People v. Tufts, s. 85SA138

• Decision Date: 14 April 1986
• Docket Number: Nos. 85SA138,85SA139,s. 85SA138
• Citation: 717 P.2d 485
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Wilder TUFTS, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Paul Joseph DAVIDSON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 485

717 P.2d 485

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Wilder TUFTS, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Paul Joseph DAVIDSON, Defendant-Appellee.

Nos. 85SA138, 85SA139.

Supreme Court of Colorado,

En Banc.

April 14, 1986.

Alexander M. Hunter, Dist. Atty., John M. Haried, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Carl F. Manthei, Boulder, for defendant-appellee, David Wilder Tufts.

Peter Schild, Boulder, for defendant-appellee, Paul Joseph Davidson.

ERICKSON, Justice delivered the Opinion of the Court.

This is an interlocutory appeal by the prosecution from an order suppressing evidence in a narcotics case. We reverse and remand for further proceedings.

I.

Defendants, David Wilder Tufts and Paul Joseph Davidson, are charged with possession and sale of a schedule II controlled substance and conspiracy to sell a schedule II controlled substance. § 18-18-105, 8 C.R.S. (1985 Supp.). The defendants filed motions to suppress which were granted by the trial court. The facts necessary to the resolution of this appeal were developed at the suppression hearings held on February 21, March 21, and April 11, 1985. Charles Evans, a special agent for the Federal Bureau of Investigation, testified that citizen-informant Steve MacLaskey told him that he knew an individual named James Russell who desired to sell eight ounces of cocaine. On September 17, 1984, MacLaskey met Russell at a Boulder restaurant, while Evans waited outside the restaurant. Evans observed the two men talking for about one-half hour before he was introduced to Russell by MacLaskey. Evans testified that after Russell departed, MacLaskey said he told Russell that Evans was interested in purchasing cocaine.

On September 19, MacLaskey informed Evans that Russell had called and said that his supplier would bring the cocaine from Denver to Boulder the next day. Evans also learned that Russell was having credit problems with his supplier, and that the supplier had taken Russell's truck as collateral.

Shortly before 9:00 a.m. on September 20, Russell called MacLaskey in Denver and asked him to come to Boulder. Russell said his supplier was driving from Denver to Boulder with the cocaine. MacLaskey communicated this information to Agent Evans, who told MacLaskey to meet him at his office in Boulder. MacLaskey arrived at about 10:00 a.m. and called Russell at his residence on 5450 Tenino Avenue in Boulder. Russell told MacLaskey to meet him in the parking lot of a nearby Safeway store. At approximately 10:15 a.m., police officers initiated air and ground surveillance of the house at 5450 Tenino Avenue. Fifteen minutes later, officers observed Russell leave the house and followed him as he drove to several stores and restaurants in Boulder and then to the Safeway parking lot. Russell drove through the lot and stopped to make a telephone call but returned to the house at 5450 Tenino Avenue prior to the arrival of MacLaskey and Evans. At approximately 11:00 a.m., surveillance units observed a United Parcel Service truck park in front of the Tenino Avenue house. The record is unclear as to whether a delivery was made to Russell's residence. At 12:18 p.m., officers observed a yellow Cadillac arrive at Russell's house and saw three individuals of unknown identity go into the house. Upon checking the license plates, officers discovered that the vehicle was registered to David Tufts. Several minutes later, MacLaskey called Russell from the Safeway parking lot and was told to come to Russell's house. MacLaskey went to the house, where he was met by Russell and led to the kitchen. Russell then went to another part of the house and returned with a quantity of white powder in a cellophane bag. MacLaskey took a small sample of the powder and said he would take it to Evans for testing. MacLaskey left the house and drove to a location a few blocks away where Evans was waiting. Evans was told about what had transpired in the house, and he tested the white powder twice using a chemical field test. Both tests indicated that the powder was cocaine.

Evans testified that he put an empty briefcase in the trunk of MacLaskey's car and returned to the house with MacLaskey. Inside the house, Evans went to the kitchen with MacLaskey and Russell and was shown the cellophane bag containing white powder. After discovering that the bag weighed only four ounces, Evans complained that he wanted to purchase eight ounces of cocaine, not four ounces. Russell responded that if the present sale was satisfactorily completed, he would sell Evans four ounces of cocaine that evening. Evans then took a small sample of the cocaine to a bedroom in the house, telling Russell that he wanted to test the substance again. While in the bedroom, Evans used a wireless transmitter to inform surveillance officers outside of what was occurring in the house. When he returned to the kitchen, he told Russell he was going out to MacLaskey's car to get the money to pay for the cocaine. Evans retrieved the empty brief case from the trunk of the car and, again using his wireless transmitter, advised surveillance officers that he was going back inside and needed cover. Two officers entered the house behind Evans with their service revolvers drawn. MacLaskey and Russell were standing in the doorway between the kitchen and the living room and were visible to the officers when they entered the house. The officers shouted that they were police officers and placed MacLaskey and Russell under arrest. The officers then proceeded through the house looking for other persons on the premises. One of the officers brought two women from the family room into the living room, where they were placed under arrest. ¹ The other officer, Detective Kenneth Hall of the Boulder County Sheriff's Department, found two men subsequently identified as David Tufts and Paul Davidson in a room in the back of the house. Detective Hall testified at the suppression hearing that Davidson was standing near a window and appeared to be pushing against the screen. Tufts was sitting in a chair behind a desk. Hall placed the defendants under arrest and took them to the living room, where the other persons in the house had been assembled.

The defendants and the other persons arrested at the house were transported to the county jail, and the house was secured while Detective Hall prepared an affidavit and search warrant. The warrant was signed by a Boulder district judge and permitted a search of the house at 5450 Tenino Avenue and the yellow Cadillac parked across the street from the house. ²

Officers conducting the search seized the cellophane bag containing the white powder, an electronic scale, a large amount of currency, a sawed-off shotgun, and other items in the house. In the room where the defendants were found, Detective Hall discovered a vinyl travel bag containing a loaded handgun and traces of white, crystalline powder. ³ After searching the house, Hall searched the Cadillac and discovered a vinyl attache case bearing Tufts' name. The attache case contained a holster which appeared to fit the handgun found in the bag in the house.

The handgun seized from the house was traced to Captain John Callahan of the Colorado State Patrol. At the suppression hearing, Callahan testified that defendant Tufts was his neighbor, and that Callahan had arranged a trade between Tufts and another police officer for the handgun several years previously. Officer Callahan stated that when he told Tufts that he had been contacted about the gun, Tufts asked him if he could keep Tufts' ownership of the gun secret.

Following the suppression hearing, the trial court found that there was no probable cause for the arrests of the defendants. The court also found that since probable cause did not exist for the arrests, probable cause did not support the search of the car registered to defendant Tufts, and that the search was the fruit of an illegal arrest. Additionally, the court found that the search of the bag was not included within the scope of the search warrant for the house. The trial court therefore suppressed the evidence obtained from the search of the bag and the car. The court also suppressed as fruits of the illegal arrests items seized from the defendants at the jail and the statements made by Tufts to Callahan. After the trial court declined to modify its rulings on the prosecution's motion for reconsideration, the prosecution brought this appeal pursuant to C.A.R. 4.1.

II.

The prosecution first contends that both defendants lack standing to challenge the search of the vinyl bag, and that defendant Davidson does not have standing to challenge the search of the Cadillac registered to defendant Tufts. We disagree.

A.

At the outset of the suppression hearing, the prosecution raised the standing issue and noted that the burden of proof was on the defendants to establish standing to challenge the legality of the searches. The trial court then requested defense counsel to disclose what evidence they would rely upon to demonstrate standing. Defense counsel responded with brief statements detailing their positions on the standing question. The trial court concluded that "there's enough by way of offer of proof for me to proceed with just hearing all the evidence and then making determinations about [standing] from the evidence that I hear." The court recognized that the ultimate burden of proving standing remained on the defendants.

The trial court then proceeded with the testimony of the prosecution's witnesses. Detective Hall testified that he believed the vinyl bag belonged to the defendants. He also said that he examined items taken from defendant Davidson at the jail and saw a number of key rings, one of which was for a "yellow Cadillac." The trial court found that the defendants had standing to challenge the search of the vinyl bag based on Detective Hall's...