People v. Alarid
483 P.2d 1331
Colo.
1971
Check Treatment
Mr. Justice Erickson

delivered the opinion of the Court.

Pursuant to C.A.R. 4.1, the district attorney of Arapahoe County prosecutes this interlocutory appeal seeking to reverse an order suppressing certain evidence that was seized pursuant to a search warrant. The search warrant in issue was dated August 6, 1970, and permitted the search of premises known as 3740 South Delaware, Englewood, Colorado. The search warrant was issued on the basis of affidavits of Sam DeCant and Bob D. Sendle of the Arаpahoe County Sheriff’s Department. Both affidavits were predicated upon information supplied by a сonfidential, reliable informant. The affidavits established that the informant had seen marijuana and heroin and had рurchased marijuana at the residence identified as 3740 South Delaware.

*291 On the same day, DeCant and Sendle gained entrance to 3740 South Delaware and conducted a thorough search which resulted in the seizure of marijuana and narcotics paraphernalia. The house at 3740 South Delaware Street was a multiple-family dwelling which was owned by the defendant Betty Lou Norman. Mrs. Norman had rented a basement apartment to the defendant Jo Ann Susan Smith (hereinafter referred to as Miss Smith). The sheriff’s officers, who were conducting the search, broke thе door down to Miss Smith’s apartment in order to effectuate a search of the entire premises. Narcotics were found both upstairs and downstairs and all through the house.

The defendants in this action filed a motion ‍​​​​‌‌‌​​​​‌​​​​‌‌​​​‌​​​‌‌​​​‌​‌‌‌​​‌​‌‌​​‌​​‌‌‍to suppress, relying on our decision in People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970), in which we held that “* * * when authority is desired to search a particular apartment or apartments within an apartment building, or a particular room or rooms within a multiple-occupancy structure, the warrant must sufficiently describe the apartment or subunit to be searched, either by number or other designatiоn, or by the name of the tenant or occupant; and where, as here, the warrant merely describes the еntire multiple-occupancy structure by street address only, without reference to the particular dwelling unit or units sought to be searched, it is constitutionally insufficient and the evidence seized pursuant to such a warrant will be suppressed upon proper motion.” After hearing the evidence, and making a finding that 3740 South Delaware was a multiple-family dwelling in which the defendant Miss Smith maintained a separate apartment, the trial judge suppressed thе evidence.

The district attorney argues that the trial judge was in error, because he failed to uphold the search on the basis of two well-recognized exceptions to the general rule which we established in the Avery case. The first exception that the district attorney would have ‍​​​​‌‌‌​​​​‌​​​​‌‌​​​‌​​​‌‌​​​‌​‌‌‌​​‌​‌‌​​‌​​‌‌‍us adopt as a basis for reversal is that the Norman house was *292 occupied in common by everyone. Renner v. State, 187 Tenn. 647, 216 S.W.2d 345 (1945); Nelson v. State, 200 Ind. 292, 163 N.E. 95 (1928). He would also have us reverse the trial judge on the basis of an additional exception thаt prevails when the multiple unit character or structure is not known to the officers and cannot be ascеrtained from the exterior appearance of the unit. Minovitz v. United States, 112 App. D.C. 21, 298 F.2d 682 (D.C. Cir. 1962); Owens v. Scafati, 273 F.Supp. 428 (D.C. Mass. 1967). For a discussion of the general rule and its exceptions, see Annot. 11 A.L.R.3d 1330.

The contention that the Norman house was occupied in common by everyone is clearly refuted by the amply supported finding of the trial judge that Miss Smith occupied a separate apartment within the residence located at 3740 South Delaware. There was undisputed testimony that Miss Smith rented and ‍​​​​‌‌‌​​​​‌​​​​‌‌​​​‌​​​‌‌​​​‌​‌‌‌​​‌​‌‌​​‌​​‌‌‍oсcupied a basement apartment at 3740 South Delaware. There was also evidence that this apartment had kitchen facilities, a complete bathroom and a separate outside entrance tо which Miss Smith had the keys. The only door in the Smith apartment leading to the upstairs was locked from the inside.

This Court adoрted the second exception urged by the district attorney in People v. Lucero, 174 Colo. 278, 483 P.2d 968, announced contemporaneously with this oрinion. This case is distinguishable from Lucero, however, in two important respects. First, in Lucero, the trial court found that the officers had every reason to believe that the house was a one-family residence. They did not know that the house had been divided into individual apartments until they actually entered the premises. Here, the trial court found that the officers ‍​​​​‌‌‌​​​​‌​​​​‌‌​​​‌​​​‌‌​​​‌​‌‌‌​​‌​‌‌​​‌​​‌‌‍knew or should have known that the housе was not a one-family residence, and there is evidence to support that finding. The fact that the officers had notice of the separate dwelling facilities located in the basement of the residence is еvident from the affidavit of Officer *293 DeCant. The affidavit, containing the facts provided by the confidential, reliablе informant, indicates that the downstairs rooms had been used as separate living quarters by non-family members, on a possible rental basis. The record also indicates that there was a separate outside entrance leading to the basement apartment and that Miss Smith utilized the separate entrance in going to and from the аpartment. Thus, it is apparent that People v. Avery, supra, is applicable herein, and that the warrant is constitutionally insufficient since no facts were presented which would show that there was probable cause to believe that criminal activity was occurring in both dwelling places.

A second factual distinction between this case and the Lucero case is that the search in Lucero was restricted to that portion of the premises occuрied by the persons identified ‍​​​​‌‌‌​​​​‌​​​​‌‌​​​‌​​​‌‌​​​‌​‌‌‌​​‌​‌‌​​‌​​‌‌‍in the affidavit on which the warrant was predicated. Here, as in Avery, the officers cоnducted a general, exploratory search that went beyond the area which they had probable cause to search.

Accordingly, the ruling of the trial court is affirmed.