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.

Tenth Circuit US v. Benoit 12-5014

Decision here.

   Benoit lived with his girlfriend (DeGraffenreid) and one of her relatives (Kidd).  While he was not home, his girlfriend used his computer to pay bills.  As she was doing so, she found child porn videos and called the police.

   When the officer arrived, DeGraffenreid and Kidd invited him in.  Kidd (the more tech-savvy of the two) offered to show him the video, and he said "okay."  He watched ten seconds of a video depicting a minor female having sex with an adult male, then called a detective.  The detective told him to seize the computer and obtain witness statements from DeGraffenreid and Kidd.  The computer was seized, and after obtaining a search warrant the cops found 320 child porn images and 80 child porn videos.

   A few days later, Benoit called the police to ask to meet about this case.  He met with them at a truck stop (I'm guessing he was no longer welcome at home...) and admitted to possessing child porn.  Criminal charges followed, and a jury convicted Benoit of possessing and receiving child porn.  Benoit appealed.

   The Tenth circuit held that the federal crime of possessing child porn is a lesser included offense for receiving child porn.  So the lower court will have to pick one of the convictions to stand and dismiss the other.  There was also a restitution issue that needed a little work.  But we're here for the fourth amendment stuff.

   Benoit argued that the officer's search and subsequent seizure of his computer was a violation of the fourth amendment.  The court began by explaining third party consent: essentially, a person has actual authority to consent to a search if they have "mutual use of the property by virtue of joint access" or "control for most purposes."  A person has apparent authority to consent if the facts available to the officer would lead a person of reasonable caution to believe that they had actual authority (even if they actually don't).  Consent by a person with actual or apparent authority to consent is a well-established exception to the warrant requirement.

   After explaining that, the court went on to address private searches.  The fourth amendment protects people from unreasonable searches by the government, but not from unreasonable searches by private citizens.  But if the government "coerces, dominates, or directs the actions" of the private citizen, then the search is really a government action after all (and therefore governed by the Fourth Amendment).

   In this case, DeGraffenreid and Kidd were the ones who did all of the warrantless searching.  DeGraffenreid found child porn on the computer when she was using it on her own.  Kidd repeated this search when the officer arrived.  The officer said "okay," when she asked if she could show him the video, but this isn't enough to say that he directed the search.  All of these actions were undertaken by DeGraffenreid and Kidd on their own initiative, and the officer was just a witness to the search.  So the search was not a government action, and the court doesn't have to decide whether it was reasonable or not; the fourth amendment does not apply to private searches.

   On to the seizure of the computer: in order to seize evidence under the plain view doctrine, three elements have to be met. 1- The officer must not have violated the Fourth Amendment in arriving at the place where the evidence could be viewed. 2- The item must be in plain sight, and it's incriminating nature must be immediately appparent.  3- The officer must have a lawful right of access to the object (in other words, if you're on the street and you see something incriminating through the window of a house, that doesn't justify warrantless entry to go get it).

   In this case, DeGraffenreid and Kidd both had actual authority to consent to the officer's entry, and they had invited him in.  The child porn was obviously child porn, and the officer could see that.  And since he was already in the house, he had lawful access to the computer.  The seizure of the computer was proper.

   As the evidence was properly admitted, Benoit's conviction was affirmed (one of them, anyway).

Colorado Supreme Court People v. Berow 83SA498 83SA506

Decided October 9, 1984.

   Berow and her husband lived in a hotel, and went on a vacation to California.  Before leaving, they asked the manager to watch their room and "arrest any intruders."  While they were gone, the manager found the door had been tampered with and thought he saw someone inside.  He called the cops.  Even though the door had been tampered with, it was apparently still secured from inside by a chain lock.  Believing that a burglary was in progress, the officer forced entry.

   No one was found inside, but while searching only in areas where a person could hide the officer found a hash pipe and some marijuana plants.  He left the apartment, got a search warrant, returned and seized the evidence.  The trial court suppressed the evidence and the people appealed.

   The Colorado Supreme Court held that the apparent in-progress burglary constituted exigent circumstances justifying the officer's entry, and that additionally the hotel manager had apparently been given authority to consent to the officer's entry.  Once inside, the officer found the items in plain view and did not deviate from the original purpose of the search until he had obtained a warrant.  The order suppressing the evidence was reversed.

Colorado Supreme Court People v. Reynolds 83SA346

Decided December 5, 1983

   Officers responded to a call that a gun had been fired during a domestic dispute, and that the reporting party's mother had locked herself in the bathroom.  When they got there, Reynolds admitted the police into the house and gave the police permission (entirely unnecessarily, in my opinion) to break down the bathroom door in order to render aid to his wife, who he said had been shot.  The cops broke down the door, and found Reynolds' dead wife in the bathroom.  Reynolds was subsequently arrested, and in continuing their search of the house (looking for additional victims), the police found additional evidence (including a revolver).  An hour and a half later, CSI photographed the scene, took measurements, and generally did what CSI does.  No warrant had been obtained. 

   The trial court ruled that the police had lawfully made entry into the residence based on the emergency exception to the warrant requirement.  The court also ruled that the evidence was discovered during a lawful search and validly seized under the plain view exception.  However, the pictures and measurements taken by CSI were suppressed because the court held that a warrant was required before CSI could do their thing (the emergency having apparently expired).  The people filed an interlocutory appeal.

   In its decision, the Colorado Supreme Court discussed three exceptions to the warrant requirement: exigent circumstances (in particular, the emergency exception), consent, and plain view.

   The emergency exception exists where there is "a colorable claim of emergency threatening the life or safety of another."  Searches under this exception must be limited to the scope of the emergency (so you can't go looking for gunshot victims in the kitchen drawer.  If they fit in there, the emergency has passed).  The circumstances of this case supported searching the entire house for victims, suspects, or weapons under the emergency exception.

   Consent exists where a person voluntarily waives his rights.  Consent may be limited in scope, time, area (or pretty much whichever way the person giving consent wants to limit it, although the court doesn't come right out and say that).  Consent was also present in this case (at least when the police were kicking down doors), although the district court did not consider it.

   The plain view exception allows police to seize incriminating evidence which they discover under three conditions: 1- the initial intrusion into the protected area must be valid (either under a warrant or an exception to the warrant requirement), 2- the discovery of the evidence must be inadvertent, and 3- the officer has to know that the evidence is incriminating (seems simple enough, but it apparently has to be said.  I almost hate to wonder who screwed that one up so that the court had to spell it out?).

   In this case, the items of evidence were validly seized under the plain view doctrine, pursuant either to consent or the emergency exception.  Now on to the recordings.  The court held that although 90 minutes had passed between the discovery of the evidence and the processing of the scene, the scene was processed as part of an ongoing investigation and was justified under the same circumstances that justified the initial entry and search.  The court didn't see any logic behind the suppression of pictures of lawfully seized evidence.  The suppression order was reversed, and the case remanded back to the trial court to determine whether or not the scene processing exceeded the scope of the original justified search.  Just like an emergency can't justify a general exploratory search, CSI processing of lawfully obtained evidence can't justify a further exploratory search.  If the processing expands beyond the previous search, then the evidence obtained can be suppressed.

US Supreme Court Texas v. Brown 81-419

Decided April 19, 1983.

   Brown was stopped at a driver's license checkpoint.  After the officer requested his license, he took a tied-off balloon full of something out of his pocket and dropped it in the car, then opened the glove compartment (which contained drug paraphernalia), rummaged around in it for a moment, and then admitted he didn't have a license with him.  Why he chose to proudly display the incriminating contents of his glove box to the officer, we will never know.

   The officer told him to get out of the car, and he did.  Knowing that balloons like that are often used to package controlled substances, the officer retrieved the balloon and then arrested Brown.  The balloon was later found to contain heroin, and an inventory of the car revealed a "green, leafy substance."  Brown argued that none of this should be admissible as evidence, and that the plain view doctrine did not apply to this case, and the case found its way to The Supreme Court.

   In its decision, the court explored some exceptions to the warrant requirement (there's actually a nice little laundry list of landmark cases in the middle of the decision).  Focusing on plain view: the court stated that the question whether property in plain view of the police may be seized must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question, and plain view provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment.

   In other words, the plain view doctrine allows officers to seize evidence which they already legally have access to (such as if the evidence is in a public place, or if the evidence is discovered while they're executing a search warrant or conducting a search pursuant to an exception to the warrant requirement).  The decision also notes that the evidence has to be inadvertently discovered, which specifically means that the police can't use plain view as a ruse to discover evidence that they already knew the location of.  Finally, the decision states that the incriminating nature of the evidence must be immediately apparent.

   That last one was a sticking point for one of the lower courts, which had incorrectly suppressed the evidence in this case.  The lower court had interpreted "immediately apparent" to mean that the police must have iron-clad proof that something is incriminating before they could seize it under plain view.  The supreme court clarified that in order to seize something under plain view, the police need only have probable cause to believe that it was evidence.

   There's also some discussion in this decision of the probable cause standard: "As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false."

   Other than that, the most interesting part of the decision spells out that using flashlights to illuminate the interior of a car (like using a "marine glass or field glass") is not a search, and neither is moving around to get a better vantage point to see what is inside a car.

   The Supreme Court ruled that the evidence in this case was admissible under the plain view doctrine.