People v. Torand

Decision Date26 January 1981
Docket NumberNo. 80SA307,80SA307
Citation622 P.2d 562
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Johnny Lee TORAND a/k/a John Lee Torand, Defendant-Appellee.
CourtColorado Supreme Court

J. E. Losavio, Jr., Dist. Atty., Amy S. Isaminger, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

Alez J. Martinez, Pueblo, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge the ruling of the district court suppressing as evidence a high school graduation ring and a Kodak 110 pocket-size camera seized from the defendant's apartment in Pueblo, Colorado, on December 24, 1979, during a search pursuant to warrant. These items previously had been taken from a woman's apartment during the perpetration of burglary and sexual assault. The district judge concluded that the police obtained knowledge of these items in an illegal manner by exceeding the scope of a prior consent search of the defendant's apartment and, therefore, the search warrant authorizing their seizure was the fruit of the prior illegality. We reverse the suppression order and remand with directions.

I.

The defendant is charged in two separate cases in the Pueblo District Court and the facts pertinent to this appeal grow out of separate suppression orders entered by two different judges. In this case the defendant is charged with the crimes of sexual assault in the first-degree, section 18-3-402, C.R.S.1973 (1978 Repl.Vol. 8), and first-degree burglary, section 18-4-202, C.R.S.1973 (1978 Repl.Vol. 8), allegedly committed on December 10, 1979 in Pueblo, Colorado (the sexual assault case). The defendant is charged in a separate case with a burglary committed at about 12:20 a. m. on December 24, 1979 (the December 24 burglary case). In this latter burglary several items were taken from a home located at 1916 West Street in Pueblo, including a shotgun, a leather gun carrying case, a Pentax 35 millimeter camera, a cassette recorder and a black flight bag.

Shortly after the December 24 burglary Officer Ortiz of the Pueblo Police Department received a dispatch conveying a general description of a prowler in the area of his patrol. The officer, who did not know of the December 24 burglary, observed the defendant carrying a black flight bag and a rifle case. The defendant matched the general description of the prowler and the officer stopped the defendant, obtained his name and address, and then permitted him to leave. About 40 minutes thereafter fellow officer Goddard, who had previously investigated the burglary at 1916 West Street, told Officer Ortiz about it and described the items taken in that burglary. After discussing Ortiz' prior encounter with the defendant both officers decided to go to the defendant's apartment and question him. They arrived there at about 2:20 a. m. and by prearrangement met a third officer, Frank Grubb. They told the defendant they wanted to talk to him about a burglary and advised him of his Miranda rights. The defendant asked them to enter the apartment and, upon being told that they were looking for a shotgun and a 35 millimeter camera, he orally consented to a search of his apartment for these items. The three officers conducted a search of the apartment and gathered up several articles including the shotgun, the gun carrying case, a black flight bag, a cassette player, some knives, and binoculars. All these items were placed by the officers on the top of or next to the dresser in the apartment. The officers mentioned that they had not yet located the Pentax 35 millimeter camera, whereupon the defendant, as found by the court below, "opened a dresser drawer where the camera was located" and it was seized.

During the search Officer Grubb came upon a shaving kit in the bathroom and opened it. Inside the kit he observed a high school graduation ring with the inscription "1969 Frazier" and the initials "D.A.B." He placed the ring back in the shaving kit and then put the kit on the dresser. A Kodak 110 camera also was found but the exact location of the discovery is unclear. It was either placed on the dresser after its discovery or had been on the dresser throughout the search. Upon completion of the search the police took with them most of the items they had placed on or near the dresser. However, they did not take the Kodak 110 camera and the high school ring. The defendant was taken to jail and charged with the burglary committed earlier that evening.

At about 7:00 a. m. on December 24 Officer Goddard, who had previously investigated the sexual assault case, contacted the victim and learned from her that a high school graduation ring and a Kodak 110 pocket camera had been taken from her apartment during the criminal episode on December 10. The graduation ring and the Kodak camera matched the objects observed at the defendant's apartment during the earlier consent search. Based on the observations during the consent search and the sexual assault victim's description of the property taken from her residence, Goddard obtained a search warrant for the defendant's apartment. The Kodak 110 camera and the high school graduation ring were seized. The defendant thereafter was charged with first-degree sexual assault and first-degree burglary committed on December 10, 1979.

In the December 24 burglary case the defendant sought an order suppressing all evidence seized by the police from his apartment during the consent search. Judge Phelps of the Pueblo District Court denied the motion as to the shotgun and its carrying case as well as the Pentax 35 millimeter camera, but granted the motion as to all other items "taken from the defendant's apartment." In his ruling Judge Phelps concluded that the defendant's consent was limited to the shotgun and the Pentax 35 millimeter camera and did not include any other items. 1

In the instant case the defendant requested Judge Robb of the Pueblo District Court to suppress the high school graduation ring and the Kodak 110 camera. In ruling on this motion Judge Robb expressly adopted Judge Phelps' suppression order, which was admitted and received into evidence during the suppression hearing. Judge Robb granted the defendant's motion to suppress. He concluded that, based on Judge Phelps' order of suppression, any knowledge of the ring would have been obtained during an illegal search and, therefore, such knowledge could not be used to support the subsequent search warrant. With respect to the Kodak 110 camera he ruled that even if it had been observed in plain view during the consent search, it could not have been seized at that time and, therefore, knowledge of that item similarly could not be used as the basis for the subsequent warrant. 2

We conclude that the court in this case misapprehended the standards governing consent searches and plain view discoveries. Accordingly, we reverse and remand the case to the district court for application of the appropriate principles in resolving the defendant's suppression motion.

II.

The question whether a consent to search is voluntary is an issue to be determined from the totality of circumstances. E. g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Traubert, Colo., 608 P.2d 342 (1980). The evidence at the suppression hearing in the December 24 burglary case was in conflict on this issue. Judge Phelps found that the defendant did indeed intelligently, knowingly, and voluntarily consent to the search and limited his consent to the search for the shotgun and the Pentax 35 millimeter camera. Judge Robb adopted in toto this finding of fact and we will not disturb it in this proceeding. The central issue here relates not to findings of fact but instead to the application of legal principles to those findings.

A voluntary consent to search is a waiver of whatever right the consenting person had to prevent the police from searching. E. g., Schneckloth v. Bustamonte, supra. Such consent may be confined in scope to specific items, e. g., United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971); Honig v. United States, 208 F.2d 916 (8th Cir. 1953); People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976); People v. Harwood, 74 Cal.App.3d 460, 141 Cal.Rptr. 519 (1977); People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933 (1943), or may be restricted to certain areas or locations, e. g., United States v. Dichiarinte, supra; United States v. Taibe, 446 F.Supp. 1142 (E.D.N.Y.1978), aff'd, 591 F.2d 1333 (2d Cir. 1978), cert. denied, 444 U.S. 1071, 100 S.Ct. 1013, 62 L.Ed.2d 752 (1980); People v. Billington, supra; Gonterman v. State, 358 So.2d 595 (Fla.App.1978); Love v. State, 144 Ga.App. 728, 242 S.E.2d 278 (1978); People v. Sanders, 44 Ill.App.3d 510, 3 Ill.Dec. 208, 358 N.E.2d 375 (1976); State v. Drouhard, 31 Or.App. 1083, 572 P.2d 331 (1977); State v. Johnson, 71 Wash.2d 239, 427 P.2d 705 (1967), or otherwise may be limited in purpose and time, e. g., United States v. Dichiarinte, supra; People v. Johnny V., 85 Cal.App.3d 120, 149 Cal.Rptr. 180 (1978). Where, as here, the consent is confined to certain items, the search itself likewise must be limited to the terms of the consent. Under such circumstances the search must be restricted to those objects and areas which are likely to contain the articles sought. E. g., United States v. Dichiarinte, supra; United States v. Taibe, supra; People v. Schmoll, supra; C. Whitebread, Criminal Procedure § 10.03 (1980). Police officers may not obtain a consent to search on the representation that they intend to look for specified items and then use that consent as a license to conduct a general exploratory search.

When, however, the police are legitimately on the premises pursuant to a consent to search, they may seize the objects sought as well as other incriminating evidence in plain view. E. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A plain view seizure must satisfy the...

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  • The Consent Exception to the Warrant Requirement
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