People v. Dandrea

Colorado, The PEOPLE of the State of

Plaintiff-Appellant, Joseph DANDREA,

Donald

Defendant-Appellee.

No. 86SA98. Colorado, Court of

En Banc.

May a.m. on approximately

At 7:30 November 1, 1985, Marion Broadmoor Police Officer pickup Shipley pursued stopped and a truck by Remy Espi- erratic manner driven passen- noza.1 The defendant was sole response ger in the truck. to a radio backup by Shipley for assist- call Officer ance, Woodward of the Colo- Officer John Department Springs Police arrived on rado Espinoza removed the scene. Woodward truck, pickup seat of the from the driver’s driving suspended him for arrested with license, him, placed and driver’s searched Barney Iuppa, Atty., Robert B. Dist. police patrol him in a car. Officer Wood- Harward, Deputy Atty., Dist. Colorado Deputy County and El Paso Sheriff ward Springs, plaintiff-appellant. Labrecque, responded who had also Victor P.C., Hartley, Dennis' Dennis W. W. assistance, Shipley’s request for to Officer Springs, for defendant- Hartley, Colorado pick- then removed the defendant from appellee. up. descending feet bordered A cliff over 100 KIRSHBAUM, Justice. got the roadside. As the defendant out vehicle, grabbed slipped he and appeal, People, interlocutory In this of the truck. The officers escorted door 4.1, pursuant challenge an order to C.A.R. Concluding him to the middle of the road. County sup- El Court of the Paso District intoxicated, they discussed that he was by pressing certain evidence removed law what to do with him. pocket of enforcement officers from the defendant, day extremely cold and by Joseph Donald Because the was coat worn Dandrea, transporting stop traffic had occurred on an isolated prior to defend- road, officers decided that facility. mountain ant an alcohol detoxification personal safety might The trial court concluded that the search defendant’s provisions jeopardized of the if he were left at the scene.2 not authorized was to take the defendant They and Intoxication then decided Colorado Alcoholism -316, transport and 25-1-301 to into civil Treatment §§ (the Act), facility pur- (1982 Supp.) and him to an alcohol detoxification C.R.S. & 1986 provisions of the Act. Woodward the defendant’s constitutional suant to violated Labrecque, accompanied by Shipley, the search and rights. The contend that police Shipley’s the defendant to car. proper. affirm the trial court’s took We departmental policies,3 Labr- Pursuant order. any per- Shipley search of the defendant because of 1. The defendant concedes that Officer Espinoza. ceived threat to themselves. had cause to arrest hearing, they suppression Ship- Officer testified that believed 3.At the first 2. The officers intoxicated, ley Department Broadmoor Police and such intoxi- testified that the defendant was requires weapons policy an officer to search for the defendant’s cation was demonstrated glassy eyes, movements, transporting body in a vehicle. before his slowed testimony hearing at that stumbled as he exit- Officer Woodward's the fact that the defendant suggested that a must be searched speak the officers. The also ed the vehicle to being transported although weapons to a he was defendant asserted that facility, incapacitated but did not indicate the detoxification "drunk” he was not intoxicated or Deputy Labrecque requirement. point danger to the health or source of such to the County Department El Paso Sheriffs and further asserted testified of himself or others any person fatigue might easily major policy who is to be been a dictates have patrol transported first be symptomatology. in a car must The offi- contributor handcuffed, weapons they but that their searched for cers stated that did not ecque conducted a personal possessions search of the are then thor- weapons defendant for placing before him oughly searched in presence in the officer, vehicle. When the thickness of the inventoried and secured in a jacket impossible made it supervisor locked container. The also testi- ascertain the nature of items in the fied such search could include opening jacket, Labrecque began removing paper packet such as the one found in the the placing contents of the and possession turning and over them on the trunk of the any car. Woodward police. contraband items, observed the one of which was a The trial court ruled that the offi- packet heavy small paper approxi- of folded cers had cause to take the defend- mately the size of a razor blade. Conclud- protective ant into civil custody for trans- ing paper that the did contain a razor portation home or to a detoxification facili- blade, opened Woodward it. He discovered ty in 25-1-310(1) accordance with section of white, substance, powdery a later identified Act; the that the only empowers statute as cocaine. The defendant was taken to police officers pat-down to conduct a search County charged the El Paso Jail and later person of the taken into civil possession in a one-count information with custody; and that the packet search of the of a schedule II controlled substance found in possession the defendant’s violat- 12-22-310, violation of section 5 C.R.S. ed provisions constitutional prohibiting un- 18-18-105, and section 8B C.R.S. reasonable searches. The trial court fur- packet ther held that the should have been quarantined any without

The defendant over for trial further search was bound of preliminary hearing. its contents and returned after a He then filed to the defendant cocaine, upon his suppress asserting a motion to the release from the detoxification facility; that person- it had detoxification center been obtained violation of II, authority nel lacked both article addi- Colorado tional search of items such as the Constitution and the fourth amendment to one here found in possession; the defendant’s the United States Constitution. At the improper that it would be suppression hearings first of two conclude that Officers Shipley Deputy evidence contraband have and Woodward and Labr- would inevitably been ecque testified that the search discovered had the of the de- impermissible officers not conducted an initiated fendant was as a result of the transporting the defendant. decision to take the defendant into civil protective custody and was limited to a II any weapons desire to discover the defend- possessed. People argue ant have At the second that the Act should be hearing acting coordinator of the Pikes construed to authorize officers to complete Peak Mental Health Center alcohol receiv- person conduct as a search of the ing persons arriving property center testified of an individual taken into initially given breathalyzer protective custody pursuant the center are to section 25-1-310(1) test; as permitted that if the test indicates an would be if alcohol 0.04,4 greater placed level is than individual individual were under arrest based given pajamas admitted to the center and on cause that the had com- wear; clothing and that the individual’s mitted a criminal act.5 We conclude that authority suffice at times. No sonnel lacked the to conduct a thor- police department ough personal actual manuals or directives search of the defendant’s effects. acting receiving were introduced into evidence. director of the alcohol cen- serving Springs ter the Colorado area testified presumably represents facility 4. This measurement that a delivered is asked to grams per number of alcohol two hundred remain at the center and to consent to a search effects; personal ten liters of breath. of his or her that if the detain- thorough agrees, ee search is made argue person’s personal 5. The that the trial court erred in effects for contraband as well concluding per- weapons; practice that the detoxification center as for and that center require patrolman, in detain- policy emergency Act service provisions general argument

rejection ing person, taking protec- this him into proposition. further conclude that detaining We custody. doing, In so tive case this circumstances may protect by reason- himself in concluding err the trial court did not every shall make rea- able methods but packet paper open decision to protect the detainee’s effort sonable unreasonable. safety. protec- health and tive under is not an language unambig this section statutory When uous, Assembly entry shall the intent of the General and no other record language, taking gleaned from that to be be made to indicate that the has entire statute. Peo into consideration the charged been arrested Court, (Colo. District ple v. Nothing crime.... this subsection Schneider, 1986); Heagney v. incapaci- preclude shall an intoxicated or 25-1-310(1) (Colo.App.1984). Section person dangerous is to the tated who not pertinent part in as follows: states safety of health and himself or others (1) Emergency commitment. When being from assisted his home or like to any person incapacitated or is intoxicated by the law enforcement officer location dangerous clearly to the by alcohol and emergency patrolman. or service others, safety and of himself or health language This indisputably articulates into person protective taken such shall be legislative clear the act determination that custody by enforcement authorities law person protective of cus- civil acting patrol, emergency or an service tody an arrest.6 is not cause, placed and in an with police officials The conclusion that facility. approved If no such treatment encountering persons must intoxicated available, are he be de- facilities make a distinction between criminal custo facility emergency tained in an medical protective dial and civil detentions arrests long may jail, or but for so as be provisions by other of the Act. reinforced necessary injury to to himself or prevent purpose sets of the Section 25-1-301 forth prevent others or to a breach of the Act as follows: peace. law enforcement officer personnel open of detainees at detoxifica- would containers and folded searches conducted large enough Lafayette, pieces paper, plastic to of or tinfoil tion centers. See Illinois v. 640, (1983).(the quantity a small of contain razor blade or powder open appearing reviewing noting, but would not tinfoil to propriety of a full Court ciga- arrestee, gum the contents of inventory contain or examine of a that it criminal packages. rette The administrator also stated was to have unclear whether defendant person agreed incarcerated, to remain at the center that if a making appropriate been an search, objected personnel center State, remand): but to inquiry 397 So. 2d on Walden permit to would (Fla.Dist.Ct.App.1981) (police pat- officer's personal thorough detainee's ef- search of the not authorized down search of defendant was testified, further how- fects. administrator did to where defendant not consent ever, objected remaining to at that a who placed and was not in- in detoxification center searched, center be but instead would not State, capacitated): So.2d 315 Bennett custody of would be released to the the officer (same result); gener- (Fla.Dist.Ct.App.1977) see facility who had to delivered the LaFave, 5.5(c) (2d ally Search & 2 W. Seizure jail person’s transport No to or to the home. 1987) (full inventory ar- ed. search of criminal indicating evidence was whether in introduced unjustified unlawful if ei- restee is detention this case the would have been taken defendant prior probable cause for arrest has ther because jail event defend- or driven home in the dissipated was not afforded or because arrestee ant refused remain at the center. release). obtain stationhouse Assuming, deciding, theory of without that the their authorizes to assist to The statute officers discovery inevitable advanced persons incapacitated intoxicated or homes applicable question permissible clearly dangerous not to the health alcohol but extent of initial field search of a The defend- custody and of themselves or others. placed protective because intoxication, challenged authority of the offi- ant sup- has is insufficient to this evidence therefore, custody, We, place protective cers him in civil port theory. said need not deter- question permissible scope mine the however. (1) policy It of this state that is the officer to make an legal otherwise persons may alcoholics intoxicated notwithstanding the fact that the subjected prosecution person may not be criminal arrested be intoxicated or consumption incapacitated by because of their of alcoholic alcohol.

beverages rather should be afforded together, Considered provisions these indi- a continuum treatment order legislative cate a clear per- decision that they may productive normal lives as lead sons taken into civil custody society.... members of solely because intoxication are to be (2) passage part With the of this quite differently persons treated from for- regular its first session placed under custodial arrest because of ty-ninth assembly recognized general has suspected criminal conduct.7 pervasiveness alco- the character and legislative policy harmony This is in public hol abuse and alcoholism policy underlying the Uniform Alcohol- alcoholism are health intoxication and Act, ism Intoxication Treatment problems should handled which U.L.A. 57 which served as the model proce- public rather than health criminal emphasized by for the Act. As a Commis- dures. ... sioner’s note to the pro- Uniform Section states in follows: 25-1-316 tective authorized thereunder “is way No similar pro- Criminal laws—limitations. which the county, emergency municipality, political other vide other ill peo- assistance to may adopt ple, or a local as those in subdivision enforce such accidents or those who law, ordinance, resolution, having or rule heart It have sudden attacks. is a civil drinking, procedure_” the force of law that includes 9 U.L.A. at See ABA drunkard, being being a common or 1-2.2 Standards Criminal Justice § 1986). (2d found in as one The by an intoxicated condition ed. detention authorized permitted giving only prevent of the elements of the offense rise the Act is harm penalty civil resulting to a criminal or or sanction. to the detainee or others from the inability

detainee’s or act. See County v. Carberry Adams Task Force Alcoholism, (Colo.1983). 672 On P.2d 206 (3) Nothing part any in this 3 affects therefore, directly The cannot be used ordinance, law, resolution, rule or indirectly justify equivalent or of a against driving, driving drunken under supported by criminal custodial arrest not alcohol, the influence of or other similar See, State, cause. e.g., Peter v. involving operation offense of a ve- (Alaska 1975); State v. Per- aircraft, hicle, machinery or a boat or 21, (1984); ry, 298 688 P.2d Or. 827 State v. sale, or equipment regarding or other Harlow, 547, 123 N.H. 465 A.2d 1210 purchase, possessing, or use dispensing, beverages of times alcoholic at stated by places a of class require pro Act The does not persons. of a placing curement warrant to. a (4) The fact that is intoxicat- person protective custody. Keeping civil incapacitated ed or alcohol shall mind, recognizing this fact in and also prevent prosecuted his arrested or legislative policy designed the Act is act or for the commission of criminal every accomplish, we must make effort to (1) conduct not enumerated subsection construe statute a manner does of this section. not violate constitutional limits. 2-4- (1980);

(5) 201, Loomis, Nothing People in this 3 shall con- IB v. C.R.S. (Colo.1985); upon of 1320 strued as a limitation Yarbro v. Hil- Robinson, 218, 467, upon probable 414 U.S. S.Ct. 7. An arrest of a cause v. 94 38 Ohio, 1, having (1973); purpose a crime for the Terry committed L.Ed.2d v. 392 U.S. 88 427 booking 1868, facilities 20 L.Ed.2d S.Ct. 889 arrest." States considered a "custodial United 1216 (1984); (Colo.1982); 1652, 85 80 L.Ed.2d Rakas v. Illi 822 Corp., 655 P.2d Hotels ton 465, 128, 421, Rico, nois, 99 99 S.Ct. 58 L.Ed.2d 442 U.S. 439 U.S. Torres v. Puerto cf. S.Ct. Unruh, (police (1978); offi 713 2425, People 1 v. P.2d 370 387 — denied, -, (Colo.), 106 cert. U.S. cers’ warrantless statute, vi though (1986);

baggage, 2894, People authorized 90 L.Ed.2d 981 S.Ct. where (Colo.1981). fourth amendment olates P.2d 1070 Savage, 630 absent). exigent circumstances cause and of establish- prosecution bears burden in presumptively warrantless justify depar- ing exists to that some basis the fourth amendment valid under principle of fed- ture from the fundamental II, article Constitution8 and States United constitutional law that a eral and Colorado Constitution,9 7, the Colorado presumed to violate warrantless search specifical narrow and subject to few expectation of freedom the reasonable Thompson v. exceptions. ly delineated privacy of one’s intrusion into the from 409, 17, 83 Louisiana, 469 105 S.Ct. U.S. enjoyed by all personal effects person and curiam); (1984) (per United L.Ed.2d 246 Sanders, 442 private parties. Arkansas Court, Dist. 407 States v. United States 753, 2586, L.Ed.2d 235 99 S.Ct. 61 U.S. 2125, 297, 32 L.Ed.2d 752 92 S.Ct. 385, Arizona, (1979); 437 U.S. Mincey v. P.2d 529 (1972); Reynolds, 672 People v. (1978); United S.Ct. Harding, P.2d (Colo.1983); People Chadwick, 433 U.S. States v. (Colo.1980). requirement general (1977); Katz 53 L.Ed.2d 538 v. Unit- ap only upon prior proceed that a search States, 88 S.Ct. ed 389 U.S. interposes magistrate proval by judge Brewer, 576; People v. L.Ed.2d judicial detached officer be neutral and (Colo.1984); Williams, houses, “persons, police and the tween Colo. citizen, thus effects” of the papers, and of what constitutes Any determination areas of a ensuring protection of those police conduct reasonable warrantless expecta person’s life to which autho- detentions Thompson v. Lou privacy attach. tions Act must take into account rized isiana, deemed most of certain factors absence Place, 246; 462 v. L.Ed.2d United States determining permissible significant in 696, 2637, 110 77 L.Ed.2d 103 S.Ct. U.S. suspected of scope of warrantless searches States, (1983); 451 U.S. Steagald v. United justifications for primary The criminals. (1981); 204, 1642, 38 68 L.Ed.2d 101 S.Ct. searches or sei- permitting warrantless 347, States, 389 88 U.S. Katz v. United 10 are incident to custodial arrests zures (1967). con 507, 576 The 19 L.Ed.2d S.Ct. avoiding of evi- preserving and destruction ulti of a search stitutional test warrantless dence of the crime for which of question to the wheth mately is reduced safety protecting and has been arrested under all reasonable er the search was arresting v. of officers. Chimel United attendant circumstances. relevant Califor- 752, 2034, nia, 23 L.Ed.2d 109, 395 89 S.Ct. Jacobsen, 104 S.Ct. U.S. 466 U.S. v. States effects, searches and sei- from unreasonable United States amendment to the 8. The fourth zures; any place provides: or and no warrant to search Constitution things any or shall issue without seize people be secure in their effects, searched, houses, against papers, describing place or persons, and to be seizures, seized, not and shall thing unreasonable searches near as to be or issue, violated, cause, no Warrants shall and be, supported by nor without cause, supported or upon probable Oath writing. reduced to oath or affirmation affirmation, describing particularly Const, II, art. 7.§ Colo. searched, persons place and the to be things to be seized. has noted States Court 10.The United Const, U.S. amend. IV. particular does justification seizure for justification necessarily for constitute 7, II, the Colorado Constitu- Article of Walter v. United of the item seized. provides: tion 2395, 649, States, 65 L.Ed.2d 447 U.S. property Security of —searches (1980). 410 people shall be —seizures—warrants. persons, papers, homes secure in their

1217 exception 685 Another to the war- transporting officer while individual home). is requirement recognized rant items While goal assuring his of plain safety view in admittedly the course of an officer is important, the search; however, permissible emphasis legislative otherwise on the noncriminal na is only where there cause to be- ture of the contact between government are private lieve items associated crimi- those with officials and protec citizens civil is a settings nal further search of the items requires tive that in such —Hicks, permissible. Arizona settings v. U.S. the individual’s privacy interest -, 1149, S.Ct. 94 L.Ed.2d 347 must be accorded weight maximum de narrowly few and circum- termining these defined reasonableness of con stances, governmental Newman, 216, are interests duct. v. State 292 Or. sufficiently important permit denied, deemed P.2d 143 cert. v. Oregon long Newman, warrantless searches and seizures so S.Ct. personal rights (1982); of privacy as the invasions State v. Perry, those in- are limited furtherance of Or. These features LaFave, See generally protective custody distinguish terests. W. of civil cases 5.2(d) (2d 1987). Seizure ed. involving Search & them from cases searches inci dent to custodial arrests.12 protective custody In civil cases one, governmental this degree such as no interest potential Because of dan locating preserving of a ger evidence sus to an will officer differ in different However, contexts, pected present.11 case-by-case crime factual analysis contemplate the transportation adoption Act does rather than rigid formula persons to There required permissible some various locations. determine the fore, factor to be one considered bal extent of searches in initial against ancing privacy protective custody a detainee’s interest detentions. State legitimate governmental Harlow, needs to interfere 123 N.H. 465 A.2d (1983). However, interest is the the offi it must be noted during involving cer as the such as well detainee even in cases searches incident See, Smith, transportation. stops, e.g., investigative wherein the State (1975)(pat-down personal privacy 112 Ariz. interest suspect significant, search of intoxicated individual not under less an initial protect safety weapons arrest is reasonable to is deemed sufficient to achieve individual); while transporting goal protecting safety. E.g. officer Prouse, Rehmeyer, 349 Pa.Su Commonwealth Delaware v. (1979);

per. (pat-down 502 A.2d 1332 Mincey Arizona, 385, 2408, intoxicated not under U.S. 57 individual 437 98 S.Ct. protect safety 290; arrest is reasonable to of L.Ed.2d United Brignoni- States v. provides privacy immediately 11. that in The Act some circumstances nal arrestee’s interest may case, placed police custody an individual be in protective custody a civil reduced. suspected for criminal conduct as well as for privacy significant. detainee’s interest remains purposes the beneficent 316(4). of the Act. 25-1- Similarly, when initial interference case, placed In this was private party’s conduct is based on reasonable custody only because in of his intoxicated con- cause, suspicion rather than on dition. limited, relatively extent of the initial search is recognizing in that such retains Distinguishable involving from cases expectation E.g., privacy. some reasonable suggesting of civil detainees are searches cases Arizona, 2408, 385, Mincey 437 U.S. v. 98 S.Ct. may personal that extensive searches of effects (1978); 290 United Chad- 57 L.Ed.2d States v. constitutionally in the ab even 1, 2476, wick, 97 S.Ct. L.Ed.2d 538 433 U.S. 53 preserving an interest in See sence of evidence. Belton, 454, 2860, (1977); Brignoni-Ponce, United States v. 422 U.S. v. New York 453 U.S. 101 S.Ct. 2574, (1981); 873, (1975); Terry L.Ed.2d 768 United States v. Robin 45 L.Ed.2d 607 69 95 S.Ct. 218, 467, son, 1, Ohio, 1868, U.S. 414 94 38 L.Ed.2d 427 U.S. 88 S.Ct. 889 S.Ct. v. 392 260, Florida, (1973); v. (1968); 414 U.S. 94 Bischofberger, People v. 660 724 P.2d Gustafson 488, (1973); People S.Ct. 38 L.Ed.2d 456 v. Bis (Colo.1986). (Colo.1986). chofberger, 724 P.2d 660 A crimi- 1218 873,

Ponce, 2574, danger in to himself 422 95 S.Ct. 45 ficer was fear of when U.S. (1975); Ohio, Deputy Labrecque identify could not Terry L.Ed.2d 607 v. U.S. clothing, objects located in the defendant’s 1868, 20 L.Ed.2d 889 It objects his decision to remove the contained therefore, in appear, would that most cases pockets may per- in the coat be deemed a involving private for detention of a citizen pat-down missible extension of the initial purpose placing sole in search, as the court trial concluded. See custody, Donovan, v. 128 N.H. 519 A.2d State weapons fully the scene would satis- (1986) (removal of items from detain- fy the need to assure officer and the pockets policies ee’s is consistent with safety of the individual while simultaneous- dealing protective custody statute with civil weight ly according sufficient to the detain- individuals, of intoxicated because ee’s status as a noncriminal and attendant small, dangerous have contained a ob- personal privacy. Thus the interest dis- However, ject). package once the was con- covery of an item believed be or probable weap- fiscated and identified as a weapon contain a would most circum- on, objectives the limited of the warrant- nothing require more than the iso- stances fully accomplished.14 less search had been of that item at the scene of the lation People justification offered no the detainee’s detention. Once access additional intrusion into the defendant’s denied, any further the item is search of privacy support interest to the warrantless justified the item would to be on some have package. search of the seized In these other basis.13 circumstances, fully supports the record Application principles of these suppressing the trial court’s order the con- the facts of this case leads us to conclude package. tents of the that the trial court did not abuse its discre reasons, foregoing For order of granting tion in the defendant’s motion to the trial court is affirmed. suppress. Deputy Labrecque’s pat- initial weapons down search of the defendant for VOLLACK, J., dissents and make certain that the defendant would ROVIRA, J., joins in the dissent. not harm himself or others while VOLLACK, Justice, dissenting: transported from the scene was reasonable purposes agree majority’s holding the Act and the view with the Although deputy justified conducting attendant circumstances. no of- was search, (after particularly hospital following 13. warrantless stem- taken to auto- one conduct, ming accident, police from noncriminal see Welsh v. mobile officer’s warrantless Wisconsin, 466 U.S. 104 S.Ct. jacket packet person’s pocket search of found in strictly scope L.Ed.2d 732 limited in Nord, unreasonable); United v. States cf. search, justifying circumstances (8th Cir.1978) (items 586 F.2d 1288 found in Louisiana, Thompson 105 S.Ct. v. plain by police view officers summoned to curiam); (1984) (per Mincey L.Ed.2d apartment to assist intoxicated individual are Arizona, v. 98 S.Ct. admissible). Unruh, (1978); People — U.S. -, (Colo.), denied, 370 2894, cert. People suggest po- 14. that the existence of (1986); Reynolds, 90 L.Ed.2d 981 department policies concerning lice searches of Clements, (Colo.1983); People placing pa- them criminal arrestees Roark, (Colo.1983); People defining trol cars is a factor to be considered in (Colo.1982); see also States v. United person a reasonable search of a extent of Presler, (4th Cir.1979) (police en 610 F.2d 1206 person initially placed in the time the civil reasonable, try apartment into to render aid was — Bertine, protective custody. See Colorado thorough apartment search of after individ U.S. -, (1987); L.Ed.2d 107 S.Ct. transported hospital scope ual was exceeded Lafayette, 462 U.S. Illinois v. exigency suspected was not where individual (1983); Opper L.Ed.2d South Dakota v. conduct); State, Shepherd of criminal man, 428 U.S. (warrantless police (Fla.Dist.Ct.App.) So.2d 1349 weight might Whatever be accord person’s person was search of brought wallet after unreasonable), policy, uniformly applied, ed such if no such hospital with bullet wounds denied, (Fla. policy supra was established in this case. See t. So.2d 175 cer 1977); Richards, (Me.1972) State v. 296 A.2d 129 note 3. removing search that included all vent his prosecuted arrested or objects pockets. from the defendant’s coat the commission of any criminal act or However, disagree I majority’s with the conduct not enumerated in subsection holding deputy further that the violated the of this section.

protective custody statute, or the defend- (5) Nothing in this 3 shall be con- rights, ant’s opened constitutional when he strued upon as a limitation of a package identify weap- police officer to make an legal otherwise respectfully on. dissent. arrest, notwithstanding the fact that the person arrested may be intoxicated or majority correctly states that incapacitated by alcohol. purpose and rationale of the Colorado Alco- holism and Intoxication 25-1-316(4), (5), Treatment Act 11 C.R.S. § Alcoholism Act or focus [hereinafter Act] Accordingly, I believe that the majority safety on concern for the protection of goes too in holding far that the statutory individual, investigation rather than language “not an arrest” was intended to allegedly However, criminal conduct. I be- only protect stig- detainee from the lieve that this rationale justify does not record, ma of a criminal arrest but also defendant’s use of the Act as a shield to limits law enforcement from conducting a prevent prosecution legal when a thorough search of the defendant. Even reveals contraband. The issue is one of though protective civil custody under the impression: first what search and seizure Act is purposes not an arrest for charg- apply protective standards custody de- ing reporting act, a criminal I believe tainee under the Alcoholism Act? that once an intoxicated individual has been custody,

taken into principles ap- that ply to search I. and seizure incident to a apply. custodial arrest should CUSTODIAL SEARCH custodial arrest is “a officer’s Because the custody civil stat- person seizure of a purpose for the provisions ute does not contain specifying taking to the station house for how, when, or to what extent searches booking procedures filing and the of crimi- conducted, I appropriate believe the charges.” People nal Bischofberger, analysis protec- is whether the defendant’s (Colo.1986). 662 n. 4 To make a tion from unreasonable intrusion un- legal arresting custodial II, der article section of the Colorado must have cause to believe the Constitution and the fourth amendment of person has committed a criminal offense. the federal constitution was violated here. contrast, Id. law enforcement officers The defendant here had been taken into temporary custody can take of a protective custody pursuant to the Al- under require the Alcoholism Act and coholism expressly and the Act states go approved the detainee to an treatment protective custody into un- “[a] facility, emergency or be detained in an der this section is not an arrest.” 25-1- § facility jail. 25-1-310(1), medical 310(1), (1982). However, 11 C.R.S. I be- C.R.S. The officer can take an indi- language lieve the statute also temporary into vidual under the makes it clear that the decriminalization of “probable Act if the officer has cause” to pur- intoxication the Act has a different party incapac- believe the is “intoxicated or treatment, pose: encourage and to en- clearly dangerous itated alcohol and party sure that a will not suffer the conse- the health and of himself or others.” quences of an arrest record or criminal language Id. Other in the statute calls simply record because he has been taken interpretation this limited of the “not an temporary custody for intoxication. example, arrest” distinction. For However, clearly the Act also states: 25-1-310(6) states that when a person Act, involuntarily fact that a is intoxicated detained under he incapacitated by pre- right

or alcohol challenge shall not must be advised of his to 1220 detention, right every ger, to counsel at law enforcement officers searched the court-appointed

stage, and the defendant incident to a custodial arrest and, search, they opened counsel.1 as a container found the defendant’s shirt interpretation on of the Alco- Based this pocket re- and found contraband. We searches conduct- holism I believe that suppression the trial court’s of this versed custody deten- pursuant ed expressly by holding evidence that the sei- 25-1-310(1) section should be tions under “complied zure of the container’s contents apply standards that analyzed the same recognized Fourth Amendment stan- to a lawful arrest. to searches incident relating dards to a search incident to an arrest.” Id. See also United States v. II. Robinson, INCIDENT TO SEARCH (1973) (custodial search of a ARREST/DETENTION suspect under arrest is a reasonable intru- here taken into Once defendant amendment). sion under the fourth agree majori protective custody, I with the analogous In the of a search situation arresting entitled ty that the officer was arrest, incident to a warrantless test pat-down search for the dis conduct a under our state constitution is whether the covery weapons. “patA or frisk down arresting probable officer had cause to ar limited, weapons very type People Cunning rest the defendant. v. during an protective intrusion authorized ham, 570 P.2d 1086 Colo. investigatory stop the officer has rea when area, adopted In this we have suspect he is son to with whom language of the U.S. Court iii dangerous.” dealing be armed and United States v. Robinson: intrusion “[an] People Savage, 698 P.2d lawful, probable being on a cause] [based (Colo.1985). majority In contrast with the requires search incident to the arrest no opinion, I also that the officer had believe justification.” People v. additional Trau incident to a authority to conduct bert, 322, 326, 608 P.2d Colo. scope custodial arrest. The of such lawful (Colo.1980), remand, 625 appeal on after quite need not a search “is broad ... [and] (Colo.1981). limited to a mere of the arres- Here, requires that a detain- clothing, tee’s outer extend to statute containers, ing opened officer have cause to believe a other closed, danger arrestee is intoxicated and a to him- found on the taking People immediate reach.” self or others before the individual or within his (Colo. protective custody. into While this is not Bischofberger, 1986). searching “may requirement seize and the same cause officer contraband, required for criminal weapons, or other ar believe the examine search, reasonably analysis permit is to a full ticles which the officer believes correct activity pursuant criminal even an individual into tem- to be related to directly porary custody, for the of the de- though articles do not relate these officer, detainee, public. taining itself and the to the offense for which the arrest necessary result is that the officer at 665. In was effected.” Id. Bischofber- felony, approach in the would be a misdemeanor" ordinance 1. This court has taken a similar adult, juvenile express pur- violation committed area of law. One of the if Code, custody';” temporary poses takes the child “into under of the Children’s sections 19-1-101 -11-110, 19-2-101(l)(a), (1986), the best rather than arrest. 8B C.R.S. is to serve juvenile, in be- Search of a incident to his taken interests of the child and to "assist him “temporary custody,” coming responsible productive is controlled member 19-l-102(d), principles apply society.” and seizure 8B C.R.S. same search arrests, B.M.C., against People Colo.App. filing charges criminal adult Rather than offender, exception juvenile prosecution generally with the of con- files searches, 3—101(l)(b). specifically "petition delinquency.” which are addressed sent § 19— grounds in the Children's Code. When an to be- elsewhere officer has Reyes, Colo. lieve that a child has committed "an act which authority thorough here had to conduct a I Because believe that even in the con- protective custody. pat-down search of a detainee in text of a weapons, search for this cause, He had search was not as defined violative the defendant’s rights, constitutional I would also Alcoholism to believe that the defend- reverse on line based this of Colorado danger law. ant was intoxicated and a to him- statutory self or others. Based on this IV. requirement, cause he detained protective custody. the defendant in He INEVITABLE DISCOVERY pat-down then conducted a search for agree I People’s with the assertion that weapons. emptied he When discovery” applies, “inevitable rule jacket, the defendant’s he discovered the calls for admission of the seized contra- paper packet. Suspecting folded that it adopted We have band. the inevitable dis- blade, might contain a razor the officer rule, covery which states that: packet opened the and found contraband. exclusionary compel rule does not [T]he suppression of evidence that

III. prosecution can show would have been inevitably discovered absent the PAT-DOWN SEARCH prosecu- misconduct or mistake: “If the if the officer Even was entitled to by preponderance tion can establish perform pat-down weapons, search for the evidence that the information ulti- during I believe the officer’s actions mately inevitably would have been pat-down justified, and were reasonable un- lawful means ... then the der law. The test is: Colorado deterrence rationale has so little basis that determining

In the evidence should be received.” the reasonableness of a Williams, 431, Nix v. search in the situation where 2501, 2509, 81 L.Ed.2d 377 just is not full blown but rather weapons, search for in- (Colo. People v. Briggs, P.2d (1) quiry is a dual one: was officer’s 1985) (emphasis added). We have clarified justified inception, action at its discovery by stating the inevitable rule reasonably was the search related in “the central focus should on be what inves scope justi- to the circumstances which tigatory necessarily inevitably measures place? fied the interference the first People would have been taken.” Quintero, (Colo.1983) 657 P.2d 224, 226, People Burley, 185 Colo. (evidence held not under admissible inev Casias, People discovery itable rule because the record we found no violation had constitutional independent hint “lacks even a of an route” package when a tin-foil occurred was the evidence could which have been pocket pursu- from the seized Id.) constitutionally obtained. court began ant to what as a attempted applica appeals has to limit protection for the of the officer. evidence, tion of the rule to derivative 66, 75, 77, 926, 932, 193 Colo. 563 P.2d evidence, distinguished primary from facts, held Based on the we Schoondermark, People v. package not unrea- the search (Colo.App.1985), granted we certio- 563 P.2d at 935. sonable. Id. See (cert. rari on this issue in Schoondermark Burley, 185 Colo. also 7, 1986). April granted, Based on current (1974) (officer’s flashlight use of law, I here Colorado believe contraband part of defendant’s car in search to scan discovery is admissible under the inevitable weapon held reasonable because “the rule. reasonably scope of the search was related majority, in footnote concludes fear officers’ justify application does not weapon have a concealed beneath that the record disagree, on the testi- the car seat.” Id. at 523 P.2d at 982 of this rule. based added)). mony center director (emphasis detoxification admitted, per- practically applied that when a detainee is that can be or effective- “ clothing personal possessions ly single son’s are reviewed. familiar stan- ‘[A] thoroughly guide officers, searched for police contraband as well dard is essential to weapons, in presence as of the expertise who have limited time and pieces officer. Containers and folded balance the reflect on and social and indi- paper like the one in the specific found interests involved in the cir- vidual ” pocket opened they here would have been cumstances confront.’ New York v. center, Belton, 454, 458, necessarily detoxification and it fol- lows that the then have contraband would 69 L.Ed.2d 768 objected If been discovered. the detainee center, by personnel

to the search at the V. upon then the officer would be called UNIFORM ALCOHOLISM AND INTOXI- perform thorough search of the detain- TREATMENT CATION ACT ee. I do that the cases from not believe other record, testimony Based on this from the jurisdictions adopted which have the Uni- the fact that the officer found the contra- form Alcoholism and Intoxication Treat- searching band while the defendant at the ment Act mandate the result reached stop scene of the rather than after trans- majority. While twelve states have porting him to the center does not invali- adopted similar or identical versions if date search. Even the search was Act,2 few have addressed this issue. unlawful, the have been contraband would during Hampshire in- shortly Supreme up thereafter The New Court ventory facility, search at the so the inev- held admission into evidence of contra discovery applies. during protective custody rule band seized itable party. search of an intoxicated The court Finally, I dissent for reasons stated legitimately held that “the acted Court in United States Colo- searching pockets the defendant’s because police regula- rado v. Bertine: “reasonable they object could contained a small have relating inventory procedures tions ad- dangerous substance to the officers or to good satisfy ministered in faith the Fourth himself. Thus the removal Amendment, though even courts as bag plastic consistent with the hindsight a matter of be able to devise policies protective custody statute.” equally requiring reasonable rules a differ- Donovan, 702, 705, State v. 128 N.H. — Bertine, procedure.” ent Colorado doing, A.2d In so the court -, 738, 742, distinguished holding in its earlier State v. the distinction set believe Harlow, where it held that search of the impractical. majority forth detainee’s wallet did violate the majority concludes that the initial custody statute. The court had held in permissible search was and that removal of necessary, Harlow that be “[i]t objects from the defendant’s coat cases, some to determine whether a con pat- permissible was a extension of the object might injure tainer holds some which However, majority down. then creates 547, 552, someone,” 123 N.H. 465 A.2d illogical; say a test that I feel is it seems to 1210, 1213(1983),and relied on this distinc package ap- if a confiscated marijuana tion as as the fact that the well weapon, pears the officer pocket in Donovan’s was stored a trans make and refrain at that must a distinction parent bag. investigation. The re- point from further distinction, majority sup- quired identify Perry confiscated cites State v. packages being probable weapons port of its statement the Act alone —or provide justification for probable weapons not a standard does not a criminal —is Dakota, following adopted Washington and Wisconsin. Maine 2. The states have versions of Alaska, Delaware, Illinois, Georgia, repealed the Act: Iowa, adopted also it in 1981. Island, Kansas, Montana, Rhode South custodial absent cause. In Perry, Oregon Supreme

State v. Court KNIGHT, Plaintiff-Appellee, Warren A. held that the Act alone support does not search, but was careful to render a narrow decision, specific based on the facts de- COMPANY, The DEVONSHIRE tailed the case. The court said: “[i]t corporation, Colorado important precise to be about the exact Defendant-Appellant. presents. situation that this case It con- No. 84CA0463. propriety police cerns the opening inventory purposes luggage belonging to Appeals, Colorado Court of being who is held solely for detox- Div. II. ification. ... state does not claim the had cause or reasonable Sept. 1986. suspicion that defendant had committed a Rehearing Denied Nov. 1986. crime.... lacked cause or suspicion Certiorari (Knight) May Denied crime, suitcases contained evidence aof weapons.” contraband or 298 Or. added). (emphasis

Another majority case cited State, (Alaska 1975).

Peter v. holding

That also turned on the

facts, which involved information obtained from an prior informant found in allegedly

intoxicated state and detained. The Alaska that, Court held under the Uni- “may

form duty have had a

to take him protective custody”

went on to hold that: officer transporting inca-

[a]n

pacitated by drink has a valid reason to

make a possible weap- limited search for

ons which injure be used to him.

Accordingly, items as a result of such a search

[the officer]

made transporting defend- [the jail product were not the of an

ant]

illegal search. added). (emphasis

Id. at 1272 The court

suppressed during evidence seized a more

detailed search conducted when defend- jailed.

ant was at 1272-73. Id. above,

Based on analysis respect-

fully dissent majority’s holding. from the ROVIRA,

I am authorized to state that

J., joins in this dissent.

Case Details

Case Name: People v. Dandrea

Court Name: Supreme Court of Colorado

Date Published: May 26, 1987

Citation: 736 P.2d 1211

Docket Number: 86SA98

Court Abbreviation: Colo.