106.

Colorado Court of Appeals,

Div. IV.

July 2, 1992.

Rehearing Denied Aug. 13, 1992.

Certiorari Denied Feb. 1, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Laurel E. Adams, April B. Stone, Sp. Deputy State Public Defenders, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Floyd David Slusher, appeals from the judgment of conviction entered on a jury verdict finding him guilty of three counts of sexual exploitation of a child and one count of being an habitual offender. He also challenges the constitutionality of the sentence imposed. We affirm.

In February 1989, the Lakewood Police Department began investigating reports from an informant that defendant had taken nude photos of and had sexually assaulted a young boy, J.S.

Because defendant was on parole, the investigating officer spoke several times during her investigation with defendant's parole officer and exchanged information with that department. She also spoke with J.S., his mother, J.S.'s social worker, and with a Boulder detective regarding a 1977 investigation and conviction of defendant for sexual assault on a child.

Although the officer was able to corroborate many aspects of the informant's report, she did not believe she had probable cause to obtain a search warrant for defendant's residence. However, based upon information relayed to them by the officer, the parole department decided to conduct a search for evidence of parole violation.

Subsequently, three parole officers went to defendant's home and in his presence searched his house. The investigating officer and another Lakewood police officer accompanied the parole officers but remained outside. Among the items discovered by the parole officers were four boxes of slides, which they turned over to the investigating officer. She looked at three random slides, recognized the child in the photos as J.S., and left to obtain a search warrant.

The officer returned to defendant's residence with a warrant which she presented to defendant. Then, she and another Lakewood officer searched the house and seized photographs, videos, photography equipment, and personal papers and effects.

As pertinent here, defendant was charged with sexual exploitation of a child in violation of § 18-6-403, C.R.S. (1991 Cum.Supp.). The three counts alleged that defendant (1) caused or induced J.S. to engage in explicit sexual conduct for the making of sexually exploitative material; (2) prepared or produced sexually exploitative material; and (3) possessed sexually exploitative material.

Prior to trial, defendant moved for suppression of, inter alia, all evidence seized during the searches on the grounds that both searches were illegal. The court, after a full hearing, denied the motion, and the convictions here at issue followed.

I.

A.

Defendant contends that the search of his home by the parole officers was illegal because they had no reasonable cause to support the search. Thus, defendant argues that any evidence seized as a result of that search and any fruits thereof must be suppressed. We disagree.

The Fourth Amendment and Colo. Const. art. II, § 7, protects persons against unreasonable searches and seizures. However, when a parolee is the subject of the investigation, this requirement is satisfied if the parole officer who is investigating a parole violation has reasonable grounds to believe that a parole violation has occurred. Under such circumstances, the need for a search warrant is eliminated. People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975).

Here, the trial court found that the parole officers knew the following facts: that defendant was on parole; that the underlying earlier offense was sexual assault on a child; that an informant had alleged that defendant, while on parole, had taken nude photographs and sexually assaulted a child named J.S.; that J.S. was a real person; that defendant knew the informant; and that many of the facts relayed to the investigating officer by the informant had been corroborated by the officer.

Based upon these facts, the trial court did not err in determining that the defendant's parole officer had reasonable grounds to believe defendant might be sexually exploiting J.S. in violation of § 18-6-403 and, thus, that defendant had violated parole and that a parole search was appropriate.

B.

Defendant next contends that the slides which the parole officers discovered during their search and which were handed over to the investigating officer were then illegally "seized" by the investigating officer because she was without a search warrant at the time. We do not agree.

The fact that a person is on parole does not justify a search without a warrant by any law enforcement officer other than a parole officer. However, evidence seized within the scope of a reasonable search by a parole officer, even if unrelated to the parole violation, is admissible in the prosecution of another crime. People v. Anderson, supra.

Here, the investigating officer and another Lakewood police officer waited outside while the parole officers conducted a search of defendant's house and did not take part in the parole search. Thus, the slides which the parole officers discovered during their search and which they subsequently turned over to other police officers were admissible in a prosecution against defendant. See People v. Anderson, supra (evidence seized by parole officer was delivered to a police detective and used in a separate prosecution).

C.

We also disagree with defendant's assertion that the evidence should have been suppressed because the parole officers were acting as agents of the Lakewood Police Department.

Here, the trial court found, with record support, that although the decision to conduct a parole search was based upon information relayed to the parole department by the police, the decision to search was made by the parole department, not by the police. And, although the police accompanied the parole officers at the latter's request, the police did not participate in the parole search. Moreover, based upon evidence gathered during their search, the parole officers arrested defendant for parole violation. See People v. Anderson, supra (a parole officer may cause a police officer to accompany him when a parole search is being made); State v. Johnson, 748 P.2d 1069 (Utah 1987) (a parole search is not unlawful just because it is also beneficial to the police).

Based on these facts of record, the trial court concluded that the search was "a valid search for parole purposes and not as a police subterfuge." We will not disturb that conclusion on appeal. See People v. Fish, 660 P.2d 505 (Colo.1983).

II.

Defendant further contends that the trial court erred in denying his motion to suppress evidence obtained pursuant to a search warrant obtained by the police after the parole search. Again, we disagree.

A.

We first reject defendant's contention that the affidavit failed to establish probable cause to believe that the property to be seized was located at defendant's house.

Probable cause exists when an affidavit for a search warrant alleges sufficient facts to lead a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Quintana, 785 P.2d 934 (Colo.1990). The reviewing court's duty upon review is to determine whether the district court had a substantial basis for concluding that probable cause to support the search warrant existed. Deference must be given to the issuing court's determination of probable cause. People v. Wilson, 819 P.2d 510 (Colo.App.1991).

Here, the affidavit included information, inter alia, concerning the slides discovered earlier that day at defendant's home by the parole officers, one of which depicted J.S. nude and lying on a bed. Because we have concluded that these slides were properly seized and turned over to the investigating officer, and because the slides established that evidence of a crime was found at the home just prior to application for the warrant, we find no error in the trial court's determination of probable cause.

B.

Defendant next contends that the trial court erred by not suppressing evidence, in addition to the four boxes of slides, later seized by the Lakewood police because the description of the particular property to be seized was omitted from the face of the search warrant. Because we conclude that the attached affidavit cured the particularity defect of the search warrant, we disagree.

The Fourth Amendment prohibits general exploratory searches, Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963), and requires that a search warrant must describe with particularity the objects to be seized. People v. Hearty, 644 P.2d 302 (Colo.1982).

Here, it is uncontroverted that the description of the particular property to be seized was omitted from the search warrant. Because of this omission, the warrant stated only that the property to be seized was property "[w]hich is or has been used as a means of committing a criminal offense; or [t]he possession of which is illegal; or [w]hich would be material evidence in a subsequent criminal prosecution." Hence, the warrant is invalid on its face because it does not particularly describe the items to be seized. See People v. Donahue, 750 P.2d 921 (Colo.1988); People v. Drumright, 172 Colo. 577, 475 P.2d 329 (1970).

The People argue, however, that because the supporting affidavit specifically described the property to be seized and was attached to the search warrant at the time the warrant was executed, the constitutional mandate of sufficiency of description is...