People v. Boff

¶1Pursuant to C.A.R. 4.1, the People challenge a ruling of the district court suppressing marijuana found in a backpack worn by Howard James Boff. We conclude from the totality of the circumstances that the search of the backpack was incident to a lawful custodial arrest, and therefore reverse the order of the district court.

¶2I.

¶3Boff was arrested on July 30,1987, after a police surveillance team spotted him watering marijuana plants in a remote, unpopulated canyon in Dolores County, Colorado. Two police officers were involved in Boff s arrest. The first police officer observed a man later identified as Boff watering marijuana plants. He saw the man leave the canyon wearing a blue backpack. He transmitted to the police dispatcher that the subject was leaving the canyon and that he was in pursuit on foot. Boff left the canyon on a motorcycle. The second police officer stopped Boff on a deserted road about ten minutes later. He asked Boff to turn off the motorcycle engine so they could converse quietly, showed his badge to Boff, and asked him to wait for another police officer who would be arriving shortly. The first police officer arrived about five minutes later. The first police officer identified Boff as the person he had seen watering the marijuana plants. He testified that when he caught up with Boff, the backpack was lying on the ground next to the motorcycle. From the testimony of the two police officers, the obvious inference can be drawn that Boff was wearing the backpack at the time he was stopped by the second police officer.1

¶4The backpack was taken from Boff by the police officer. The backpack and the defendant were then driven to the Dolores County sheriff’s office in Dove Creek.2 After Boff was placed in custody, the police opened the backpack without a search warrant for the purpose of discovering additional evidence.3 They found marijuana in the backpack. Boff was subsequently charged by information with cultivation of marijuana,4 possession with intent to distribute marijuana,5 and possession of more *648than eight ounces of marijuana.6

¶5Boff moved to suppress all evidence seized as the product of an illegal arrest, and to suppress the contents of the backpack as an illegal search and seizure in violation of the fourth amendment. The suppression hearing was held on February 9, 1988. At the conclusion of the hearing, the district court ruled that Boff had been lawfully arrested, so the evidence did not have to be suppressed as the product of an illegal arrest. The district court nevertheless found that the backpack had been illegally searched. The district court stated that a warrantless search of the backpack could not be justified as an inventory search because the purpose of the search had been to find evidence of the crime.7 Nor could it be justified as a search incident to a lawful arrest because the search occurred at the police station and because the backpack had been out of the control of the defendant from the time he was arrested. Because there were no exigent circumstances to justify such a search without a warrant and because the police could easily have procured a warrant, the district court suppressed the marijuana found in the backpack.

¶6The People appealed to this court pursuant to C.A.R. 4.1, contending that the search of the backpack was a search incident to a lawful arrest. They argue that the search was valid because the police could have searched the backpack when they arrested Boff and because the United States Supreme Court does not require that the search of the defendant or his belongings be contemporaneous with arrest.

¶7II.

¶8The district court in its order suppressing the contents of the backpack failed to state whether its order was based on federal or state constitutional law. When the lower court does not make clear that its ruling is grounded on state rather than federal constitutional principles, we will presume that it relied on federal law in reaching its decision. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983); People v. Gann, 724 P.2d 1318, 1320 (Colo.1986).

¶9A search conducted without a warrant is prima facie invalid unless it falls within the limits of several well-recognized exceptions to the warrant requirement. People v. Casias, 193 Colo. 66, 72, 563 P.2d 926, 930 (1977). Even within the scope of a given exception, the search must meet the ultimate requirement of reasonableness. See People v. Santistevan, 715 P.2d 792, 794 (Colo.), cert. denied, 479 U.S. 965, 107 S.Ct. 468, 93 L.Ed.2d 412 (1986).

¶10One of the well-recognized exceptions to the warrant requirement is the search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); People v. Alexander, 193 Colo. 27, 29, 561 P.2d 1263, 1265 (1977). The backpack Boff was wearing when stopped could have been searched by the police at the time he was arrested as a search incident to his arrest. As we stated in People v. Bischofberger, 724 P.2d 660 (Colo.1986):

[I]n the context of the Fourth Amendment the scope of a search incident to a lawful custodial arrest is quite broad. The search need not be limited to a mere pat-down of the arrestee’s outer clothing, but may extend to pockets and other containers, opened or closed, found on the person of the arrestee or within his immediate reach. E.g., [New York v. Belton ], 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ]; [Gustafson v. Florida] 414 U.S. 260 [94 S.Ct. 488, 38 L.Ed. 2d 456 (1973)]; [United States v. Robinson], 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427 (1973)]; People v. Tottenhoff, 691 P.2d 340 (Colo.1984); People v. Traubert, 199 Colo. 322, 608 P.2d 342*649(1980). Such a search of the arrestee s person requires no independent justification, and the searching officer may seize and examine weapons, contraband, or other articles which the officer reasonably believes to be related to criminal activity even though these articles do not directly relate to the offense for which the arrest itself was effected.

¶11Id. at 664-65 (footnote and citations omitted) (emphasis in original); see New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1980) (incident to arrest of automobile occupant, police may seize and search open or closed containers found in the passenger compartment); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1968) (incident to arrest, police may search area within the immediate control of the person arrested); People v. Hufnagel, 745 P.2d 242, 247-48 (Colo.1987) (search of closed endtable after defendant had been arrested and handcuffed upheld as search incident to arrest); People v. Ortega, 181 Colo. 223, 229, 508 P.2d 784, 788 (1973) (search of pocket at police station upheld as search incident to arrest); see also United States v. Litman, 739 F.2d 137, 139 (4th Cir.1984) (en banc) (search of shoulder bag in close proximity to defendant upheld as search incident to arrest); United States v. Mefford, 658 F.2d 588, 593 (8th Cir.1981) (search of brown paper bag carried by defendant upheld as search incident to arrest), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Lee v. State, 311 Md. 642, 668, 537 A.2d 235, 248 (1988) (search of gym bag hanging on fence at distance of two to eight feet from prone defendant upheld as search incident to arrest); Commonwealth v. Madera, 402 Mass. 156, 157, 521 N.E.2d 738, 739 (1988) (search of canvas gym bag defendant was carrying on his shoulder upheld as search incident to arrest); Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986) (search of “gym bag” or “overnight bag” slung over defendant’s shoulder upheld as search incident to arrest). A search incident to an arrest “may have as one of its purposes the discovery of objects or things which constitute evidence that the person arrested has committed a crime. United States v. Simpson, 453 F.2d 1028, 1030 (10th Cir.) (citations omitted), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972). The question then becomes whether a war-rantless search of containers found on or within the possession of the person which is not contemporaneous with an arrest falls outside of the judicially recognized exception of search incident to a lawful arrest.

¶12A.

¶13In People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971), we upheld the warrantless search of a sealed leather pouch that had been tied to the defendant’s pants, as well as a purse and a book he was holding. The items were taken from the defendant at the time he was arrested, transported to the police station, and searched. We noted that, while searches not contemporaneous with arrest are generally improper, this was valid as either a search incident to arrest or as an inventory search because the police promptly took the defendant to the police station after arresting him rather than searching him in a public area. Id. at 53-54, 485 P.2d at 718. Also, in People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973), we upheld a search of a person, clothes, and purse that was delayed long enough to transport a female defendant to the police station to be searched by a matron as required by department regulations. Since these cases were decided, however, the United States Supreme Court has announced new guidelines concerning searches incident to arrest.

¶14At one time, the United States Supreme Court held that a search incident to a lawful arrest must be “substantially contemporaneous with the arrest.” See Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964) (invalidating warrantless search conducted two days before arrest); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (invalidating warrantless search of car in which defendants were arrested after car was transported to police garage). The Court abandoned the contemporaneous *650limitation for searches of the person incident to a lawful arrest, however, in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In Edwards, a search of the defendant’s clothing ten hours after he was arrested, for the purpose of examining his clothes for evidence of paint chips, was upheld as a search incident to a lawful arrest. In addition to recognizing that such a search could be justified as a search for weapons, instruments of escape, and evidence of crime, the Court stated that “[i]t is also plain that searches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention.” Id. at 803, 94 S.Ct. at 1237.

¶15In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), however, the Court declined to overturn the suppression of a two hundred pound double-locked footlocker that had been placed into the trunk of an automobile by the suspects seconds before their arrest. The footlocker was seized by federal agents after the arrest, transported to a different location, and opened without a search warrant more than an hour after the suspects were arrested and securely in custody. The Court distinguished Edwardsand Robinsonas a search of the person rather than a search of luggage or other property. Id.at 16 n. 10, 97 S.Ct. at 2486 n. 10. It stated: “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” Id. at 15, 97 S.Ct. at 2485 (footnote omitted) (emphasis added). This emphasized language has been interpreted by lower courts to create an exception to the warrant requirement for wallets, containers found on the person, and containers such as purses which are “immediately associated with the person.” See Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980); Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (1980); Dawson v. State, 40 Md.App. 640, 395 A.2d 160 (1978); State v. Horton, 44 N.C.App. 343, 260 S.E.2d 780 (1979); Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986); see also 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 5.5(a), at 533-34 (2d ed.1987).

¶16The position rather consistently taken by lower courts is that a search at the police station of the person, clothes, or containers found on or within the possession of the person is justified to the same extent that such a search would have been justified at the time and place of arrest. See, e.g., United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.) (search of purse seized at police station), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); cf. United States v. Johns, 469 U.S. 478, 487, 105 S.Ct. 881, 887, 83 L.Ed.2d 890 (1984) (warrantless search of packages in automobile three days after arrest upheld under automobile exception because packages could have been searched at time of arrest without a warrant). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3(a), at 479-80 (2d ed.1987); Annotation, Lawfulness of Warrantless Search of Purse or Wallet of Persons Arrested or Suspected of Crime, 29 A.L.R.4th 771, 842-51 (1984 & 1988 Supp.); Annotation, Modem Status of Rule as to Validity of Nonconsensual Search and Seizure Made Without Warrant After Lawful Arrest as Affected by Lapse of Time Between, or Difference in Places of, Arrest and Search, 19 A.L.R.3d 727, 739-41 (1968 & 1988 Supp.).8 This is *651so even where the defendant’s access to the objects searched was terminated between the time of arrest and the time of the search. See United States v. Basurto, 497 F.2d 781, 792 (9th Cir.1974).

¶17We believe that the Edwardsrationale applies under the facts of this case. A search at the police station of a suspect, his clothes, and personal property immediately associated with his person, is justified to the same extent that such a search could have been made at the time and place of arrest.9See People v. Harfmann, 683 P.2d 500, 501 (Colo.App.1981); see also United States v. Hoye, 671 F.Supp. 1098, 1103 (E.D.Va.1987) (search two days after arrest of leather bag carried by defendant but placed an arms’s length away from body before arrest upheld under Edwardsas a search incident to arrest). In this case, the backpack could have been searched at the time Boff was arrested. Boff was conveyed promptly to the police station. The search occurred promptly after Boff was booked. Under these circumstances, we conclude that the search of the backpack falls into the judicially recognized exception of a search incident to a lawful arrest.

¶18B.

¶19Boff contends for the first time in his brief to this court that the contents of his backpack must be suppressed under our holding in People v. Little, 198 Colo. 244, 598 P.2d 140 (1979). We do not agree.

¶20In Little, we upheld the suppression of drugs found in the zippered compartment of a travel bag. We rejected the claim that the closed compartment of the travel bag could be searched incident to a lawful arrest. We stated: “Absent exigent cireum-stances, a general exploratory search following a lawful arrest, as made in this case, is not justified.” Id. at 248, 598 P.2d at 143 (citing People v. Hines, 195 Colo. 71, 73, 575 P.2d 414, 415 (1978)).

¶21This statement of the law in Littleis inconsistent with our more recent statements in Tottenhoffand Bischofbergerthat a search incident to an arrest of closed containers found on or within the reach of the person arrested does not require independent justification. Bischofberger, 724 P.2d at 664-65; Tottenhoff, 691 P.2d at 345; see also Harfmann, 633 P.2d at 501. As the United States Supreme Court stated:

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend upon what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

¶22United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973); see also Belton, 453 U.S. at 461 n. 5, 101 S.Ct. at 2865 n. 5 (rejecting the notion that an item can no longer be searched incident to an arrest once it is reduced to the exclusive control of the police).

¶23The validity of the search of the backpack turns not on the presence or absence of the exigencies of police protection and evidence preservation, but on the fact that *652a person, under full custodial arrest based on probable cause, loses his expectation of privacy as to those items on his person at the time of his arrest. See State v. Patton, 47 Or.App. 169, 171, 613 P.2d 1102, 1103 (1980); see also Harfmann, 633 P.2d at 501. In suppressing the marijuana, the district court relied on the faulty premise that some independent justification other than the defendant’s lawful arrest was required to search the backpack at the police station. Cf. People v. Inman, 765 P.2d 577, 581 (Colo.1988) (reversing order suppressing evidence found in inventory search). In so ruling, the district court erred.

¶24We hold that the search of the backpack at the police station was justified by the lawful arrest and prompt conveyance of the defendant to the police station. We conclude that such a search was reasonable under the totality of the circumstances as a search incident to a lawful arrest.

¶25The order of the district court is reversed.

¶36specially concurring:

¶37In my view, the factual scenario which led to the defendant’s arrest is different from the facts that brought about a split decision in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and an opinion of a divided Court in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In this case, we are not dealing with Edwards, where paint chips were recovered from the defendant’s clothing after he was jailed that matched paint chips at the crime scene. We are also not confronted with entry into the double locked footlocker that was dealt with in Chadwick.

¶38The facts and circumstances of each search and seizure case determine the reasonableness of the search. Chimel v. California, 395 U.S. 752, 765, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685 (1969). Search and seizure cases must be dealt with on a case-by-case basis. In this case, the defendant, wearing the blue backpack, was seen and identified at a marijuana field in “Secret Canyon,” and stopped at the request of the officer who saw him as he was leaving the canyon. When the officer who first observed him came in contact with the defendant, who had been stopped by the second officer, the defendant was no longer wearing the backpack, but it was near the defendant and the motorcycle he had been riding. Probable cause existed for a custodial arrest which provided grounds for a search incident to the arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). As I view the record, the backpack was in the “immediate possession” of the defendant and was properly the subject of a search either at the site of the arrest or when the defendant arrived at the sheriff’s office or jail. United States v. Edwards, 415 U.S. at 805, 94 S.Ct. at 1238. The warrantless search in this case was reasonable and should be upheld. See United States v. Robinson, 414 U.S. at 235, 94 S.Ct. at 476; People v. Casias, 193 Colo. 66, 72, 563 P.2d 926, 930 (1977).

¶39Accordingly, I specially concur.