People v. Whisler

LOHR, Justice,

specially concurring:

The majority holds that the defendant, Steven Whisler, lacks standing to contest the seizure of a sawed-off shotgun from a locked suitcase found in an apartment in which Whisler and Janice Anderson lived. Although I agree that Whisler lacked standing under the facts of this case, I write separately to emphasize what I perceive to be the limited circumstances that justify the conclusion reached by the majority.

The only evidence available to this court is that which was introduced at the hearing on Whisler’s motion to suppress. That evidence demonstrated that Anderson rented an apartment in Canon City and that Whis-ler frequently stayed at the apartment with her. Whisler had keys to the apartment so that he could come and go as he pleased, and he had full use of the furnishings and appliances in the apartment. Thus, the evidence supports the trial court’s finding that Whisler had a reasonable expectation of privacy in the apartment.

Because Whisler had a reasonable expectation of privacy in the apartment, he had the right to challenge the validity under the Fourth Amendment of a search of the apartment. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). However, Anderson gave her consent to a limited search of the apartment, which, as a co-occupant of the premises, she had the authority to do. People v. Savage, 630 P.2d 1070, 1073-74 (Colo.1981). Therefore, Whisler cannot complain of the police officers’ actions in entering the apartment and in conducting a search therein up to the point at which they requested the keys to Anderson’s locked suitcase. The ensuing search of the suitcase, as the trial court found, exceeded the scope of Anderson’s consent.

The majority further concludes, however, that Whisler cannot complain of the officers’ actions in searching the suitcase. I agree with this conclusion for two reasons. First, the uncontroverted testimony of Anderson and Whisler was that the suitcase belonged only to Anderson, that she alone had a key, and that she had never allowed Whisler to use the suitcase. Second, and of equal importance, the police officers’ entry into the apartment itself was proper because Anderson had consented to it. Under these circumstances, Whisler cannot claim a legitimate expectation of privacy in the contents of the suitcase. My conclusion would be different, however, if it appeared that the entry into the apartment was in violation of Whisler’s Fourth Amendment rights. I reject any intimation that Whisler would lack standing to object to the search of a container that was found *651pursuant to an illegal search of premises, even if that container were personal to another inhabitant of the premises.

Furthermore, I do not read Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 638 (1980), as being “strikingly similar” to the present case. In Rawlings, the defendant and several other persons were guests in the home of another person and were detained there while the police obtained a warrant to search the home. The police asked one of the detained women to empty the contents of her purse, which she had beside her on the couch. When she did so, she revealed an assortment of illegal drugs that had been placed in her purse by the defendant moments before the arrival of the police officers. The Court held that the defendant had no reasonable expectation of privacy in the woman’s purse. Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561. I think that the present case presents a much closer question than did Rawlings. Whisler and Anderson lived in the apartment and shared its contents. A suitcase, like the other contents of an apartment, is not as easily identifiable as being exclusively under the domain of a particular occupant as was the purse under the circumstances presented in Rawlings.

I concur in the ruling of the majority.

I am authorized to say that QUINN, C.J., and DUBOFSKY, J., join in this special concurrence.