PEOPLE v. ROMERO

JUSTICE MULLARKEY delivered the Opinion of the Court.

The district attorney brought this interlocutory appeal pursuant to C.A.R. 4.1 to challenge the district court's order granting the defendant Edward A. Romero's (Romero's) motion to suppress evidence which the police seized from his automobile. We reverse because the warrantless search of Romero's automobile comes within the automobile exception to the warrant requirement of the Fourth Amendment.

I.

Romero was stopped for erratic driving at about 1:00 a.m. on June 14, 1987 by Officer Patricia Fletcher of the Trinidad Police Department. When Officer Fletcher pulled Romero over, she noticed that he seemed to be fumbling with something in the front seat. After calling for backup assistance, Fletcher approached Romero who was seated in the driver's seat. She directed him to show his hands and, using her flashlight, she looked inside the car within an arm's reach of Romero. She saw no weapons or contraband. Romero was arrested for driving under the influence of alcohol after he failed to perform satisfactorily the roadside sobriety maneuvers. Fletcher gave Romero the option of having his car either towed or left locked where it stood in the parking lot of a bar. Romero responded that he wanted the car to remain parked. While Fletcher transported Romero to the police station, her backup, Sergeant Swazo, locked Romero's automobile.

At the police station, Officer Fletcher overheard a conversation between Romero and a bail bondsman named Ike Gonzales regarding posting a bond for Romero's release. When Gonzales refused to accept Romero's car as payment for the cost of the bond, Romero, in a loud whisper, told Gonzales that he had weapons in the car and he would give Gonzales the weapons along with the car for the cost of the bond. Gonzales refused to post the bond and left the station. During the booking process, Romero turned to Fletcher and said, "Lady, if you only knew what I had in that car." Speaking to Sergeant Swazo, Romero made a hand gesture as if he were shooting a gun and said, "I wish I would have done it when I had the chance."

Officer Fletcher knew that Romero was a convicted felon and his statements and gestures caused her to suspect that he had weapons in his car. She obtained Romero's car keys and returned to the parking lot where the car had been left. By shining a flashlight through the window, she was able to see the butt of a gun protruding under the armrest on the front seat. Fletcher unlocked the car and found a handgun under the armrest and an empty holster on the floorboard. She did not remove the items but had the car towed to a city impoundment lot. Subsequently a search warrant was obtained and a handgun, holster and ammunition were seized from the car.

Romero was charged in a three-count information with possession of a weapon by a previous offender in violation of section 18-12-108, 8B C.R.S. (1986), prohibited use of weapons in violation of section 18-12-106, 8B C.R.S. (1986), and driving under the influence in violation of section 42-4-1202(1)(a) and (1)(c), 17 C.R.S. (1984). Romero moved to suppress the evidence seized from his car and, after a hearing, the trial court granted his motion. This interlocutory appeal then followed.

II.

In the trial court, the district attorney argued that the officer's warrantless entry into the automobile could be justified as an inventory search or, alternatively, as a search within the automobile exception to the warrant requirement of the Fourth Amendment, relying on Cady v. Dombrowski, 413 U.S. 433 (1973). The trial court granted the defendant's motion to suppress on the ground that the search did not meet the standards for an inventory search, but it did not consider the applicability of the automobile exception. On appeal, the district attorney concedes that this was not an inventory search but argues that the automobile exception applies. Although the defendant referred to the state constitution as well as the federal constitution in his motion to suppress, the trial court did not rely on the state constitution in its ruling and, in his appellate brief, Romero relies solely on a decision of the United States Supreme Court, Michigan v. Long, 463 U.S. 1032 (1983). Accordingly, we will resolve this case on the basis of the automobile exception to the Fourth Amendment. See People v. Inman, 765 P.2d 577 (Colo. 1988).

A.

The trial court held that Officer Fletcher conducted two warrantless searches of Romero's car: first, by shining her flashlight into the car and, second, by entering the car. This analysis is incorrect; Officer Fletcher's observations through the car window were not a search.

As the Supreme Court has noted:

"There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers."

Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion) (citations omitted). The fact that a police officer uses a flashlight to look into the car does not cause her viewing to become a search. United States v. Dunn, 480 U.S. 294, 305 (1987) ("[I]t is `beyond dispute' that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, `trenched upon no right secured . . . by the Fourth Amendment.'") (quoting Texas v. Brown, 460 U.S. at 739-740). In Colorado, it is well-established that "[w]hen an officer legitimately makes an investigatory stop of a vehicle, he may look through a car window and use a flashlight in observing objects lying inside the vehicle." People v. Henry, 631 P.2d 1122, 1128 (1981). See also People v. Naranjo, 686 P.2d 1343 (Colo. 1984) (contraband discovered when police shined flashlight through car window not suppressed); People v. Johnson, 199 Colo. 68, 605 P.2d 46 (1980) (during an investigatory stop, police could shine flashlight into car and were justified in seizing a gun lying in plain view on the floor). Thus, Officer Fletcher did not search Romero's car when she shined her flashlight into the passenger compartment and observed the butt of a handgun under the front armrest.

B.

Romero contends that Officer Fletcher's warrantless entry into his car violated the Fourth Amendment because it was not justified by exigent circumstances. Under applicable United States Supreme Court case law, however, the police may make a warrantless search of an automobile on probable cause and without exigent circumstances. In California v. Carney, 471 U.S. 386, 392 (1985), the Court stated:

"In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met."

The Court emphasized that "[u]nder the vehicle exception to the warrant requirement, `[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.'" Id. at 394 (quoting United States v. Ross, 456 U.S. 798, 823 (1982)). In United States v. Johns, 469 U.S. 478, 484 (1985), the Court said:

"A vehicle lawfully in police custody may be searched on the basis of probable cause to believe it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search."

See also Colorado v. Bannister, 449 U.S. 1, 3 (1980) (automobile exception "exists when an automobile or other vehicle is stopped and the police have probable cause to believe it contains evidence of a crime."). As summarized by Professor LaFave:

"[U]nder the Chambers-Carney [ Chambers v. Maroney, 399 U.S. 42 (1970) and California v. Carney, 471 U.S. 386 (1985)] line of cases the warrantless search of vehicles on probable cause has been upheld even absent true exigent circumstances, and this is why there can generally be no objection to warrantless entry of a vehicle to seize incriminating objects known to be there."

3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.5(a) at 128-29 (2d ed. 1987). See also Katz, The Automobile Exception Transformed: The Rise of a Public Place Exemption to the Warrant Requirement, 36 Case W. Res. L. Rev. 375 (1985-86).

Romero also argues that the police could search the car only at the time of his arrest in conformance with the standards of Michigan v. Long, 463 U.S. 1032, and could not return later without a warrant to conduct a search. We do not agree.

In Long, the United States Supreme Court held that in the context of an investigative stop of a car and its driver, "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief . . . that the suspect is dangerous and the suspect may gain immediate control of weapons." 463 U.S. at 1049. The Court in Long was careful to note that its holding applied only to searches conducted pursuant to an investigatory stop under the reasonable suspicion standard of Terry v. Ohio, 392 U.S. 1 (1968). See Long, 463 U.S. at 1049 n. 14. This court applied Long to an automobile investigatory stop situation in People v. Cagle, 688 P.2d 718 (Colo. 1984), and People v. Cagle, 751 P.2d 614 (Colo. 1988), appeal dismissed sub nom., Cagle v. Colorado, 108 S. Ct. 2009 (1988). Here, the challenged search of Romero's vehicle did not arise in the context of an investigatory stop. Romero had already been arrested and transported to the police station before the events happened which led the police to believe that a weapon was in the car and before the search occurred. Therefore, Long is inapposite and does not support Romero's contention that the police may search a vehicle only at the time of arrest.

A search pursuant to the automobile exception "need not occur while the arrestee is still on the scene." 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.2(d) at 5 n. 142.1 (1989 Supp.). See also United States v. Johns, 469 U.S. at 484 ("There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure."); Cady v. Dombrowski, 413 U.S. 433 (warrantless search of defendant's car the day after defendant's arrest not unreasonable). The fact that the search was not made incident to the defendant's arrest does not bar a later search as long as the police have probable cause. As the Court stated in Chambers v. Maroney, 399 U.S. 42, 52 (1970):

"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment."

The question before us is whether Officer Fletcher acted on probable cause when she made her warrantless search of the car. Plainly, she did. By his words and actions, Romero, a convicted felon, caused the officer to suspect that he had a weapon in his car and that suspicion ripened into probable cause when the officer looked into the car and saw the handle of a gun. Having probable cause, she could enter the car without a warrant. No exigent circumstances were required. The officer's conduct was consistent with her duty to protect the public and did not violate Romero's Fourth Amendment rights. See Cady v. Dombrowski, 413 U.S. at 447 (police justified in conducting "caretaking search" of car trunk because of "concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle").

For these reasons, we reverse the trial court's order suppressing the evidence seized from the car and remand the case for further proceedings.

JUSTICE ERICKSON dissents, and JUSTICE KIRSHBAUM joins in the dissent.