People v. McKinstrey

find that the distinction drawn We appeals underinsured Colorado,

court of between and PEOPLE State coverage contrary uninsured motorist Plaintiff-Appellant, express language of section 10-4- both the existing case law. Sec Colorado McKINSTREY, Steven Defendant- 10-4-609, tion as amended in includes Appellee. coverage underinsured motorist within coverage. motorist definition uninsured No. 92SA374. previously held that the We General Colorado, Court of Assembly intended to treat underinsured En Banc. coverage in manner motorist the same as Kral, coverage. uninsured motorist See June 1993. 759; Terranova, Further, disagree we with the court of that, amending

appeals conclusion

uninsured motorist statute to include sec- 10-4-609(5)(b) (“amount damages

tion

sustained, recovered”), the General

Assembly “manifested the intent to maxim- injured

ize indemnification of an motorist purchases motorist cov-

who underinsured (em-

erage.” Thompson, 835 P.2d at 523 added).

phasis Rather, sections 10-4-

609(5)(a) (b), which must be read to-

gether, apply to both uninsured and under- coverage.

insured motorist State Bd. of Saddoris,

Medical Examiners v. (Colo.1992)(statutes must be construed consistent, harmonious, give

as a whole to parts).

and sensible effect to all their Ac-

cordingly, disagree With the court of

appeals finding underlying legisla- that the policy

tive of underinsured motorist cover-

age differs from that of uninsured motorist

coverage.

We concluded Alliance and Ar-

guello anti-stacking provisions per are

missible in the uninsured motorist context. case, present

In the our review section

10-4-609 and the relevant case law leads

us to conclude anti-stacking provi that an pertaining

sion to underinsured motorist

coverage public policy. does not violate Thompson hold that

We is not entitled to separate

stack the benefits of the six poli judgment

cies. The appeals of the court of

is reversed. during a

suppressing seized war- evidence in search of a cabin located Grand rantless asserts County, Colorado. granting in the district court erred McKinstrey’s motion to Steven Charles suppress the seized in the war- evidence record rantless search. Because the before suggests that the district court did not us consider Illinois (1990), 177, 110 S.Ct. in the warrantless violated the Fourth Amendment Constitution, affirm the United States part, order reverse court part, and remand to district for proceedings further consistent with this opinion.

I 4, 1992, May Officer Mark Husmann' On County Department Sheriff’s Grand unoccupied parked noticed a car at an cabin County. Because Hus- in Grand Officer previously investigated a mann had break- cabin, stopped in at the he to determine burglary being a committed.1 ap- A man came out of the cabin proached Officer Husmann. He identified McKinstery” and said himself as “Steven per- him Gayland given Sanchez mission to use the cabin.2 When Officer McLimans, Atty., Cynthia Paul R. Dist. identification, asked the man for Husmann Kowert, Atty., Sulphur Deputy J. Dist. Hot he said that he had no driver’s license or Springs, plaintiff-appellant. for him, gave on other identification Snow, P.C., Dixon Janiszew- Steven man birth date of June 1958. The ski, Denver, defendant-appellee. that a friend had him to the claimed driven cabin but had left to walk to Grand Lake. Justice ERICKSON delivered Opinion of the Court. Officer Husmann then contacted Frank Drumm, interlocutory appeal nearby from an who lived cabin.

This is an County order District Court Drumm told Husmann that the man Grand Officer power company place padlock keep 1. In no- would December the door and open ticed that the and notified key prevent cabin door was future break-ins. County Department. the Grand Sheriffs Officer investigate. Husmann was sent to the cabin to It is unclear from the record whether Sanchez cabin, Drumm, nearby Frank who lived in a actually possessed any ownership interest in the gave telephone Officer Husmann the number of property. Drumm testified that Sanchez’s Drumm, Gayland According Sanchez. San- mother, eighty-four year old who lives in Cali- partial chez was the son of the owner of a fornia, property partial owned a interest in the property interest in the on which the cabin was on which the cabin was located. Drumm fur- informed Sanchez located. Officer Husmann only ther testified he had seen Sanchez at open that the door was and that the deadbolt during the cabin once the last two or three operational. Sanchez lock on the door was not years. agreed and Officer Husmann that Drumm rantless search constitutionally in a ear at the cabin alone and was a arrived valid computer third-party appeared to be consent search because Drumm unloaded what possessed subsequent- over the equipment. Officer Husmann cab- outstanding ran warrants check on in. ly The check MeKinstery.” revealed “Steven Following pretrial suppression hearing a County in for a active warrants Boulder September 11, 1992, on the district court the same date McKinstrey” with “Steven granted McKinstrey’s suppress, motion to description physical birth and a that of finding that Drumm did Husmann had matched the man Officer to consent to the search of the cabin and spoken

just with at the cabin. that exceptions the other to the constitu- Husmann, accompanied by requirements tional Officer anoth- for a search warrant backup, pro- officer as did not er who had arrived exist. The district court did not the specify ruling to the cabin to arrest man. ceeded whether its the McKinstrey’s calling constitution, After out name and constitution, federal state the receiving response, no officers entered the or both. open front through the cabin the door to The filed an interlocu cursory a for him. The conduct search tory appeal 4.1, pursuant to C.A.R. con approximate- were in the officers cabin tending that the district court in erred con anyone. one ly minute did not see The cluding that the search based on Drumm’s the immediately officers left cabin to dis- consent was unconstitutional. In the ab whether that cuss the individual Officer suppres sence of a clear statement that a spoken at the Husmann had cabin was with ruling grounded on opposed sion state as warrants, same in the the identified law, pre to federal constitutional we will the or evidence of whether individual sume that a court relied on federal in law might cabin, be located the crime and Inman, People v. reaching its decision. phone they needed to Sanchez to 577, (Colo.1988); see also Peo 578 permission the to search cabin. obtain Romero, v. 1225, ple P.2d 767 1226-27 Drumm, who had followed the officers to Gann, People v. (Colo.1989); cabin, key the volunteered that he had a to 1318, Michigan (Colo.1986); v. 1320 cf. partial cabin and

the was a owner of the 1032, 1041, Long, 463 U.S. 3469, S.Ct. response inquiry In from cabin.3 (1983). Thus, L.Ed.2d Husmann, agreed Drumm also Officer interlocutory appeal issue in this sole grant permission to search cabin. The Rodriguez, v. Illinois 497 U.S. went and officers back into cabin sub- (1990), S.Ct. cocaine, sequently marijuana, drug seized requires reversal of the order paraphernalia, bicycle. and stolen under the Fourth Amendment. We affirm McKinstrey charged was later arrested and part, part, reverse in and remand for possession two counts of unlawful with proceedings further consistent with this substance, count of a controlled one unlaw- opinion. possession marijuana, ful and one count theft receiving. II Rodriguez, Supreme McKinstrey suppress filed a motion to In States United evidence, claiming validity the search constitutional that arid Court addressed the subsequent based on the con- seizure of narcotics vio- of a warrantless party. lated the Fourth Amendment to the United of a third Gail sent II, article that Edward Rodri- States Constitution and section 7 Fischer told the apart- her in an guez severely In its re- Colorado Constitution. beaten motion, Chicago, Illinois. sponse McKinstrey’s prose- ment located in Several alia, times, asserted, apartment to the inter cution that the war- Fischer referred as only perma- prior was the Officer that he knew that Drumm 3. Husmann testified that par- property, point he did Drumm was a nent resident on the was the caretaker key not know that However, area, possessed a owner of he stated to the cabin. tial the cabin. Const, IV; amend. and told the officers Const. Colo. art. apartment” “our provisions generally furniture there. She had clothes and These constitutional she apartment with the agreed go prohibit entry person’s warrantless of a Rodriguez. Upon home, arrival at arrest whether to make an arrest or to let the officers apartment, specific Fischer objects. Rodriguez, search for permission to key gave them 2797-98; with her U.S. at 110 S.Ct. at Rodriguez in police arrested Thiret, enter. The (Colo.1984); P.2d drug drugs and apartment and seized Savage, People v. paraphernalia. (Colo.1981); York, Payton see also v. New 573, 100 1371, L.Ed.2d initially found States, (1980); Johnson United U.S. possess common Fischer did not 10, 367, (1948). 63 92 L.Ed. 436 S.Ct. apart- of the validly consent to a search 181-82, at 2797-98. 110 S.Ct. ment. Id. at prohibition against The warrant- proceeded Supreme then to ad- The however, apply, less searches does not argument that the prosecution’s dress voluntary situations in which consent has because the nevertheless was valid obtained, been either from the individual reasonably Fischer had police believed that searched, property whose or from a third authority to consent. Id. at possesses party who 110 at 2798-2802. S.Ct. premises. Rodriguez, over the 497 U.S. at prosecu- interlocutory appeal, In this 181, 2797-98; 110 S.Ct. at United States v. possessed tion contends that Drumm suffi- Matlock, 164, 171, 988, 415 94 U.S. cient common over the cabin 993, (1974); 39 L.Ed.2d 242 Schneckloth v. validly prosecu- to the search. The Bustamonte, 218, 222, 412 U.S. 93 S.Ct. prohibition tion also asserts that 2041, 2045, (1973); People 36 L.Ed.2d 854 against ap- warrantless searches does Drake, 1257, (Colo.1990); 785 P.2d 1265 upon of a ply to searches the consent Berow, 1123, People v. 688 P.2d 1127 police, the time of party whom the (Colo.1984);Thiret, 201; Savage, 685 P.2d at possess entry, believe to com- P.2d at 1073. premises.4 mon over the As Matlock, Supreme the United States argument sep- Rodriguez, we address each Court stated: arately. course, Common is of not to be Ill implied property from the mere interest party property. Fourth Amendment to the Unit that a third has in the The justifies ed States Constitution and article sec The third- upon tion 7 consent does not rest of the Colorado Constitution estab law right property, lish the to be free from unreasonable of with its attendant historical refinements, legal searches and seizures. v. McKin but rests rather 18, (Colo.1993); stry, property by persons 843 P.2d see U.S. on mutual use of the 4. The prosecution standing has not asserted that McKin- to contest search at dant's strey legitimate expectation privacy hearing, objection, prosecu had no of but later withdrew standing argument appeal the cabin and the issue was not raised in the tion’s waived); on was deemed Brown, Accordingly, trial court. we do not address the see also United States v. 1039, (2d 1992); question McKinstrey legiti of whether had a F.2d Cir. United States v. 1331, (7th Cir.1991), expectation privacy Thompson, mate in the cabin. See F.2d 204, 208-11, States, denied, U.S. —, 1177, Steagald v. United 451 U.S. 112 S.Ct. cert. — 1642, 1646-47, (1981) Maestas, (1992); 101 S.Ct. L.Ed.2d 422 United States v. 273, (holding (5th Cir.1991), prosecution precluded that from 941 F.2d 276 n. 2 cert. de — U.S. —, 909, raising legitimate nied, expectation privacy ques 112 S.Ct. 116 L.Ed.2d (1992); Wanless, tion where issue was not raised in lower United States v. 882 F.2d courts); Burola, 958, 1459, (9th Cir.1989); People v. 960 n. 2 1462-63 United States v. (Colo.1993) Garcia, 699, (refusing (2d Cir.), to address of le 701-02 cert. 348, gitimate denied, expectation privacy appeal); Peo 110 S.Ct. 107 L.Ed.2d (Colo.1982) ple Hearty, (1989); Nechy, United States v. (where prosecution (7th 1987). initially objected defen Cir. generally having joint guez, access or control 497 U.S. at 110 S.Ct. at 2799. Court, however, purposes, The for most so that it is reason- refused to recognize “impose upon requirement able to of the co- this element a right permit imposed upon inhabitants has the that we have not other ele- inspection right regularly compel government in his own and that the ments that judgment regarding officials to exercise others have assumed the risk that one of might permit namely, requirement their the facts: number the common judgment only responsible area to searched. their be not correct.” Id. Matlock, at 171 n. U.S. 94 S.Ct. at (citations omitted); 993 n. 7 Savage, 630 opinion explained: The Matlock). (quoting pros- P.2d at 1073 satisfy order the “reasonable- establishing ecution has the burden of com- requirement ness” of the Fourth Amend- authority. mon Rodriguez, 497 U.S. at ment, generally what is demanded 181, 110 S.Ct. at 2797-98. many factual determinations that must us, agree regularly by agents gov- Based on the record before be made of the with the district court that the magistrate ernment —whether the issu- warrant, “joint ing has not established that Drumm had officer execut- ing warrant, purposes” access control for most or the officer con- ducting cabin searched the officers and there- a search or seizure under one of part. exceptions fore affirm the order in require- the warrant However, they always correct, the determination that Drumm ment—is not that possess authority did not they always common over the but that be reasonable. question cabin does not resolve the

whether the warrantless search of the cab- depart We see no reason to from this party the consent of a third general rule with re- [of reasonableness] was unconstitutional. spect bearing upon authority to facts a search. Whether the

IY authority basis for such exists is the sort recurring factual to which A law enforcement officials must be ex- After finding that Fischer did not pected apply judgment; their and all possess validly con requires Fourth Amendment is that apartment sent to a search of the in Rodri they reasonably. answer it The Consti- guez, the addressed tution is no more when officers violated prosecution’s argument that the search ne they enter without a warrant because vertheless was valid because the rea reasonably (though erroneously) believe sonably that believed Fischer had the au person who has consented to thority to Rodriguez consent. concluded their entry premises, is a resident of the exclusionary that while the rule bars the it they than is violated when enter with- admission of evidence seized in violation of they out a reasonably warrant because the Fourth Amendment unless a defendant (though erroneously) they are in believe validly search, consents to a the Fourth pursuit of a is violent felon who about to guarantee Amendment does not that no escape. Mosel, See Archibald v. police searches will occur unless the defen (CA1 1982). F.2d 5 dant consents. Id. at at S.Ct. 185-86, Rodriguez, 497 U.S. at 110 S.Ct. at 2798-99. 2800; Garrison, Maryland see also v.

Instead, provides 79, 86-88, the Fourth 1013, 1017-1018, Amendment U.S. 107 S.Ct. (1987) that “unreasonable” searches (holding will not oc- 94 L.Ed.2d 72 that reason- Const, Id.; cur. U.S. amend. require IV. Rodri- ableness does not factual correct- ness); guez recognized that there are ele- California, various Hill v. 803-05, 1106-1111,

ments that can make a search “reason- 91 S.Ct. — (1971) (same); able”—one is Jimeno, of which consent. Rodri- Florida v. cf. U.S.—, — - —, search). Thus, Rodriguez, S.Ct. under a war- 1803-04, (1991) (holding L.Ed.2d merely rantless. search invalid be- measuring scope of consent is standard for cause of a reasonable mistake of reasonableness). objective that of concerning fact the officers the authori- in- adopting a rule which had been ty party consenting to the search.5 upon by creasingly relied lower courts in However, a warrantless search years upholding third-party recent con- third-party based on up consent cannot be searches, sent held: Rodriguez solely held on the basis As factual with other determinations giving the legally consent believed he was bearing seizure, upon search and deter- empowered to consent. See United States minations of consent to enter must “be Heisman, (8th Cir. judged against objective standard: 1974); LaFave, Wayne R. Search and the facts to the would available officer at 8.3(g), (1987 Seizure at 267 the moment man & 1993 ... ‘warrant a of rea- ” Instead, sonable caution in the belief’ that the Supp.). Rodriguez the test in fo consenting party over the cuses on whether a officer’s belief premises? entry If not then warrantless that a third had the inquiry without further is unlawful un- consent to a objectively search is reason so, authority actually less if exists. But 188-89, able. 497 U.S. at valid. 2801-02; Berow, at accord Rodriguez, 497 U.S. at 110 S.Ct. at 1126-27; see also United States Ro (citations omitted); Berow, accord 688 sario, (7th Cir.1992) (determining only P.2d at 1126-27 that “not (question under is whether the apartment did the officer enter the in re- party “projects an aura of sponse exigent circumstances, he upon which one reasonably rely”); can also relied on the Salinas-Cano, United States v. search”); party] permit to see [a (10th Cir.1992)(stating that Rodri LaFave, Wayne also 3 R. Search and Sei- guez's “analysis subject of this instead 8.3, (1993 Supp.) zure at 62 (concluding § entirely rests on the reasonableness Rodriguez the “eminently result belief”); officer's United States v. Whit sound” because consent searches should field, (D.C.Cir.1991) not police activity constitute a disfavored (stating that “Rodriguez applies thus to and because a reasonable mistake in deter- mining situations in party’s authority a third which an officer would to consent give does not rise to an unreasonable had valid consent to search if the facts 5. Professor LaFave has concluded that the refer- be inadmissible because of an unconstitutional good suggest ence hand, faith is not intended to search and seizure. On the other evi- relationship apparent authority between the pursuant Rodriguez dence that is admitted adopted Rodriguez doctrine that was in and the admissible because the search itself is not un- LaFave, good-faith Wayne Leon rule. See 3 R. constitutional, exception rather than as an 8.3, (1993 Search and at 63 n. 98.3 Seizure exclusionary the rule. While the ultimate result Supp.) (stating apparent authority that “[t]he same, during is the the evidence seized doctrine was well established in lower court satisfied, search is admissible if either rule is Leon, quite properly decisions before which is good-faith analytically the Leon rule is different ”); upon Rodriguez never cited or relied in Com- adopted Rodriguez, from the rule in Quites, monwealth v. 619 A.2d n. case, In this the trial court found that the (Pa.Super.Ct.1993) (recognizing jurisdic- good officers "acted with the utmost faith in rejected good-faith tions that have the Leon rule entering upon property." The trial court's adopted apparent nevertheless have authori- good-faith conclusion that the had a officers ty upholding doctrine in warrantless searches belief that Drumm had to consent consent). third-party based on amply supported to a search of the cabin is in rule, good-faith disputed Under the ever, appeal. the Leon an record and is not officer’s How- good-faith good-faith mistaken an belief in the soundness of a officer’s belief that a third search, justify exception warrant is deemed to has the to consent to a exclusionary alone, exception standing rule. As an to the exclu- is not sufficient under Rodri- rule, sionary permits guez. the Leon rule objective- The officer’s belief also must be the admission of ly evidence that otherwise would reasonable. sup- dence seized from the cabin should be them to as he believed were be”).6 pressed as violative of the Fourth Amend- de- governed Rodriguez, ment is police officers also Under analysis third-party inquiries proper lineated the reasonable when should make ambiguous circum- they find themselves consent searches. At the hear- authority of the third regarding the stances specifically ing, the district court raised search. Rosar- party to consent to the See issue of whether officers’ belief was io, (stating that F.2d at 738 absent Drumm had the reasonable that facts, duty have a “sufficient officers questioned to the search and further information to determine seek the officers’ belief evaluated whether reasonably infer that the they may whether subjectively objectively. necessary authority to con- inviter has the premis- entry to an or search of sent prosecu- The asked the district court first LaFave, es”); Wayne R. Search tion to assume that consent to Drumm’s (1987 8.3(g), at 267 & 1993 Seizure § search was invalid. The district court then F.2d at 1075 Supp.); e.g., Whitfield, 939 if prosecution asked the the officers acted questioning mother did not dis- (police resi- on Drumm’s and entered the support information to close sufficient dence, and it later turned out that no au- belief that she reasonable existed, thority the officers were whether room). 29-year-old son’s permit search of did not “out of luck.” holding that its Rodriguez stressed response Rodriguez mention to the dis- suggest enforcement does not that law question, trict court’s but instead discussed may always accept person’s officers prior Colorado case law. premises. invitation to enter Even when accompanied by an ex- the invitation is us, it does Based on the record before plicit person assertion that lives appear that the district court consid- there, surrounding circumstances ered conceivably could such that a reason- search based on Drumm’s con- warrantless doubt its truth and not able would Fourth Amendment. Be- sent violated the upon inquiry. act it further without apply cause the district court failed to Rod- 188, 110 Rodriguez, 497 U.S. at consid- riguez, reverse and remand for it was eration of

B for the officers to conclude reasonable to a Drumm had the to consent review, foregoing Based on the we con- only address the question clude that the of whether the evi- search of the cabin.7 We question objective that Drumm had the au 6. The reasonableness un the facts of this case question subject thority der is a of law that is to a search of the cabin. to consent Evans, Brokaw, 951, to de novo review. United States v. See Compare United States v. 985 F.2d 1534, (10th Cir.1991); see 1536-37 also (5th Cir.1993) (8th (upholding warrantless 954 Harrison, 469, v. F.2d United States 918 473 objectively reasonable for search because it was 1990) (reasonableness investigatory stop Cir. that the third the officers to believe review); subject question de is a of law novo Hall, consent), authority to and United States v. 446, (5th Tedford, v. F.2d United States 875 448 77, (6th Cir.1992), cert. de 979 F.2d nied, 79-80 Cir.1989) (objective reasonable reliance on a — U.S. —, 1357, L.Ed.2d 113 S.Ct. 122 question subject search warrant is a of law to de Rosario, (1993) (same) and 962 F.2d at 738 736 review). novo (same) Kinney, F.2d and United States v. 953 — (same), denied, 863, (4th Cir.) cert. suppression hearing evidence the 7. The at estab- U.S.—, 2976, (1992) L.Ed.2d 112 S.Ct. 119 595 lished that Officer Husmann knew that Drumm 519, v. and United States premises, only was the caretaker of the was the (7th Cir.1989) (same) and United States v. 523 permanent property, pos- resident on the and 1522, (9th Cir.) Yarbrough, F.2d 852 denied, 1534 key padlock sessed the testimony to the on the cabin. The 171, 866, (same), 109 S.Ct. cert. suggest does not reason for the Salinas-Cano, (1988) with 959 officers to doubt Drumm’s statement that he remand, (rejecting prosecution's claim F.2d at 865-66 partial was a owner of the cabin. On authority exception applied) apparent and the district court must determine whether it was Whitfield, (finding that offi- reasonable for the officers to conclude under F.2d at 1074-75 939 requires unconstitutional search or issue of whether it was seizure Fourth Amendment (1) two-step inquiry: a the whether intru- for the officers conclude that reasonable search; (2) sion if the was a intrusion the to consent to a Drumm had search, amounts the cabin, to a intrusion not reach search and do the of the Hillman, People reasonable. v. same under the Colorado Constitu- issue 1271, (Colo.1992). P.2d relating remaining to the tion. The issues require analysis search resolution do whether an intrusion is a in this case. II, article search under section we have diverged

occasionally from the United .V Supreme States Court. See v. Oates, (Colo.1985);People Accordingly, we affirm the Sporleder, (Colo.1983); 666 P.2d 135 part, part, order in reverse in remand DiGiacomo, Colo. Charnes v. proceedings court for further district (1980). Hillman, P.2d 1117 But see opinion. this consistent with repeatedly my P.2d 1271. I have noted disagreement development with the of dif C.J., ROVIRA, specially concurs. See, ferent e.g., standards this area. specially Chief Justice ROVIRA Oates, J., (Rovira, dissenting); concurring: (Rovira, J., Sporleder, dis However, senting). the before us a majority concludes that “warrant- search, is not the a merely intrusion was less is not invalid because of search whether, assuming the intrusion was a by a of fact reasonable mistake search, Clearly, it was concerning reasonable. the officers of the standard of a party consenting Op. reasonableness to the search.” search is tested is the same under the majority opinion Because is a Fourth Amendment and the Con interpretation Colorado correct of federal constitu- stitution. law, join analysis tional I in its and conclu- separately only express my sion. I write In interpreting the reasonableness re- analysis belief that under article quirement Fourth Amendment the section Colorado Constitution is Supreme explained in Rodriguez that required by identical to federal consti- interpreted by tutional as law United satisfy in order to the “reasonableness” States Court in Illinois Rodri- requirement Amendment, of the Fourth guez, 497 U.S. 110 S.Ct. generally many what is of the demanded (1990).1 Thus, L.Ed.2d warrantless regu- factual determinations that must the consent of a third larly govern- agents be made police reasonably whom believe magistrate issuing ment—whether has to consent the search warrant, executing officer not “unreasonable” under the Colorado warrant, conducting or the officer Constitution. a search seizure one of or under exceptions requirement— to the warrant

I correct, they always not that they always be reasonable. II, Article section of the Colorado Con- stitution, like the 185-86, Fourth Amendment to 497 U.S. at S.Ct. at Constitution, prohibits United States 2800. The party consent an interested “unreasonable searches and seizures.” renders a search “reasonable” under article II, II, Our jurisprudence under article section section person whether that is the searched, whether an property intrusion individual whose see into an privacy Drake, (Colo. individual’s People amounts to an II, cers not upon by could believed have 1. Article section was relied suppress search). defendant in his motion to court. See in the trial Op. at 469. cerning consenting 1984), possesses authority over of the party.... premises, Savage, see (Colo.1981). Although P.2d apparent is no reason to ... [TJhere “joint access or con searches, Drumm did have disfavor consent for—whether cabin, and thus was unable to making trol” of the or not there would be a basis for the search under give pursuant valid consent to Sav the search later to a warrant— may he age, important at such searches are both an in- ‘necessary appearance vestigative by “possessed the tool and a useful means ’ (both innocent) persons guilty to the search.” ... to consent 1123,1127 (Colo. Berow, beneficially coopera- can People v. manifest their 1984). investigation suspected tion with into activity. criminal Berow, although held the LaFave, Wayne R. Search and Seizure exigent circum- by was warranted issue (1993 Supp.). 8.3 at 62 stances, recognized we also that the rea- 7, requires Article section that a reliance on the of a third sonable “reasonable,” judg- search be not that the to validate a war- party could be sufficient concerning ment of the officer be correct 1126-27. rantless search. Id. at Such gives who con- eminently sound. In the conclusion is sent. words of one commentator: making accepted it is

[I]f occupy

searches consent should not hierarchy status in the

second-class practices, certainly

law enforcement then undone rea-

the search should not be con-

sonable mistakes of fact

Case Details

Case Name: People v. McKinstrey

Court Name: Supreme Court of Colorado

Date Published: Jun 7, 1993

Citation: 852 P.2d 467

Docket Number: 92SA374

Court Abbreviation: Colo.