Monday, September 9, 2013

Colorado Court of Appeals People v. Jauch 10CA0588

Decision here.

   Someone's backpack was stolen, along with a computer and a credit card which were in it.  Later, Jauch used the credit card at a gas station and a restaurant.  The police identified her by talking to witnesses who either knew her or described her clothing and vehicle, and by watching surveillance.

   The police obtained a search warrant for Jauch's house.  The warrant identified several items to be seized, including two wallets, a credit card, checks, a rag, receipts, and a turquoise v-neck shirt with ruffles.  The investigator who wrote the affidavit for a search warrant forgot to mention the reason why he wanted to seize the shirt (it was the description given by the witnesses of the suspect's shirt), but the probable cause to search for everything else was clearly stated.

   The police executed their search, and one of the officers assisting with the search found the shirt.  After the investigator affirmed that this was the search he was looking for, the officer seized it.

   Jauch was eventually convicted of theft and identity theft, and appealed her conviction.  She argued that the shirt should have been suppressed since it was not mentioned in the warrant affidavit.  The people argued that the shirt was admissible under the plain view doctrine.

   The court held that although the people didn't establish exactly where in the house the shirt was found (just that it was in the center of one of the rooms), any place that the shirt might have been would also be capable of hiding a wallet or credit card.  The shirt itself was also capable of hiding one of the items mentioned in the warrant affidavit.  So the police had lawful right of access to the shirt during their search.  And the shirt wasn't actually seized when the officer simply lifted it up to show the investigator, it was only seized when Jauch's possessory interest in the shirt was interfered with (which is to say, when the police took it with them when they left).  And since the investigator had probable cause (based on witness statements) to seize the shirt, and since the investigator told the officer to seize the shirt, the seizure of the shirt was lawful under a combination of the plain view doctrine and the collective knowledge doctrine.

   The admission of the evidence and Jauch's conviction were upheld.

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