People v. Barry

888 P.2d 327, 18 Brief Times Rptr. 1030, 1994 Colo. App. LEXIS 179, 1994 WL 269524

• Court: Colorado Court of Appeals
• Decided: June 16, 1994
• Docket: No. 91CA1490
• Status: Published

Opinions

Opinion by

Chief Judge STERNBERG.

The defendant, Thomas Barry, appeals the judgment entered on a jury verdict finding him guilty of possession of a controlled substance. On appeal, he argues that his war-rantless arrest was illegal, the evidence was insufficient to support the conviction, and the trial court’s answer to a jury question was erroneous. We affirm.

Suspecting that a person named Rounds was dealing in drugs, the police used an informant to arrange a drug purchase from him and provided the informant with money for the purchase. The police followed Rounds, but lost him. They did, however, see him retmm and enter his house a short time later. Rounds then phoned the informant, who drove to Rounds’ residence. Rounds came out of his home, walked to the informant’s vehicle and handed him the cocaine, whereupon he was arrested.

At the time of the arrest, the police believed that Rounds lived alone. However, as they converged on the scene to complete the arrest, one of the officers noticed defendant looking out the glass front door of the residence. According to this officer, upon being seen by the officer, defendant “took an affirmative mode to try to conceal himself and try to get away from the window” by closing the window curtains. The officer immediately ran into the house where he observed defendant coming out of a bathroom. As he searched defendant, the officer heard the sound of a flushing toilet, ran into the bathroom, and retrieved a plastic baggie just before it would have been flushed down the toilet. The baggie contained cocaine.

Defendant admitted that he lived in the house, but denied any involvement in dealing cocaine or that the cocaine found in the baggie was his.

I.

Noting that the entry into the home was made without a warrant, the defendant asserts that the police had no probable cause to believe contraband was in the house, or, in the alternative, that even if they did have such probable cause, nevertheless, there was no exigency that would excuse their failure to obtain a warrant. We find no error.

Warrantless searches are per se unreasonable unless they fall within one of the narrow exceptions to the warrant requirement. People v. Cleburn, 782 P.2d 784 (Colo.1989). One of these, the exigent circumstances exception, justifies a warrantless search and seizure when the prosecution establishes both: (1) the existence of probable cause to search, and (2) circumstances requiring immediate police action. People v. Garcia, 752 P.2d 570 (Colo.1988). Exigent circumstances allow immediate, warrantless searches and seizures when it reasonably appears that evidence may be removed or destroyed by a third person before it can be secured by the police. People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980).

Here, when the police saw defendant looking out the front door of the house, they realized that a third party was in the house. When defendant “tried to conceal himself and tried to get away from the window” by closing the curtains, the police had reasonable grounds to believe that this person might destroy possible evidence inside the house or harm the officers outside. Cf. People v. Barndt, supra (no exigent circumstances to search house when the facts did not substantiate a fear on the part of police of the presence of third persons inside the house).

However, because Rounds was arrested in the street outside the residence, defendant argues that the police had no reason to be-. lieve cocaine was located in the house. We do not agree. Shortly after Rounds took the informant’s money and left the house, he returned and went back into the house. The police knew that Rounds had cocaine when he returned to the house and before the sale; thus, it was reasonable to believe both that some cocaine might still be in the house following the sale and that defendant was about to remove or destroy it.

Furthermore, in drug transactions, as testified to by two of the police officers, the possibility of violence involving armed drug dealers exists. Thus, a protective sweep and search for weapons provides an additional justification for the warrantless search. See People v. Martinez, 801 P.2d 542 (Colo.1990); People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974); but see People v. Santisteven, 693 P.2d 1008 (Colo.App.1984).

II.

The defendant next contends that the evidence was insufficient to support the conviction. He notes that the case against him was predicated entirely on the notion that he “possessed” the cocaine by picking it up and attempting to flush it down the toilet. Therefore, he argues that because his possession was “temporary or passing and for the purpose of disposal” the conviction cannot stand. Again, we disagree.

A.

The elements of the crime of possession of a controlled substance are:

1. That the defendant

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. possessed,

5. the controlled substance, Cocaine.

Section 18-18-105(l)(a), C.R.S. (1986 Repl. Vol. 8B). See also COLJI-Crim. No. 36:02 (1983) and No. 36(11) (1993 Supp.).

The statute is clear and unambiguous; thus, “judicial scrutiny is complete.” State Department of Highways v. Mountain States Telephone & Telegraph Co., 869 P.2d 1289 (Colo.1994). Literal application of the statute to the acts of the defendant here does not create an absurd result. Thus, we may not rewrite the statute. Defendant’s argument that it is unfair to apply the statute to one who has temporary or fleeting possession for the purpose of disposing of contraband is better addressed to the General Assembly.

The General Assembly has chosen to make drug possession a crime requiring only a general intent: if one knowingly possesses the substance, he has violated the statute. That is what occurred here. To adopt defendant’s argument would be to make possession a specific intent crime, contrary to the plain language of the statute.

B.

Section 2-4-201, C.R.S. (1980 Repl. Vol. IB) directs us to avoid reaching an absurd result in interpreting a statute; rather, we should attempt to divine the intention of the General Assembly. There is no reason to view this defendant’s conduct as innocent in nature. As he looked out the window, he saw his friend being arrested for selling cocaine. First, he attempted to conceal himself, and then he tried to dispose of the contraband. We see nothing “absurd” or unjust about convicting defendant under these facts. It is not for us to say that the General Assembly, by the plain language used in this statute, did not mean to criminalize the conduct of the defendant.

C.

The defendant, nevertheless, refers us to the case of People v. Mijares, 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115 (1971), and its progeny. In California and Alaska, judicial scrutiny of the “possession” element of statutes similar to ours is permitted to determine whether transitory handling of the drug for the purpose of destroying it constitutes possession. Mijares and its progeny hold that, in some circumstances, a jury should be instructed that “passing control” of drugs for purposes of disposal does not amount to possession. Those courts refuse to interpret their possession statutes to apply to such “guileless circumstances.”

That being said, however, even the courts that follow the Mijares rule make clear that they are not creating a loophole for persons, such as this defendant, who discard contraband when they are about to be arrested, or for persons who destroy or conceal evidence. In such cases, the prior physical dominion over the narcotic is sufficient for conviction. The cases repeatedly emphasize:

[0]ur decision in no way insulates from prosecution under the narcotics laws those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession [citations omitted] ... We leave intact the rule that from such conduct ‘it could be inferred that defendant at one time exercised physical dominion’ over the narcotics [cite omitted].

People v. Mijares, supra, 6 Cal.3d at 422, 99 Cal.Rptr. at 144, 491 P.2d at 1120 (emphasis added). See also People v. Wesley, 224 Cal. App.3d 1130, 274 Cal.Rptr. 326 (1990); People v. Sonleitner, 183 Cal.App.3d 364, 228 Cal.Rptr. 96 (1986); People v. Hampton, 115 Cal.App.3d 515, 171 Cal.Rptr. 312 (1981); Hack v. United States, 445 A.2d 634 (D.C.App.1982).

Also, Califozmia Jury Instructions, Criminal (5th ed. 1984) (pocket part § 12.06) states that transitory possession of a controlled substance may not be unlawful. However, that defense exists only if: “control is not exercised over the [controlled substance] for the purpose of preventing its imminent seizure by law enforcement.” Compare People v. Cole, 202 Cal.App.3d 1439, 249 Cal.Rptr. 601 (1988), with People v. Sullivan, 215 Cal. App.3d 1446, 264 Cal.Rptr. 284 (1989).

Thus, even if we were to be persuaded that we should adopt a rule that “transitory” handling of a drug may not constitute “possession,” that rule would provide no defense to defendant in this case. The above quotation from People v. Mijares, supra, emphasizes the fact that the transitory handling exception would not be applicable to one such as this defendant. In People v. Sonleitner, supra, the court ruled that the “passing control” instruction of Mijares, supra, was inapplicable in a case in which the defendant had flushed an alleged narcotic down the toilet when police raided a residence. In so holding, the court stated:

In running to the bathroom at the approach of the sheriffs, defendant’s purpose was obviously the destruction of evidence, which Mijares emphasizes is not within its rationale.

People v. Sonleitner, supra, 183 Cal.App.3d at 370, 228 Cal.Rptr. at 100.

III.

Contrary to the defendant’s final contention of eiTor, the trial court’s answer to the jury’s question does not constitute error.

During its deliberations, the jury submitted the following question to the court:

[Djoes knowingly destroying the evidence, by physically picking up the cocaine and flushing it down the toilet, constitute ‘possession’ ... ?

The court gave this answer:

[I]f you find that the defendant picked up the cocaine and flushed it down the toilet, then the court directs your attention to Instruction 6 which reads ‘possession as used in these instructions ... does mean the actual physical possession, or immediate or knowing control [over] the object or the thing allegedly possessed.’

We conclude that this answer was correct. See Leonardo v. People, 728 P.2d 1252 (Colo.1986).

ABA, Standards for Criminal Justice, Standard 15^.3(a) (2d ed. 1980), states:

If the jury, after retiring for deliberation desires to be informed on any point of law, they shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless:

(i) the jury may be adequately informed by directing their intention to some portion of the original instruction;

(ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or

(iii)the request calls upon the judge to express an opinion upon factual matters that the jury should determine.

None of the prohibitions of the standard applies here. The jurors would not have been helped simply by being referred back to the same instruction that confused them, and their request related to matters relevant to the case. With respect to the third exception, the court avoided the inference that it was expressing an opinion upon factual matters by prefacing its response with the phrase, “if you find.” The substantive issue implicated by the jury’s question, whether temporary possession was sufficient to constitute possession under the law, has been analyzed in Part II of this opinion.

The judgment is affirmed.

KAPELKE, J., concurs. BRIGGS, J., dissents.