People v. Spies

• Decision Date: 25 August 1980
• Docket Number: No. 80SA25,80SA25
• Citation: 615 P.2d 710,200 Colo. 434
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Craig SPIES, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 710

615 P.2d 710

200 Colo. 434

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Craig SPIES, Defendant-Appellee.

No. 80SA25.

Supreme Court of Colorado, En Banc.

Aug. 25, 1980.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Marks & Olom, Jonathan L. Olom, Denver, for defendant-appellee.

LOHR, Justice.

In this interlocutory appeal pursuant to C.A.R. 4.1, the People challenge the trial court's order granting the defendant's motion to suppress physical evidence. We reverse and remand for further proceedings.

On the evening of March 16, 1979, a police officer observed an Oldsmobile automobile in the parking lot of Mile High Stadium. A temporary license was displayed on the rear window of the Oldsmobile, but the vehicle described on the temporary license was a Dodge. Upon inquiry the officer learned that the Denver police department had received a report that the Oldsmobile had been stolen. The police kept the vehicle under surveillance. Later that evening the defendant and a woman entered the Oldsmobile, and both were arrested. An officer then searched the vehicle and found another temporary license plate crumpled up on the floor of the back seat. This temporary license plate had been issued for a vehicle other than the Oldsmobile. The police investigated and learned that both temporary license plates had been stolen.

The defendant was charged with aggravated motor vehicle theft, section 18-4-409, C.R.S. 1973 (1978 Repl.Vol. 8) (1979 Supp.), ¹ and theft by receiving, section 18-4-410, C.R.S. 1973 (1978 Repl.Vol. 8). Both charges were based upon theft of the Oldsmobile. The trial court granted the defendant's motion to suppress the crumpled temporary license plate found inside the automobile. ²

In this appeal the People do not contend that the search of the interior of the automobile was consistent with constitutional provisions prohibiting unreasonable searches. See U. S. Const. Amends. IV, XIV; Colo.Const. art. II, § 7. Instead, the People claim that the defendant lacks standing to question the legality of the search. We shall consider this claim first within the framework of the Fourth Amendment to the Constitution of the United States and then within the framework of Colo.Const. art. II, § 7.

I.

The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976); People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973). Establishment of such a violation gives an individual "standing" to assert the issue of the legality of the search or seizure. See Rakas v. Illinois, supra; People v. Pearson, supra.

The defendant contends that he has automatic standing to assert that the search of the automobile and the seizure of the temporary license were illegal, under the authority of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That case held that, where possession of the seized evidence is an essential element of the offense charged, the defendant is not obligated to establish that his own Fourth Amendment rights were violated but only that the search and the seizure were unconstitutional. ³ In the instant case an element of the crime of aggravated motor vehicle theft with which the defendant is charged is retention of possession or control of the vehicle for more than seventy-two hours. The information charges that the required period of possession occurred some time between August 18, 1978, and March 16, 1979, the date of the challenged search and seizure. Thus, the defendant contends that he is not required to establish that his own Fourth Amendment rights were violated in order to challenge the legality of the search and seizure. ⁴

Whether the defendant would have automatic standing to claim violation of his Fourth Amendment rights under the rule of Jones v. United States, supra, is a question we need not consider. The automatic standing rule of Jones has been overruled recently by the United States Supreme Court in United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). There, the court noted that the underpinnings of Jones had been substantially destroyed by later decisions.

The automatic standing rule of Jones was created to solve two problems which no longer exist. First, absent such a rule a defendant charged with a possessory offense might be able to establish standing to challenge a search and seizure only by giving self-incriminating testimony which would be admissible at his trial as evidence of guilt. This problem has been eliminated by the decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In Simmons it was held that testimony given by a defendant in support of a motion to suppress evidence on Fourth Amendment grounds cannot be admitted in evidence against the defendant at trial on the issue of guilt unless the defendant makes no objection. ⁵

Second, it was considered inappropriate to permit the People to maintain contradictory positions. At the suppression hearing, in order to avoid the conclusion that a defendant had standing, the People would assert that he did not have possession of the property seized. Later, at the trial, the People would assert that the defendant did have such possession, in order to establish an element of the substantive offense. In United States v. Salvucci, supra, the court found the concern as to the appropriateness of permitting such contradictory positions to have been resolved in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). That case established that the essential inquiry to determine a defendant's ability to contest the legality of a search is not whether he had possession of the item seized but whether he had a legitimate expectation of privacy in the invaded place. Possession of the place searched or of the item seized is but one factor bearing on that question; possession is not the sole criterion to determine whether a protected Fourth Amendment interest exists. Id. Thus, without being legally contradictory, the People can maintain that a defendant possessed the property in question but that his Fourth Amendment rights were not violated by seizure of the property. See United States v. Salvucci, supra.

Salvucci establishes that the defendant has no automatic right under the Fourth Amendment to assert the illegality of the search and seizure.

II.

Next, we must consider whether the automatic standing rule should be applied in the instant case to protect those values guaranteed by Colo.Const. art. II, § 7.

The first concern expressed in Jones v. United States, supra that the defendant may be able to establish standing only by giving self-incriminating testimony which would be admissible at his trial as evidence of guilt is greatly diluted in the case at bar.

At the suppression hearing it was the defendant's position that he was in possession of the vehicle, but that the possession was not wrongful. At the defendant's request his affidavit was received in evidence at that hearing. The affidavit states that the Oldsmobile was provided to the defendant for his personal use in December 1978; that he used the vehicle at all times under the belief that it was not stolen and that the party providing it for his use was authorized to do so; and that at the time of his arrest the defendant believed that he was in lawful possession of the vehicle based upon the authorization he had been given to use the Oldsmobile. Thus, although the defendant claims automatic standing, he has already placed of record his sworn statement with respect to possession of the Oldsmobile and his state of mind with respect to his right to use the vehicle. These are the matters central to a determination whether the defendant has a constitutionally protected interest which would permit him to object to the unlawful search and seizure. See Rakas v. Illinois, supra ; ⁶ People v. Pearson, supra. To recognize automatic standing in the defendant at this time would not prevent the use of the affidavit for impeachment at the trial in any manner consistent with the law. See United States v. Salvucci, supra.

The second concern expressed in Jones that it is inappropriate to permit the People to maintain contradictory positions at the suppression hearing and at the trial is not present in this case. The People do not base their claim that the defendant lacks standing to challenge the search upon a contention that the defendant did not have possession of the Oldsmobile. Their position at the suppression hearing was that the defendant's possession was not lawful and thus could not be used as a foundation for standing to challenge the legality of the search. See People v. Pearson, supra. Predictably, in order to establish the crime of aggravated motor vehicle theft, the People's position with respect to possession of the Oldsmobile will be the same at the trial.

The reasons which gave birth to the automatic standing rule have little or no applicability to the facts of this case. Under these circumstances, it is neither necessary nor appropriate to recognize automatic standing in the defendant to challenge the legality of the search. See Rakas v. Illinois, supra. ⁷

III.

In Rakas v. Illinois, supra, it was held that the questions of standing and reasonableness of the search merge into one: whether the government officials violated any legitimate expectation of privacy held by the defendant. Accord, Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); see People v. Little, Colo., 598 P.2d 140 (1979). Such a determination is appropriately based upon the...