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People v. Clark12/11/1975
ed in the negative.
The defendant and his brother testified that when the brother opened the door, the officers pushed past him into the interior of the apartment as one officer explained that they were investigating a rape. Once inside, the officers proceeded with their search of the bedroom, and neither the defendant nor his brother consented to the search. While one of the officers was in the bedroom, defendant inquired whether the officers had a search warrant and understood from the officer's response that a warrant was not required. According to the defendant, he raised no further objections because he felt that such would be futile. Both defendant and his brother testified that they did not consent to either entry into the apartment or the subsequent search. There was no direct evidence whether the officers were seeking to determine if any hiking boots owned by either of the occupants were wet or that they were searching for any weapon used in the commission of the offense.
In any event, as a result of the search, the officers seized a pair of hiking boots with a sole similar to that which made the footprints in the snow as well as some denim pants belonging to the defendant. The hiking boots were wet, as were the cuffs of the pants.
On the basis of this discovery, the officers asked if both brothers would accompany them to the station for interrogation. According to the officers, both the defendant and his brother agreed, whereupon they were
handcuffed and transported in separate vehicles to the station. Following interrogation at the station, the officers stated that defendant was placed under arrest.
The court concluded that the search by the officers was justified by "exigent circumstances," namely, that the wetness of the boots was highly probative evidence pertinent to the investigation by the officers and that the "presumption that a search warrant could be obtained before that evidence dissipated would be almost preposterous." Accordingly, the trial court concluded that the warrantless search was permissible and that the hiking boots were admissible in evidence. The propriety of this ruling is the only question before us, since the trial court, by clear implication, determined that neither the defendant nor his brother consented to the search, see People v. Neyra, 189 Colo. 367, 540 P.2d 1077, and trial counsel for defendant conceded at the suppression hearing that the People "had adequate ground for a search warrant," thus removing the issue of probable cause to search.
In some cases a warrantless search of a residence has been judicially approved where it appears to the officers that evidence may be removed or destroyed through the efforts of the suspect or someone acting on his behalf before a warrant can be obtained. See, e.g., United States v. Rubin, 474 F.2d 262 (3rd Cir.); see also People v. Neyra, supra; People v. Duleff, 183 Colo. 213, 515 P.2d 1239; People v. Railey, 178 Colo. 297, 496 P.2d 1047. Defendant's appellate counsel contends, in effect, that the "exigent circumstances" doctrine does not apply because there was no showing that defendant or his brother were in the process of or would have destroyed or removed the boots in question. Alternatively, counsel points out that no evidence was offered to indicate the length of time required to obtain a search warrant in order to demonstrate that the boots would be dry before that time, and that, in any event, the boots were dry when offered as evidence at the trial.
As to the alterna
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