People v. Turner

• Citation: 660 P.2d 1284
• Decision Date: 28 March 1983
• Docket Number: No. 82SA554,82SA554
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Otis TURNER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1284

660 P.2d 1284

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Otis TURNER, Defendant-Appellee.

No. 82SA554.

Supreme Court of Colorado,

En Banc.

March 28, 1983.

Paul Q. Beacom, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for plaintiff-appellant.

Richard B. Deutsch, Denver, for defendant-appellee.

NEIGHBORS, Justice.

This is an interlocutory appeal of the trial court's ruling suppressing evidence seized pursuant to a search warrant. We affirm in part and reverse in part the order of suppression.

During the month of February 1981, police officers in the Lakewood Department of Public Safety received information from a "previously reliable source" that a number of persons, including the defendant, were involved in illegally manufacturing, selling, and distributing methamphetamine. On March 17, 1982, more than one year later, Agent Albert Keller from the Lakewood Department of Public Safety drove past the defendant's residence located at 2264 Elmira Street in Aurora, Colorado. Agent Keller observed the defendant standing outside his residence in the company of a person known to him as Oral Ray VanHook, III. Agent Keller knew both the defendant and VanHook from prior police contacts involving illegal drug activities. For reasons that are unclear from the record At approximately 9:00 p.m., Agent Keller was awakened at home. He was asked to begin drafting an affidavit in support of a request for a search warrant. Agent Keller went to a sub-office used by the Lakewood Department of Public Safety located at 1605 Yarrow Street in Lakewood, Colorado where he arrived at approximately 9:20 p.m.

surveillance of the defendant's residence began sometime prior to 9:00 p.m. on March 17, 1982. Special Agent Patrick Fagan of the Drug Enforcement Administration was one of the officers assigned to assist in the surveillance of the defendant's house.

Agents Fagan and Keller were informed by surveillance officers that numerous persons and vehicles were observed coming and going from the Elmira Street residence. The officers believed that the unusual level of activity was consistent with drug dealing. Agent Fagan recognized one of the vehicles parked in front of the residence as belonging to Michael Allison. Fagan was familiar with Allison as a "known and convicted methamphetamine trafficker."

At approximately 9:50 p.m., Agent Fagan walked down the alley behind the Elmira Street house. As he walked past the unattached two-story garage located to the rear of the Elmira Street residence, he smelled a very distinct odor, which he associated with the manufacture of methamphetamine, emanating from the garage. He saw that one of the windows was encased in plastic. From his training and experience, Agent Fagan knew that plastic is placed in windows to prevent the odors associated with the manufacture of methamphetamine from escaping. Agent Fagan relayed this information to Agent Keller.

At approximately 10:00 p.m., Allison left the residence in his vehicle. The police made the decision to arrest Allison because they believed that a methamphetamine laboratory was located in the garage and that Allison may have been removing evidence or contraband from the premises. Uniformed officers from the Aurora Police Department stopped Allison several blocks from the Elmira Street location, after he was out of the sight of persons present in the house. Allison and his vehicle were searched by the police who found no evidence of illegal drug activity. However, Allison was arrested on a warrant issued by the Aurora Municipal Court for failure to appear on a traffic charge. The officers believed that no one in the Elmira Street house had observed either the arrest of Allison or the ongoing surveillance.

After Allison was arrested, Agents Keller and Fagan and other officers decided that the surveillance officers should enter the house and the garage and secure the premises until Agent Keller could complete the affidavit and obtain the search warrant. The officers testified that the only reason they entered the garage and the house was because they feared that if Allison did not return, the occupants of the house might be alerted to Allison's arrest and then remove evidence from the house and garage.

The officers entered the house and garage shortly after 10:00 p.m. They arrested the occupants, including the defendant who was in the garage. According to statements made by respective counsel during their arguments on the motion to suppress evidence, drugs and money were seized from the defendant's pockets incident to his arrest.

In order to insure that no one was on the second floor of the garage, Special Agent Dick Barter from the Drug Enforcement Administration climbed a ladder up to that floor. He observed glassware, laboratory equipment, and chemicals which he knew were used in the manufacture of methamphetamine.

Agent Keller completed the affidavit and took it to a judge who issued the search warrant shortly after midnight. At approximately 1:00 a.m., the officers searched the house and garage at 2264 Elmira Street and seized items as evidence.

The defendant filed a motion to suppress the evidence. At the conclusion of the hearing held on November 10, 1982, the trial court denied the motion, finding that

there were exigent circumstances justifying the warrantless entry into the house and that the affidavit established probable cause to support the search warrant which was issued. However, the trial judge reversed his earlier ruling on November 12, 1982, and entered a written order granting the defendant's motion to suppress all the evidence seized from the Elmira Street property. The court found there were no exigent circumstances justifying the warrantless entry by the police into the house or the garage. It is from this order of suppression that the People have appealed.

I.

There are two searches involved in this case. The first search occurred on March 17, 1982, when the police entered the house and garage without a warrant to secure both premises until a search warrant could be obtained. The second search of the house and garage occurred on March 18, 1982, when the police searched the premises pursuant to a search warrant.

A warrantless search is presumed to violate the constitutional provisions forbidding unreasonable searches. ¹ Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977). The burden of proof is always upon the People to establish that the search falls within the limits of a well-recognized exception to the warrant requirement. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980). Exigent circumstances necessitating immediate police action justify warrantless searches and seizures. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980). Absent exigent circumstances, an arrest in a suspect's home must be pursuant to an arrest warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); McCall v. People, 623 P.2d 397 (Colo.1981); People v. Williams, supra. The prosecution must establish the existence of both probable cause and exigent circumstances to justify a warrantless entry, arrest, and search. People v. Bustam, 641 P.2d 968 (Colo.1982).

A.

It is undisputed that the police entered the residence and garage located at 2264 Elmira Street without a warrant and arrested and searched the defendant. The first issue presented is whether there was probable cause to believe that a crime was occurring on the premises. In People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974), we stated:

"An officer has probable cause when the facts and circumstances within his knowledge--or upon which he has reasonably trustworthy information--are sufficient to warrant a reasonably prudent man in believing that the person to be searched or arrested has committed or is committing an offense."

185 Colo. at 212, 523 P.2d 128. In applying the test to the facts in this case, we agree with the finding of the trial court that probable cause existed to believe that crimes were being committed in the residence and in the garage. The facts which establish probable cause are these: (1) the presence of persons known to the police to be involved in methamphetamine traffic; (2) the unusual number of persons seen coming and going from the residence; (3) the presence of an odor associated with the manufacture of methamphetamine emanating from the garage; and (4) the presence of plastic around the window to prevent the odor from escaping.

The trial court found that no exigent circumstances existed justifying the warrantless entry. We agree.

The threat of immediate destruction or removal of evidence is an exigent circumstance justifying a warrantless search. People v. Bustam, supra; People v. Gomez, 632 P.2d 586 (Colo.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); McCall v. People, supra. However, the People must demonstrate an The People contend that this case is controlled by our decision in People v. Bustam, supra. We disagree. The facts in this case are distinguishable. In Bustam, a drug buyer was overheard by the police to say that he would return promptly to the defendant's apartment. The drug buyer was arrested. In this case there is nothing but the vaguest suspicion by the officers that Allison's failure to return to the Elmira Street residence would alert the defendant to Allison's arrest and result in the removal or destruction of evidence. Nor does this case involve the situation where the defendant and his confederates observed the police watching them engage in criminal conduct. People v. Gomez, supra. Accordingly, we decline to extend the Bustam rationale to this case. We, therefore, conclude that the warrantless entry by the police into the defendant's residence and garage when no exigent circumstances...