People v. Traubert

• Decision Date: 17 March 1980
• Docket Number: No. 79SA348,79SA348
• Citation: 608 P.2d 342,199 Colo. 322
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas E. TRAUBERT, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 342

608 P.2d 342

199 Colo. 322

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Thomas E. TRAUBERT, Defendant-Appellee.

No. 79SA348.

Supreme Court of Colorado, En Banc.

March 17, 1980.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Tague, Goss, Schilken & Beem, P. C., Marjorie J. Platt, P. Arthur Tague, Denver, for defendant-appellee.

ERICKSON, Justice.

This interlocutory appeal is taken by the prosecution from an order of the district court suppressing certain articles seized from the defendant's person, the defendant's confession, and items seized from the defendant's automobile. We reverse in part, affirm in part, and remand this case to the district court for further proceedings consistent with the views expressed in this opinion.

On the evening of February 18, 1979, a parking lot attendant for the Rainbow Music Hall observed the defendant, Thomas E. Traubert, and another individual attempting to gain entry into the Majestic Products Building through a secured window. Suspecting that a break in was occurring, the attendant informed two Denver policemen, who were working off-duty at the Hall, of his suspicions, and pointed out the individuals to the officers. The individuals were standing beside the Majestic Products Building underneath a window which had had its security screen partially removed.

As the officers approached the building, the individuals began to walk away rapidly toward the street, and each dropped something behind him. Two large screwdrivers and a pair of plastic gloves were subsequently found by the officers. The officers arrested the individuals, conducted a brief pat down for weapons, and escorted them to a security room in the Hall.

Once inside the security room, the individuals were advised of their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Meyer conducted a more thorough search of the individuals' clothing and discovered a ring in the defendant's pocket. Upon being asked if the ring belonged to him, the defendant replied "Oh, yeah, that's mine." Officer Meyer also found a number of other rings in the defendant's pockets, including several women's wedding rings. The defendant again claimed ownership of these rings, but, upon being queried as to his asserted ownership of women's wedding rings, stated that "I think I need to see an attorney."

Car keys were also found in the defendant's pocket. Another officer, Officer Barnhill, took the keys, which were marked "Ford," and returned to the parking lot to locate the defendant's automobile. Although Officer Meyer ascertained the location of the defendant's automobile through a question directed at the defendant, it appears from the record that Officer Barnhill located the defendant's vehicle by trying the Ford keys in every Ford parked near the location of the attempted break in. ¹ When the defendant's automobile was located, Officer Barnhill conducted a brief visual search of its interior and seized a wallet on the front seat. The officer then arranged for the vehicle to be towed to the city pound.

Later that evening, the defendant was taken to the city jail and charged with attempted burglary. On the following morning, Officer Gold met with the defendant and informed him that he was investigating the attempted break in at the Majestic Products Building. At that time, Officer Gold advised the defendant of his Miranda rights and asked him if he wished to make a statement. The defendant answered in the affirmative, and made several inculpatory statements to Officer Gold about the attempted break in and about an earlier burglary of a residence where several rings were taken. The defendant, however, declined to sign a written statement.

At approximately 3:00 p. m. the following day, Officer Gold requested that the defendant consent to a search of the impounded vehicle. The defendant asked the officer how he could go about getting his car released. Officer Gold replied that the car would not be released until the conclusion of his investigation and that if the defendant did not consent to the search, he would try and get a search warrant. The defendant signed a consent to search form, and the subsequent search produced evidence of the residential burglary which occurred prior to the attempted break in at the Majestic Products Building.

Before the trial for second-degree burglary, conspiracy to commit second-degree burglary and theft, defense counsel moved to suppress all evidence seized from the defendant or his car and all statements made by the defendant. After a hearing, the trial court granted the defendant's motion, holding (1) that the evidence seized on the defendant's person was not derived from a valid search incident to an arrest; (2) that the defendant's inculpatory statements were obtained after the defendant requested a lawyer; (3) the defendant's car keys were seized illegally, which tainted the seizure of evidence in the automobile, and required that the evidence be suppressed.

I. Search Incident to Arrest

Although the trial court found that there was probable cause to arrest the defendant, the court held that the scope of the search of the defendant's person exceeded the bounds of a valid search incident to an arrest. Relying on Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963), the court stated that a search incident to an arrest could constitutionally extend only to a search for the fruits and instrumentalities of the crime for which the person was arrested. The officers had already recovered the burglary tools used in an attempt to secure entry into the Majestic Products Building. Since the defendant had been frisked for weapons and did not gain entry to the building, there could be no possible fruits of the crime. Therefore, the court held that there was no justification for the search of the defendant's pockets. We disagree.

In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), a case which postdated our decision in Hernandez, the United States Supreme Court held that a search incident to an arrest constituted an exception to the warrant requirement, provided that the search was limited to the arrested person and the area within his control. In language that is directly applicable to the case before us, the Court stated that:

"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found on the person of a suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification."

Given this clear statement of an officer's authority to conduct a search following a custodial arrest, we hold that the limitations imposed in Hernandez are no longer viable. Indeed, in Gufstafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the Supreme Court impliedly rejected the argument that a reviewing court could invalidate a search incident to an arrest because there was no evidentiary purpose for the search. Under the authority of Robinson and Gufstafson, the officer, after a custodial arrest may properly search the defendant and seize all "contraband or articles, the possession of which gives the police officers reason to believe a crime has been committed, even though such articles do not relate to the crime for which the defendant was initially arrested." ² People v. Ortega, 181 Colo. 223, 508 P.2d 784 (1973).

II. Waiver of Miranda Rights

Questions involving the exercise or waiver of a defendant's rights guaranteed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) invariably require the trial court to weigh the credibility of opposing witnesses and to resolve conflicting testimony. When there is evidence to support the trial court's findings of fact as to the voluntariness of a confession, the findings of the trial court will not be disturbed on appeal. People v. Parks, 195 Colo. 344, 579 P.2d 76 (1978); People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973); People v. Medina, 180 Colo. 56, 501 P.2d 1332 (1972). In addition, since the rights involved are of constitutional magnitude, a heavy burden rests upon the prosecution to demonstrate a waiver of the constitutional privilege against self-incrimination and the right to counsel. See e. g. People v. Richards, 194 Colo. 83, 568 P.2d 1173 (1977); People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976). The standard to be applied is proof of "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Where the defendant has requested that he be given a chance to speak with an attorney prior to being questioned, we have placed an even higher burden on the party seeking to show a waiver of that right. In People v. Harris, supra, we stated:

"The defendant made a request for an attorney, and the police officers were thereby placed on notice that the defendant intended to exercise his constitutional rights. (Admittedly, the demand was not in the most sophisticated or legally proper form, but it was adequate.) At that point, all interrogation should have ceased until an attorney was made available to the accused."

Once the accused has requested counsel, the police officers must cease interrogation immediately and must, within a reasonable period of time, provide the accused with an opportunity to talk to an attorney.

In this case, the record shows that the defendant exercised his Miranda rights by requesting the right to see an attorney. Although the defendant's statement "I think I need to see an attorney" was neither "sophis...