Opinion
No. 74-505
Decided February 19, 1976. Rehearing denied March 18, 1976. Certiorari granted May 11, 1976.
Trial court denied defendant's motion to suppress heroin seized from his person, and he was subsequently convicted of narcotics possession. Defendant appealed.
Reversed
1. CRIMINAL LAW — Search and Seizure — Warrantless — Contraband — Not In Plain View — Frisk for Weapons — Outside Scope. Where during the execution of a search warrant for defendant's house, defendant made a movement to put his hand in his pocket, police officer was not justified in seizing a tin foil packet that either fell or was taken from the defendant's pocket and that was later found to contain heroin, the contraband itself not being in plain view, and the search having exceeded the scope of a frisk for weapons.
Appeal from the District Court of the City and County of Denver, Honorable Robert P. Fullerton, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Public Defender, Mary G. Allen, Deputy Public Defender, for defendant-appellant.
Division II.
Defendant, Orlando L. Casias, appeals from a conviction of the charge of possession of narcotic drugs in violation of § 12-22-302, C.R.S. 1973. We reverse the judgment.
Defendant alleges that the heroin admitted into evidence at his trial was the product of an illegal search and seizure, and therefore that his motion to suppress that evidence should have been granted by the trial court. We agree.
The evidence from the People's witnesses concerning the search and seizure is conflicting, but the following testimony was given at the suppression hearing and the trial. Officer Cinquanta had obtained a search warrant for defendant's house on the basis of information obtained from a reliable informant and from his own personal observation of the house. The validity of this warrant has not been questioned. Officer Cinquanta and several other officers went to the defendant's home to execute the warrant. When the defendant came outside on the porch the officers served him with the warrant. Defendant read the warrant and then apparently made a move as though to place his hand in his right front pocket.
Officer Cinquanta testified that he thought the defendant was reaching for a weapon since he knew that the defendant had previously been involved in violent crimes. The officer stated that he grabbed the defendant's hand while it was still in his pocket, and when he pulled defendant's hand from his pocket, he observed two tinfoil-wrapped objects in the hand, which he seized. At this point he arrested defendant. Officer Hollingshead testified that defendant placed his hand in his right pants pocket, at which time Officer Cinquanta took the defendant's wrist and pulled it out of his pocket, with his left hand. Then, putting his own right hand into the defendant's pocket, Officer Cinquanta pulled out the foil-wrapped objects. The foil-wrapped objects contained two balloons which were filled with a substance which later proved to be heroin. However, the record does not indicate that at the time of the search and seizure the officers knew that the foil-wrapped objects were balloons or that the balloons contained heroin.
The trial court found that the search warrant covered only defendant's home and that therefore the search of the defendant's person was outside the scope of the warrant. It denied the defendant's motion to suppress, however, on the ground that the search was a valid warrantless search for weapons.
There may be a valid warrantless search for weapons where a police officer has reason to believe a suspect is armed, but that search must be limited to a "frisk" directed at the discovery and appropriation of weapons, rather than at evidence in general. People v. Navran, 174 Colo. 222, 483 P.2d 228. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. It is not clear from the trial court's findings at the hearing on the motion to suppress whether it found that the officer placed his hand in the defendant's clothing and removed the tinfoil objects, or whether the officer, in pulling the defendant's hand out, also brought the tinfoil-covered objects into view. In People v. Noreen, 181 Colo. 327, 509 P.2d 313, a case with great factual similarities to the case at bar, the court stated the general rule that when a police officer is conducting a "frisk" or "pat-down" for weapons, he may force the defendant to remove his hand from his pocket, and any contraband found in the hand after it is removed from the pocket may be seized under the "plain view doctrine." See People v. Nefzger, 173 Colo. 199, 476 P.2d 995. The court, however, went on to say that the officer cannot reach into the defendant's pocket to find out what is there, as such a search and seizure would be beyond the scope of a permissible frisk. See also People v. Navran, supra; People v. Bueno, 173 Colo. 69, 475 P.2d 702. If the events occurred as Officer Hollingshead described them, then Officer Cinquanta, after removing defendant's hand from his pocket, conducted a full-blown search of the defendant's pocket rather than the limited pat-down of that pocket permitted under Terry v. Ohio, supra.
Even if the search occurred under the circumstances as they were related by Officer Cinquanta, the seizure still may not be upheld, The seizure might be valid under the "plain view doctrine" if, when the defendant took his hand from his pocket the contraband was visible to and identifiable by the officers. People v. Nefzger, supra. However, in People v. Ware, 174 Colo. 419, 484 P.2d 103, the court held that an item which is contained in an aluminum foil package is not an item in "plain view." The only testimony in the record concerning the condition of the seized item is that of the arresting officers who testified that the balloons were "foil-wrapped" and "wrapped in tinfoil." Therefore, even if the defendant brought the item out into the open in the palm of his hand when his hand was pulled from his pocket, the officer was not justified in seizing an item which he admitted was wrapped in tin-foil and could not have been contraband in "plain view."
[1] Thus, since under either set of circumstances testified to by the officers, the search and seizure cannot be validated as a warrantless search for weapons, the trial court erred in denying defendant's motion to suppress. Since the only charge against the defendant was the possession of heroin and the only heroin seized from the defendant was that which should have been suppressed, we find it unnecessary to deal with defendant's other contentions of error.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
JUDGE RULAND and JUDGE STERNBERG concur.