People v. Boff

766 P.2d 646, 12 Brief Times Rptr. 1820, 1988 Colo. LEXIS 223, 1988 WL 134612

• Court: Supreme Court of Colorado
• Decided: December 19, 1988
• Docket: 88SA58
• Status: Published

Opinions

YOLLACK, Justice.

Pursuant to C.A.R. 4.1, the People challenge a ruling of the district court suppressing marijuana found in a backpack worn by Howard James Boff. We conclude from the totality of the circumstances that the search of the backpack was incident to a lawful custodial arrest, and therefore reverse the order of the district court.

I.

Boff was arrested on July 30,1987, after a police surveillance team spotted him watering marijuana plants in a remote, unpopulated canyon in Dolores County, Colorado. Two police officers were involved in Boff s arrest. The first police officer observed a man later identified as Boff watering marijuana plants. He saw the man leave the canyon wearing a blue backpack. He transmitted to the police dispatcher that the subject was leaving the canyon and that he was in pursuit on foot. Boff left the canyon on a motorcycle. The second police officer stopped Boff on a deserted road about ten minutes later. He asked Boff to turn off the motorcycle engine so they could converse quietly, showed his badge to Boff, and asked him to wait for another police officer who would be arriving shortly. The first police officer arrived about five minutes later. The first police officer identified Boff as the person he had seen watering the marijuana plants. He testified that when he caught up with Boff, the backpack was lying on the ground next to the motorcycle. From the testimony of the two police officers, the obvious inference can be drawn that Boff was wearing the backpack at the time he was stopped by the second police officer.¹

The backpack was taken from Boff by the police officer. The backpack and the defendant were then driven to the Dolores County sheriff’s office in Dove Creek.² After Boff was placed in custody, the police opened the backpack without a search warrant for the purpose of discovering additional evidence.³ They found marijuana in the backpack. Boff was subsequently charged by information with cultivation of marijuana,⁴ possession with intent to distribute marijuana,⁵ and possession of more than eight ounces of marijuana.⁶

Boff moved to suppress all evidence seized as the product of an illegal arrest, and to suppress the contents of the backpack as an illegal search and seizure in violation of the fourth amendment. The suppression hearing was held on February 9, 1988. At the conclusion of the hearing, the district court ruled that Boff had been lawfully arrested, so the evidence did not have to be suppressed as the product of an illegal arrest. The district court nevertheless found that the backpack had been illegally searched. The district court stated that a warrantless search of the backpack could not be justified as an inventory search because the purpose of the search had been to find evidence of the crime.⁷ Nor could it be justified as a search incident to a lawful arrest because the search occurred at the police station and because the backpack had been out of the control of the defendant from the time he was arrested. Because there were no exigent circumstances to justify such a search without a warrant and because the police could easily have procured a warrant, the district court suppressed the marijuana found in the backpack.

The People appealed to this court pursuant to C.A.R. 4.1, contending that the search of the backpack was a search incident to a lawful arrest. They argue that the search was valid because the police could have searched the backpack when they arrested Boff and because the United States Supreme Court does not require that the search of the defendant or his belongings be contemporaneous with arrest.

II.

The district court in its order suppressing the contents of the backpack failed to state whether its order was based on federal or state constitutional law. When the lower court does not make clear that its ruling is grounded on state rather than federal constitutional principles, we will presume that it relied on federal law in reaching its decision. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983); People v. Gann, 724 P.2d 1318, 1320 (Colo.1986).

A search conducted without a warrant is prima facie invalid unless it falls within the limits of several well-recognized exceptions to the warrant requirement. People v. Casias, 193 Colo. 66, 72, 563 P.2d 926, 930 (1977). Even within the scope of a given exception, the search must meet the ultimate requirement of reasonableness. See People v. Santistevan, 715 P.2d 792, 794 (Colo.), cert. denied, 479 U.S. 965, 107 S.Ct. 468, 93 L.Ed.2d 412 (1986).

One of the well-recognized exceptions to the warrant requirement is the search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); People v. Alexander, 193 Colo. 27, 29, 561 P.2d 1263, 1265 (1977). The backpack Boff was wearing when stopped could have been searched by the police at the time he was arrested as a search incident to his arrest. As we stated in People v. Bischofberger, 724 P.2d 660 (Colo.1986):

[I]n the context of the Fourth Amendment the scope of a search incident to a lawful custodial arrest is quite broad. The search need not be limited to a mere pat-down of the arrestee’s outer clothing, but may extend to pockets and other containers, opened or closed, found on the person of the arrestee or within his immediate reach. E.g., [New York v. Belton ], 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ]; [Gustafson v. Florida] 414 U.S. 260 [94 S.Ct. 488, 38 L.Ed. 2d 456 (1973)]; [United States v. Robinson], 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427 (1973)]; People v. Tottenhoff, 691 P.2d 340 (Colo.1984); People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980). Such a search of the arrestee s person requires no independent justification, and the searching officer may seize and examine weapons, contraband, or other articles which the officer reasonably believes to be related to criminal activity even though these articles do not directly relate to the offense for which the arrest itself was effected.

Id. at 664-65 (footnote and citations omitted) (emphasis in original); see New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1980) (incident to arrest of automobile occupant, police may seize and search open or closed containers found in the passenger compartment); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1968) (incident to arrest, police may search area within the immediate control of the person arrested); People v. Hufnagel, 745 P.2d 242, 247-48 (Colo.1987) (search of closed endtable after defendant had been arrested and handcuffed upheld as search incident to arrest); People v. Ortega, 181 Colo. 223, 229, 508 P.2d 784, 788 (1973) (search of pocket at police station upheld as search incident to arrest); see also United States v. Litman, 739 F.2d 137, 139 (4th Cir.1984) (en banc) (search of shoulder bag in close proximity to defendant upheld as search incident to arrest); United States v. Mefford, 658 F.2d 588, 593 (8th Cir.1981) (search of brown paper bag carried by defendant upheld as search incident to arrest), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Lee v. State, 311 Md. 642, 668, 537 A.2d 235, 248 (1988) (search of gym bag hanging on fence at distance of two to eight feet from prone defendant upheld as search incident to arrest); Commonwealth v. Madera, 402 Mass. 156, 157, 521 N.E.2d 738, 739 (1988) (search of canvas gym bag defendant was carrying on his shoulder upheld as search incident to arrest); Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986) (search of “gym bag” or “overnight bag” slung over defendant’s shoulder upheld as search incident to arrest). A search incident to an arrest “may have as one of its purposes the discovery of objects or things which constitute evidence that the person arrested has committed a crime. United States v. Simpson, 453 F.2d 1028, 1030 (10th Cir.) (citations omitted), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972). The question then becomes whether a war-rantless search of containers found on or within the possession of the person which is not contemporaneous with an arrest falls outside of the judicially recognized exception of search incident to a lawful arrest.

A.

In People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971), we upheld the warrantless search of a sealed leather pouch that had been tied to the defendant’s pants, as well as a purse and a book he was holding. The items were taken from the defendant at the time he was arrested, transported to the police station, and searched. We noted that, while searches not contemporaneous with arrest are generally improper, this was valid as either a search incident to arrest or as an inventory search because the police promptly took the defendant to the police station after arresting him rather than searching him in a public area. Id. at 53-54, 485 P.2d at 718. Also, in People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973), we upheld a search of a person, clothes, and purse that was delayed long enough to transport a female defendant to the police station to be searched by a matron as required by department regulations. Since these cases were decided, however, the United States Supreme Court has announced new guidelines concerning searches incident to arrest.

At one time, the United States Supreme Court held that a search incident to a lawful arrest must be “substantially contemporaneous with the arrest.” See Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964) (invalidating warrantless search conducted two days before arrest); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (invalidating warrantless search of car in which defendants were arrested after car was transported to police garage). The Court abandoned the contemporaneous limitation for searches of the person incident to a lawful arrest, however, in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In Edwards, a search of the defendant’s clothing ten hours after he was arrested, for the purpose of examining his clothes for evidence of paint chips, was upheld as a search incident to a lawful arrest. In addition to recognizing that such a search could be justified as a search for weapons, instruments of escape, and evidence of crime, the Court stated that “[i]t is also plain that searches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention.” Id. at 803, 94 S.Ct. at 1237.

In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), however, the Court declined to overturn the suppression of a two hundred pound double-locked footlocker that had been placed into the trunk of an automobile by the suspects seconds before their arrest. The footlocker was seized by federal agents after the arrest, transported to a different location, and opened without a search warrant more than an hour after the suspects were arrested and securely in custody. The Court distinguished Edwards and Robinson as a search of the person rather than a search of luggage or other property. Id. at 16 n. 10, 97 S.Ct. at 2486 n. 10. It stated: “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” Id. at 15, 97 S.Ct. at 2485 (footnote omitted) (emphasis added). This emphasized language has been interpreted by lower courts to create an exception to the warrant requirement for wallets, containers found on the person, and containers such as purses which are “immediately associated with the person.” See Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980); Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (1980); Dawson v. State, 40 Md.App. 640, 395 A.2d 160 (1978); State v. Horton, 44 N.C.App. 343, 260 S.E.2d 780 (1979); Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986); see also 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 5.5(a), at 533-34 (2d ed.1987).

The position rather consistently taken by lower courts is that a search at the police station of the person, clothes, or containers found on or within the possession of the person is justified to the same extent that such a search would have been justified at the time and place of arrest. See, e.g., United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.) (search of purse seized at police station), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); cf. United States v. Johns, 469 U.S. 478, 487, 105 S.Ct. 881, 887, 83 L.Ed.2d 890 (1984) (warrantless search of packages in automobile three days after arrest upheld under automobile exception because packages could have been searched at time of arrest without a warrant). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3(a), at 479-80 (2d ed.1987); Annotation, Lawfulness of Warrantless Search of Purse or Wallet of Persons Arrested or Suspected of Crime, 29 A.L.R.4th 771, 842-51 (1984 & 1988 Supp.); Annotation, Modem Status of Rule as to Validity of Nonconsensual Search and Seizure Made Without Warrant After Lawful Arrest as Affected by Lapse of Time Between, or Difference in Places of, Arrest and Search, 19 A.L.R.3d 727, 739-41 (1968 & 1988 Supp.).⁸ This is so even where the defendant’s access to the objects searched was terminated between the time of arrest and the time of the search. See United States v. Basurto, 497 F.2d 781, 792 (9th Cir.1974).

We believe that the Edwards rationale applies under the facts of this case. A search at the police station of a suspect, his clothes, and personal property immediately associated with his person, is justified to the same extent that such a search could have been made at the time and place of arrest.⁹ See People v. Harfmann, 683 P.2d 500, 501 (Colo.App.1981); see also United States v. Hoye, 671 F.Supp. 1098, 1103 (E.D.Va.1987) (search two days after arrest of leather bag carried by defendant but placed an arms’s length away from body before arrest upheld under Edwards as a search incident to arrest). In this case, the backpack could have been searched at the time Boff was arrested. Boff was conveyed promptly to the police station. The search occurred promptly after Boff was booked. Under these circumstances, we conclude that the search of the backpack falls into the judicially recognized exception of a search incident to a lawful arrest.

B.

Boff contends for the first time in his brief to this court that the contents of his backpack must be suppressed under our holding in People v. Little, 198 Colo. 244, 598 P.2d 140 (1979). We do not agree.

In Little, we upheld the suppression of drugs found in the zippered compartment of a travel bag. We rejected the claim that the closed compartment of the travel bag could be searched incident to a lawful arrest. We stated: “Absent exigent cireum-stances, a general exploratory search following a lawful arrest, as made in this case, is not justified.” Id. at 248, 598 P.2d at 143 (citing People v. Hines, 195 Colo. 71, 73, 575 P.2d 414, 415 (1978)).

This statement of the law in Little is inconsistent with our more recent statements in Tottenhoff and Bischofberger that a search incident to an arrest of closed containers found on or within the reach of the person arrested does not require independent justification. Bischofberger, 724 P.2d at 664-65; Tottenhoff, 691 P.2d at 345; see also Harfmann, 633 P.2d at 501. As the United States Supreme Court stated:

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 upon what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the 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.

United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973); see also Belton, 453 U.S. at 461 n. 5, 101 S.Ct. at 2865 n. 5 (rejecting the notion that an item can no longer be searched incident to an arrest once it is reduced to the exclusive control of the police).

The validity of the search of the backpack turns not on the presence or absence of the exigencies of police protection and evidence preservation, but on the fact that a person, under full custodial arrest based on probable cause, loses his expectation of privacy as to those items on his person at the time of his arrest. See State v. Patton, 47 Or.App. 169, 171, 613 P.2d 1102, 1103 (1980); see also Harfmann, 633 P.2d at 501. In suppressing the marijuana, the district court relied on the faulty premise that some independent justification other than the defendant’s lawful arrest was required to search the backpack at the police station. Cf. People v. Inman, 765 P.2d 577, 581 (Colo.1988) (reversing order suppressing evidence found in inventory search). In so ruling, the district court erred.

We hold that the search of the backpack at the police station was justified by the lawful arrest and prompt conveyance of the defendant to the police station. We conclude that such a search was reasonable under the totality of the circumstances as a search incident to a lawful arrest.

The order of the district court is reversed.

ERICKSON, J., specially concurs. LOHR, J., dissents, QUINN, C.J., and KIRSHBAUM, J., join in this dissent.

1 . At the time the second police officer stopped the motorcyclist, he did not have a description of the subject or the subject's vehicle. The second officer was able to infer that this motorcyclist was the person the first police officer had seen from three facts: first, earlier in the day he had seen a set of motorcycle tire tracks leading into but not out of the canyon where the marijuana plants were growing; second, the road was blocked by a gate where the dirt trail leading into the canyon intersected the road, so that anyone driving on the road would have to pass by him; and third, he knew that the subject was leaving the area.

The district court determined that Boffs arrest was lawful.

2 . The record does not reveal how much time elapsed from the time Boff was arrested to the time his backpack was searched. Nor does the record reveal the distance from the place Boff was arrested to the place of detention in Dove Creek. Other than the fact that the backpack was searched at a time and place other than the time and place of arrest, however, the distance and time elapsed is not at issue.

3 . The People asserted in their brief to this court that the reason the police did not search the backpack at the time they arrested Boff was because of inadequate lighting, tools to collect the evidence, and manpower, and because they were worried about the contents blowing away or being tainted by the elements of nature.

4 . § 18-18-106(8)(a), 8B C.R.S. (1986).

5 . § 18-18-106(8)(b)(I), 8B C.R.S. (1986).

6 . § 18 — 18—106(4)(b), 8B C.R.S. (1986).

7 . The People do not dispute the district court’s correct assertion that the search of the backpack cannot be justified as an inventory search because the purpose of the search was to find other evidence of criminal activity. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987).

8 . See also Parris v. State, 270 Ark. 269, 270-273, 604 S.W.2d 582, 583-84 (Ark.App.1980) (search of purse seized at police station); People v. Chavez, 632 P.2d 574, 579 (Colo.1981) (defendant returned by police to scene of crime after arrest and forced to empty pockets in front of burglary victims); People v. Harfmann, 633 P.2d 500, 501 (Colo.App.1981) (package of cigarette papers seized at police station and searched thirty minutes later); Alston v. United States, 518 A.2d 439, 444-46 (D.C.App.1986) (purse seized in parking lot and searched by security guard in back room of store); Dunham v. District Court, 442 A.2d 121, 127 (D.C.App.1982) (purse searched at time of arrest, seized, and more thoroughly searched three and one-half hours Iater at police station; State v. Calegar, 104 Idaho 526, 530-31, 661 P.2d 311, 315-16 (1983) (suitcase seized from automobile in which defendant was arrested and searched at police station); State v. Woods, 637 S.W.2d 113, 116 (Mo.App.1982) (search of purse seized at police station); State v. Beaucage, 424 A.2d 642 (R.I. 1981) (search of purse seized at police station); Stewart v. State, 611 S.W.2d 434, 438 (Tex.Crim. App.1981) (search of purse seized at police station).

9 . For purposes of comparing Edwards to Chadwick, we find that a backpack is more like a purse than a two-hundred pound double-locked footlocker. See Chadwick, 433 U.S. at 21, 97 S.Ct. at 2488 (Blackmun, J., dissenting) (recognizing the difficulty of explaining how such items as purses and briefcases should be analyzed under Chadwick and suggesting that Chadwick ’s holding might in the future be limited to "objects that are relatively immobile by virtue of their size or absence of a means of propulsion.”).