People v. Upshur

923 P.2d 284, 20 Brief Times Rptr. 53, 1996 Colo. App. LEXIS 4, 1996 WL 28685
CourtColorado Court of Appeals
DecidedJanuary 25, 1996
DocketNo. 94CA0551
StatusPublished
Cited by2 cases

This text of 923 P.2d 284 (People v. Upshur) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Upshur, 923 P.2d 284, 20 Brief Times Rptr. 53, 1996 Colo. App. LEXIS 4, 1996 WL 28685 (Colo. Ct. App. 1996).

Opinions

Opinion by

Judge DAVIDSON.

Defendant, James L. Upshur, appeals from the judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (COCCA); conspiracy to violate COCCA; theft; and second degree forgery. The single issue raised in this appeal is the validity of the warrantless search of a storage locker. We affirm.

In 1989, self-storage businesses in Colorado Springs, including Astrozon Self-Storage (Astrozon), were experiencing a series of burglaries and thefts of items from self-storage lockers. On August 28, based upon reports of suspicious activity concerning locker A-3, a police officer was sent to Astrozon to investigate.

During the investigation, a manager of As-trozon told the officer that they could not locate the lessee of storage unit A3. She also told the officer that the lessee of locker A-3 had not paid rent for several months. In fact, however, the rent was unpaid only for the month of August.

The manager further explained that the lessee of A-3 was “locked out” of the storage unit and that Astrozon had “seized” the locker by placing one of its own locks on the locker. This action, according to the manager, prevented the lessee from entering the locker to retrieve his property until he paid rent or until Astrozon had sold items in the locker to satisfy the debt.

According to his testimony, the officer then asked to see the records of this locker, which included two rental agreements, correspondence, a document purporting to give power of attorney, and some accounting records.

The records indicated that defendant had originally rented the storage space for a one-month term which extended through December 1988. A proposed power of attorney had transferred defendant’s “interest” to one Kevin Cherry, who also had signed a new lease agreement. The new lease agreement was for a six-month term ending on July 1, 1989. According to the file, Astrozon had sent Cherry a past-due notice for August rent.

Several notices of non-payment of rent, returned as undeliverable, were included in the file. The records, although difficult to read, showed that payment of rent on the [286]*286locker had been erratic, that earlier arrear-ages had been paid, and that no rent had been paid for August. The officer testified that, based upon his review, he believed that the rent was several months overdue.

The pertinent rental agreement in the file had four, separate termination mechanisms: (1) “with or without cause at the end of any storage term”; (2) for “reasonable cause” at any time by giving 24 hours written notice; (3) in the event that rent was due and unpaid, “by reason of default in the payment of rent”; or (4) if lessee defaulted in any of the lease covenants or abandoned the premises, the lessor could enter and remove all property “in which event [the] agreement shall terminate.” The lease also provided that any acceptance of a late rental payment did not waive any of the terms of the contract.

The lease also provided that the lessee’s personal property was subject to a lien after 14 consecutive days of nonpayment of rent. After 14 days, the lessor could send a preliminary lien notice, and if the lessee did not pay the delinquent rent by the time specified in the notice, then, according to the lease terms, lessor had the right to enter the locker and seize the property for subsequent sale. A sign in the office, posted pursuant to the Self-service Storage Facility Liens Act, § 38-21.6-104, C.R.S. (1982 Repl.Vol. 16A), confirmed that stored property would be sold after 30 days of non-payment of rent. Several preliminary lien notices from- prior months were in the file.

The officer testified that, after he ended the interview, he contacted a supervisor and later a deputy district attorney for advice as to whether the lessor could let him enter locker A-3. Both agreed that it could.

The officer returned to Astrozon the next day and asked the manager for permission to enter the locker. The manager consented, and again confirmed that it was her understanding that the lessee had no further right to enter the storage unit because of nonpayment of rent. Upon entry into the locker, the officer observed weapon inventories, instruction manuals for security alarms, electrical detonators, and a large quantity of what the police officer described as “Islamic propaganda materials.” The officer left the locker as it was, and the manager reloeked it.

Two days later, the police department’s intelligence unit, again with the consent of. the manager, entered locker A-3 and took photographs. The original investigating officer ultimately entered the unit with a search warrant on September 15 and seized a number of items.

Prior to trial, defendant filed a motion to suppress the evidence, contending that the warrantless entry into the locker was unreasonable in violation of his Fourth Amendment rights. The trial court found that the officer reasonably believed that the lessor had the authority to consent to the search and denied the motion to suppress.

A.

Initially, we address the trial court’s determinations that the defendant had standing to challenge the search and had not abandoned the property in the locker.

The trial court concluded that defendant had not abandoned any personal property and had a reasonable expectation of privacy in the storage locker. Because this factual determination has support in the limited portion of the record which has been provided on appeal, we are bound by those findings. See People v. Thomas, 853 P.2d 1147 (Colo. 1993).

B.

Relying on Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), and People v. McKinstrey, 852 P.2d 467 (Colo.1993), the court concluded that an officer could rely on the consent of a lessor as long as that reliance was objectively reasonable. It determined that the warrantless entry was justified here because the officer reasonably believed that the lessor had authority to consent to the entry into the locker. The court found specifically that, before the officer accepted the consent of the manager, he acted in good faith, reviewed a complicated lease agreement, and consulted a supervisor and an attorney.

[287]*287A trial court’s ruling on a motion to suppress will not be disturbed if it is based upon a proper application of the law to factual findings which are adequately supported by the record. People v. Palmer, 888 P.2d 348 (Colo.App.1994). We find no error.

“The Fourth Amendment is not [a] guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985). The validity of an intrusion based upon a warrantless search must be tested against an objective standard of reasonableness based on the totality of the facts and circumstances known to the officer at the time. See Colorado v. Bertine,

Related

People v. George
2017 COA 75 (Colorado Court of Appeals, 2017)
People v. Hoover
165 P.3d 784 (Colorado Court of Appeals, 2006)

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Bluebook (online)
923 P.2d 284, 20 Brief Times Rptr. 53, 1996 Colo. App. LEXIS 4, 1996 WL 28685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-upshur-coloctapp-1996.