People v. Bustam

641 P.2d 968, 1982 Colo. LEXIS 557

• Court: Supreme Court of Colorado
• Decided: March 8, 1982
• Docket: 81SA332
• Status: Published

Opinions

ROVIRA, Justice.

The defendant, Ernest Bustam, has been charged with possession of narcotic drugs for sale ¹ and possession of dangerous drugs with the intent to dispense.² The People bring this interlocutory appeal pursuant to C.A.R. 4.1 to challenge the district court’s order granting the defendant’s motion to suppress evidence and his motion for return of all nondrug related property. We reverse the ruling of the trial court.

The facts are not in dispute. Denver police, working with the assistance of an agent from the Drug Enforcement Administration of the United States Department of Justice, began an investigation of the defendant in the fall of 1980. This investigation was initiated upon information received from a citizen who reported that the defendant occupied an expensive condominium at 800 Pearl Street, but did not appear to have any visible means of support; that he received an unusual number of visitors who stayed a short length of time and who either were dropped off at the apartment building or parked some distance away and walked to the building; and that the defendant made frequent trips to Miami, Florida.

The police concluded that this type of activity corresponded to the typical pattern of activity of one involved in the dealing of narcotic substances. In addition, upon checking police records, the police discovered that the defendant had a prior arrest for sale and possession of narcotics.

Approximately three months after receiving the information from the citizen, an informant with proven reliability notified the police that an individual by the name of Vern Leingang would be going to the area of 8th Avenue and Washington Street for the purpose of purchasing a quantity of cocaine. The informant gave a physical description of Leingang, and the police obtained a photograph of him from police records.

Since the defendant lived one block from 8th Avenue and Washington Street, the police decided to set up a surveillance of his apartment. Police were positioned outside the building and in an apartment directly across the hall from that occupied by the defendant.

At approximately 8:10 p. m., an individual fitting the description of Leingang entered the defendant’s apartment. Approximately twenty minutes later, he left the apartment, and the policeman who was stationed in the nearby apartment heard him say, as he was leaving, that he would return in a few minutes. Leingang then entered a vehicle and drove a short distance before being stopped by the police and placed under arrest. A search of his person revealed approximately one-half pound of cocaine.

Immediately thereafter, the police went to the defendant’s apartment and entered, using a passkey obtained from the building manager. The defendant was informed that the premises were being secured pending the receipt of a search warrant.

Detective Barnhill drafted an affidavit for a search warrant which, in essence, related the above information. He also stated that while in the process of securing the premises he observed a sifter used in preparing narcotics for use or sale as well as a cardboard box top with several marijuana seeds in it. A county court judge issued a search warrant based upon the affidavit.

The warrant was executed at approximately 11:30 p. m. An inventory of property taken pursuant to the search warrant disclosed that the police seized numerous packages of controlled substances; papers of the defendant showing his residence to be 800 Pearl Street, Apartment 911; a Sony video recorder; and $10,779 in cash.³ The first item found during the search was a plastic bag of cocaine, and the police immediately advised the defendant that he was under arrest for possession of narcotics and orally advised him of his constitutional rights by giving a Miranda advisement.

The defendant moved to suppress evidence and for return of all nondrug related property. He contends that there was an illegal entry into his apartment and, therefore, facts recited in the affidavit relating to items seen in his apartment should not be considered in determining probable cause. Further, he contends that the items seized were not those described in the search warrant, there was no basis upon which to believe the information contained in the affidavit for search warrant, and the search warrant was illegally executed.

A hearing was held, and the trial court granted the motion to suppress. It found that no exigent circumstances justified the warrantless entry into the defendant’s apartment and, since the affidavit for the search warrant included facts gained pursuant to the illegal entry, that there was no probable cause to support the issuance of the warrant.

In ruling on the defendant’s motion for return of all nondrug related property, the court determined that the video recorder was properly seized even though it wasn’t listed on the search warrant because, during the search, the detectives checked the serial number and found that the recorder had been reported stolen. The court ordered that the cash taken from the defendant be returned to him. We disagree with both of the trial court’s rulings except as they relate to the video recorder.

The People contend that the trial court erred because there was probable cause to arrest the defendant, and exigent circumstances justified the warrantless entry to secure the premises and detain the defendant until a warrant could be obtained. The People further contend that the cash was properly seized as a fruit of illegal activity and the defendant is thus not entitled to its return.

In order to support the warrant-less entry and arrest⁴ of the defendant in his apartment, the prosecution must establish the existence of both probable cause and exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); People v. Williams, Colo., 613 P.2d 879 (1980); People v. Coto, 199 Colo. 508, 611 P.2d 969 (1980); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). Probable cause to arrest is established when it is shown that the facts and information within the arresting officers’ knowledge are sufficient to cause a “man of reasonable caution to believe that an offense has been or is being committed.” Lucero v. People, 165 Colo. 315, 320, 438 P.2d 693, 695, cert. denied, 393 U.S. 893, 89 S.Ct. 217, 21 L.Ed.2d 173 (1968). See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Chavez, Colo., 632 P.2d 574 (1981). See also section 16-3-102(l)(c), C.R.S.1973 (1978 Repl. Vol. 8).

As we have said on innumerable occasions, facts and information which support a finding of probable cause need not rise to a level of certainty. “In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Lucero v. People, supra, 165 Colo, at 320, 438 P.2d at 695. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S.Ct. 1788, 14 L.Ed.2d 709 (1965).

In the present case, we conclude that there was probable cause to arrest the defendant. The facts recited above warranted the officers’ belief that the defendant had just sold a quantity of cocaine.

The existence of probable cause, however, is not enough to support the war-rantless entry into the defendant’s apartment. A warrantless intrusion into a home is presumptively unreasonable. See Payton v. New York, supra. However, it has long been recognized that an otherwise improper warrantless search or seizure may be rendered reasonable if there are exigent circumstances justifying the intrusion. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit of a fleeing suspect); People v. Williams, supra (need for prompt arrest to prevent escape and possible destruction of evidence); People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977) (police and fire department respond to emergency call). Factors relevant to a determination of exigency include (1) the degree of urgency and the time required to obtain a warrant, (2) reasonable belief that evidence or contraband would be removed or destroyed, (3) information that those in possession of the evidence or contraband are aware that the police are closing in, and (4) the ease of destroying the evidence or contraband and the awareness that narcotics dealers often try to dispose of narcotics and escape under the circumstances. People v. Williams, Colo., 613 P.2d at 882 n. 4, citing United States v. Rubin, 474 F.2d 262 (3d Cir. 1973); People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974).

Here, a warrantless entry into the defendant’s apartment was necessary to prevent the possible loss of contraband or an attempt by the defendant to flee. When Leingang left the apartment, he was overheard telling the defendant that he would return in a few minutes. The police knew that Leingang had been arrested and would not be returning to the defendant’s apartment. The failure of Leingang to return might have aroused the defendant’s suspicion. Under these circumstances, it was reasonable to believe that the defendant expected Leingang to return promptly to the apartment, and his failure to do so could be expected to alarm the defendant, which in turn would likely lead to the destruction of the contraband and an attempt to flee. Given the time of night and the length of time required to obtain a warrant, the prompt entry was justified. See People v. Williams, supra. We conclude that both probable cause and exigent circumstances existed, and therefore the entry and arrest were justified.

Having established that the warrantless entry into the defendant’s apartment was proper, the contention that the affidavit in support of the search warrant was fatally defective must fail. The defendant’s argument is based upon the conclusion that the entry was illegal; therefore, facts obtained pursuant to the entry should not have been included in the affidavit and considered in making the probable cause determination.

The affidavit filed in support of the search warrant recited all facts known to the officer prior to the entry.⁵ Under these facts alone, there was probable cause to believe that the items sought would be found inside the apartment. However, the affidavit also contained facts obtained pursuant to the entry. The following two sentences form the entire basis of the defendant’s challenge: “During the act of securing your affiant observed a red sifter used in preparing narcotics for use or sale. Your affiant also observed a cardboard box top with several marijuana seeds in it.”

The inclusion of these facts cannot taint the otherwise valid affidavit. It is clear that the police had the right to enter the apartment. Items observed in plain view pursuant to a valid entry may be included in an affidavit for a search warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Franklin, Colo., 640 P.2d 226 (1982); People v. Stoppel, Colo., 637 P.2d 384 (1981). We note further that the scope of the initial entry was limited to detaining the defendant and securing the premises to prevent loss of evidence or contraband. There is no indication that the police conducted any search until after the warrant had been issued.

The People contend that money seized from the defendant was the fruit of illegal activity and, therefore, the trial court erred in ordering that it be returned to the defendant.

It is well established that “[w]hen a defendant demonstrates that an article is not specifically described in the warrant, and when it is not per sé connected with criminal activity, the burden of showing that it is so connected falls upon the People.” People v. Lujan, 174 Colo. 554, 560, 484 P.2d 1238, 1242 (1971), quoting People v. Henry, 173 Colo. 523, 534, 482 P.2d 357, 362-63 (1971). In the present case, the search warrant did not specifically describe the item seized, and the item is not per se connected with criminal activity. Accordingly, the burden of establishing the connection between the money seized and criminal activity is on the People.

The only evidence before the court on this issue consisted of the testimony of Detective Barnhill. He testified that in his experience individuals who deal in narcotics often carry large sums of cash for the purpose of making change in transactions involving narcotics.⁶ The trial court found that the People failed to meet their burden of showing the nexus between the money and criminal activity. Therefore, the court ordered that the money be returned to the defendant. We disagree with the ruling of the trial court.

The only evidence presented at the hearing was that offered by the People. A reading of the record supports the conclusion that the People met their burden of showing that the money seized was connected with the defendant’s criminal activity. There is no evidence to the contrary. Therefore, we conclude that the trial court erred in ordering that the money be returned to the defendant.

The ruling of the trial court suppressing the evidence seized and mandating that the money found in the defendant’s apartment be returned is reversed, and the cause is remanded for further proceedings.

ERICKSON, J., dissents in part and concurs in part, and DUBOFSKY and QUINN, JJ., join in dissent and concurrence. QUINN, J., dissents in part and concurs in part, and ERICKSON and DUBOFSKY, JJ., join in dissent and concurrence.

1 . Section 12-22-322, C.R.S.1973 (1978 Repl. Vol. 5) (this section has since been repealed pursuant to the enactment of the Colorado Controlled Substances Act, sections 12-22-301 to -322, C.R.S.1973 (1978 Repl. Vol. 5 1981 Supp.)).

2 . Section 12-22-412, C.R.S.1973 (1978 Repl. Vol. 5) (repealed effective July 1, 1981; L. 81, p. 741, § 39).

3 . A detailed inventory of the items taken during the search reflects that the police found cocaine, marijuana, hashish, and narcotic para-phemalia including baggies, scales, and snort tubes.

4 . Clearly, the defendant was seized within the meaning of U.S.Const. amend. IV and Colo. Const. Art. II, Sec. 7. Testimony offered by the prosecution at the suppression hearing established that the defendant was detained for approximately two and a half hours and was not free to leave while the search warrant was being obtained. The defendant was “formally arrested” after the search warrant was executed. In light of the nature of the detention, however, it would strain all credulity to hold that the detention of the defendant was anything other than an arrest. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

5 . The affidavit included all of the information found in this opinion, with the exception of the fact that one of the officers overheard Leingang say, when he left the defendant’s apartment, that he would return in a few minutes.

6 . Detective Barnhill testified further that the defendant, after being advised of his Miranda rights, admitted that the money was his and was obtained as the result of his drug dealing activity. The trial court suppressed the defendant’s statements, however, as not having been “truly voluntarily made.” In ordering the suppression of the statements, the court relied upon the fact that there was no written advisement of rights and the defendant had not been reminded of his right to have counsel present before he answered any questions.

The People do not challenge the court’s order. Therefore, this court will not review, sua sponte, the standard applied and the conclusions reached by the trial court.