Opinion
No. 28094
Decided June 12, 1978.
Interlocutory appeal by the People after a motion to suppress was granted as to marijuana seized during the execution of a search warrant.
Ruling Reversed
1. SEARCHES AND SEIZURES — Arrest — Officers Passed Walk-in Closet — Clothing — Ted's Custom Tailoring — Burglary — Search — Discovery of Marijuana — Seizure — Proper. Where police officers, while executing an arrest warrant, walked down hall of apartment toward bedroom to apprehend defendant, and while walking toward bedroom passed open walk-in closet containing numerous items of clothing with price tags attached, the labels in the clothing bearing inscription "Ted's Custom Tailoring," and where said shop having recently been burglarized, led officers to obtain search warrant and conduct search of defendant's apartment which extended to bedrooms, dressers, and closets which search produced not only stolen clothing but also a large quantity of marijuana, held, under the circumstances, the search was a reasonable one since it extended only to areas where the stolen items described in search warrant might be secreted; it was not a general and exploratory search as to require that the marijuana which was seized be suppressed.
2. Contraband — Discovered — Lawful Search — Police — Close Eyes — Ignore — Negative. Police officers are not compelled to close their eyes and ignore contraband which they discover in the course of a lawful search.
3. Possession With Intent to Dispense Dangerous Drug — Brought About — Burglary and Theft — Search — Reasonable. The mere fact that a burglary and theft investigation brought about pending charge of possession with intent to dispense a dangerous drug, cannibas over one ounce, does not cause the search and the subsequent seizure to be unreasonable.
Interlocutory Appeal from the District Court of the City and County of Denver, Honorable Gilbert A. Alexander, Judge.
Dale Tooley, District Attorney, Brooke Wunnicke, Chief Appellate Deputy, for plaintiff-appellant.
Brenman, Sobol, Baum, Zerobnick; Epstein, Zuckerman Lutz, P.C., Leo Zuckerman, Dan Plattner, for defendants-appellees.
This interlocutory appeal was taken after a motion to suppress was granted as to marijuana seized during the execution of a search warrant. We reverse and remand for trial.
An arrest warrant was issued for Ted A. Garcia. When officers went to his apartment, they were admitted by Randall Garcia and were told that Ted A. Garcia was in a bedroom at the end of the hall. As the officers went down the hall toward the bedroom, they passed an open walk-in closet. The closet contained numerous items of clothing with price tags attached. The labels in the clothing bore the inscription "Ted's Custom Tailoring." Ted's Custom Tailoring had been recently burglarized. The officers arrested everyone in the apartment, with the exception of one woman.
With an eye to the warnings contained in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the apartment was made secure, and a search warrant was obtained before the officers conducted a search for stolen clothing, including some missing belts which were taken in the course of the burglary of the premises known as Ted's Custom Tailoring. Seven hours after the arrest, the officers made a search of the defendant's apartment, which extended to the bedrooms, dressers, and closets and produced not only the stolen clothing but also a large quantity of marijuana.
[1-3] The sole issue before us is whether the search conducted pursuant to the search warrant was of such a general and exploratory nature as to require that the marijuana which was seized be suppressed. In our view, the search was reasonable and extended only to the areas where the stolen items described in the search warrant might be secreted. People v. Tucci, 179 Colo. 373, 500 P.2d 815 (1972); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963). Police officers are not compelled to close their eyes and ignore contraband which they discover in the course of a lawful search. Alire v. People, 157 Colo. 103, 402 P.2d 610 (1965). Accord, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The mere fact that a burglary and theft investigation brought about the pending charge of possession with intent to dispense a dangerous drug, cannibas over one ounce (sections 12-22-404 and 412, C.R.S. 1973), does not cause the search and the subsequent seizure to be unreasonable.
Accordingly, the order suppressing the marijuana seized in the execution of the search warrant is reversed, and the cause is remanded for trial.