People v. Unruh, 84SA299

Citation713 P.2d 370
Decision Date21 January 1986
Docket NumberNo. 84SA299,84SA299
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Darrell UNRUH, Defendant-Appellant.
CourtSupreme Court of Colorado

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Eric B. Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Jeffrey A. Springer, P.C., Jeffrey A. Springer and Robert M. Brown, Denver, for defendant-appellant.

DUBOFSKY, Justice.

Darrell Unruh, the defendant, was convicted in Denver District Court after a jury trial of possession of cocaine under sections 18-18-105, 8 C.R.S. (1985 Supp.), and 12-22-310, 5 C.R.S. (1985), and possession of more than one ounce of marijuana under section 18-18-106, 8 C.R.S. (1985 Supp.). The defendant challenges his conviction on the grounds that section 18-18-105 denies him equal protection of the laws 1 and that his conviction was based on evidence that the district court should have suppressed because it was obtained in violation of the fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution. The evidence that the defendant challenges is the cocaine and marijuana discovered in his safe after a trained police dog sniffed and reacted positively to the safe. We affirm the judgment of the district court.

On September 29, 1981, Detective Robert Turner of the Denver Police Department observed three individuals attempting to cover a large, apparently heavy object in the trunk of a car. Detective Turner drove past the car and then returned for another look. He found the car abandoned with a safe visible in the trunk. Detective Turner radioed a description of the individuals he had seen trying to conceal the safe and shortly thereafter police officers apprehended a suspect. The suspect told Turner that he had participated with two others in the burglary of a residence in the vicinity of Second Avenue and Colorado Boulevard. According to Detective Turner, the suspect also told him that he thought the safe contained money and drugs.

Another detective located a house that appeared to have been broken into in the neighborhood described by the suspect to Detective Turner. The front door of the house was open and the door jamb was splintered. Detective Turner arrived, shouted "police" into the residence, and then entered. Inside the house Detective Turner noticed on a table a checkbook and several pieces of mail bearing the names of the defendant and his wife. Turner contacted the bank indicated on the checkbook in an attempt to locate the defendant. He then conducted a search of the premises. On the lower floor of the house Turner noticed marks in a small room or closet indicating where the safe had been located. In the same closet, he observed a triple-beam scale, a mirror, two teaspoons, and a playing card, all bearing a white residue.

Shortly after the discovery of these items, the defendant returned home. He confirmed the fact that his safe had been stolen, and Detective Turner informed him that the safe had been recovered and taken to police headquarters for safekeeping. The defendant asked Detective Turner when he might expect the release of the safe and was told "probably the following day or so."

Detective Turner suspected that the safe contained drugs because of the burglary suspect's statements, the scale, spoons, playing card, and mirror found in the room where the safe had been located, and the fact that the defendant's name sounded familiar. Turner contacted a detective in the Denver Police Department vice bureau who produced from his files a card on a Darrell Norman Unruh. The card listed Unruh's address as 2050 South Columbine and indicated, in an entry dated September 24, 1979, that Darrell Norman Unruh was a suspected cocaine dealer.

The detectives decided to submit the safe to a sniff by a narcotics detection dog. According to Detective Turner, when the dog was brought into the room at the police department where the safe was being kept, the dog "immediately responded to the safe and pawed at it. The dog was then taken from the room and brought back and he immediately went to the same safe again." In an affidavit seeking a warrant to open the safe, Detective Turner recited the bases of his suspicions concerning the contents of the safe and the results of the dog sniff. After obtaining the warrant, the police officers had the safe pried open with hydraulic tools. Inside, they discovered, among other things, 126 grams of cocaine and 1.2 kilograms of marijuana. The defendant moved to suppress the contents of the safe. The district court denied the motion, and the defendant was convicted of possession of cocaine and marijuana.

I.

The defendant contends that his conviction of a felony under section 18-18-105 violated his right to equal protection of the laws 2 because section 12-22-314(1)(m), 5 C.R.S. (1985 Supp.), punishes possession of cocaine obtained from an unlawful source by a "practitioner" as a misdemeanor. The term "practitioner" is defined by section 12-22-102(16), 5 C.R.S. (1985) as "a person authorized by law to prescribe any drug, medicine, or poison, acting within the scope of such authorization."

In resolving doubts concerning the constitutionality of a statute, we are guided by a number of well-established principles. A statute is presumed to be constitutional, and the burden of proving the contrary is on the person attacking the statute. People v. Velasquez, 666 P.2d 567, 569 (Colo.1983); People v. Alexander, 663 P.2d 1024, 1027 (Colo.1983). Where, as in this case, the challenged statute does not involve a suspect classification or touch upon a fundamental right, the court will uphold a statutory classification if it is reasonably related to a legitimate governmental interest. People v. Velasquez; Dawson v. Public Employees Ass'n, 664 P.2d 702, 707 (Colo.1983). Because "[e]qual protection of the law is a guarantee of like treatment of all those who are similarly situated," this court has held that conviction under a statutory scheme "which prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like circumstances is violative of a person's right to equal protection of the laws." People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975).

The differences between practitioners and non-practitioners justify imposing on practitioners a lesser degree of punishment for unlawful possession of cocaine. The General Assembly reasonably could have concluded that a lesser punishment for practitioners was appropriate because practitioners are engaged in an occupation that regularly requires the administration, dispensation, and possession of controlled substances. The statutory classification drawn by sections 18-18-105 and 12-22-314 is reasonably related to a legitimate governmental interest, and the defendant's conviction under section 18-18-105 did not deny him equal protection. 3

II.

Both the federal and state constitutions provide protection from unreasonable searches and seizures. 4 The defendant asserts that his conviction cannot stand because it rested on the admission of evidence obtained in violation of these constitutional provisions. He argues first that the retention of his safe by the police officers after it had been recovered from the burglars' automobile constituted an illegal seizure of the safe. We disagree.

One of the definitions of a "seizure" within the meaning of the prohibition against unreasonable searches and seizures in the federal constitution is "a forcible or secretive dispossession of something against the will of the possessor or owner." United States v. Haden, 397 F.2d 460, 465 (5th Cir.1968), cert. denied, 396 U.S. 1027, 90 S.Ct. 574, 24 L.Ed.2d 523 (1970); see also United States v. Thomas, 613 F.2d 787, 793 (10th Cir.1980), cert. denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d 114; United States v. White, 268 F.Supp. 998, 1003 (D.D.C.1966). In light of this definition, it would be difficult to characterize the detention of the defendant's safe by the police from the time they recovered it from the burglars' automobile until the next day when the safe was opened as a "seizure." As the People observe, there is no indication in the record that the defendant ever directly requested the return of the safe after the police took custody of it in a lawful manner. The defendant asked Detective Turner when he could recover the safe, and he apparently did not demur when Turner replied that the defendant might arrange for its release "probably the following day or so." The detention of the safe was not the result of the defendant's having been forcibly or secretly dispossessed of the safe against his will.

However, even assuming that the detention of the safe may be characterized as a "seizure," we are not prepared to say that the seizure was illegal. Where police officers lawfully come into possession of property it is not unreasonable per se for them to detain the property for possible use as evidence. United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980); United States v. Farrell, 606 F.2d 1341 (D.C.Cir.1979). Of course, even where the initial seizure of property by police officers was valid, the circumstances of the subsequent detention may render the detention unreasonable. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 1662, 80 L.Ed.2d 85 (1984); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In Place, the United States Supreme Court determined that the reasonableness of a detention of property initially seized in a lawful manner should be assessed by "balanc[ing] the nature and quality of [the] intrusion on the individual's Fourth Amendment [possessory] interests against the importance of governmental interests alleged to justify the intrusion." 462 U.S. at 703, 103 S.Ct. at 2642; see also ...

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