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People v. Gee8/30/2001
JUDGMENT AFFIRMED
Taubman and Kapelke, JJ., concur
Defendant, David Thomas Gee, appeals the judgment of conviction entered after a trial to the court finding him guilty of possession of marijuana with intent to distribute and possession of more than eight ounces of marijuana. We affirm.
A Colorado State Patrol (CSP) officer stopped defendant's pickup truck for speeding. Based on his observation and contact with defendant, the officer arrested defendant for driving while ability impaired and placed him in the patrol car.
The officer then called for another CSP officer to assist him and for a tow truck to tow defendant's pickup truck. He did not offer defendant the option of leaving the truck by the side of the road.
The officer conducted a search of the pickup truck's cab incident to the arrest of defendant. Although he had smelled the odor of raw marijuana when he stopped defendant, he did not find marijuana in the cab.
After the other officer and a trainee arrived, but before the tow truck arrived, an inventory search of the truck was conducted. In the bed of the pickup truck was an attached, slide-in toolbox that was locked. The officer took the key to the box from the keys in the truck's ignition and opened the toolbox. Inside the toolbox were, among other items, a tin container and a cardboard box. The tin container held a small amount of marijuana, and inside the cardboard box was a plastic bag containing a brick of marijuana that weighed nearly ten pounds.
Defendant was charged with driving while ability impaired, possession of more than eight ounces of marijuana, and possession of marijuana with intent to distribute.
Defendant filed a motion to suppress the evidence seized during the search of the pickup truck, arguing that the search was unlawful and violated his federal and state constitutional rights. Following a hearing, the court denied the motion in a written order.
I.
Defendant contends that the trial court erred in denying his motion to suppress evidence discovered during the inventory search of his truck after he had been arrested for driving while ability impaired. Specifically, he argues that the search violated the United States and Colorado Constitutions because the inventory search was a pretext for an investigatory search without a warrant, the discretion afforded the officers by the CSP manual was unbridled, and the officers violated the procedures set forth in the CSP manual. We disagree.
Warrantless searches as well as searches conducted pursuant to a warrant must be reasonable to satisfy constitutional requirements. A warrantless search and any resulting seizure are presumed unreasonable unless the search falls within certain recognized exceptions to the warrant requirement. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); People v. Hauseman, 900 P.2d 74 (Colo. 1995).
One such exception is an inventory search of a vehicle lawfully impounded by law enforcement officials if conducted pursuant to routine administrative procedures. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); People v. Hauseman, supra. However, the fact that officers may have conducted an inventory search in accordance with procedures does not, of itself, necessarily mean that the inventory search was reasonable. People v. Hauseman, supra.
A.
Defendant first contends that the inventory search was a pretext for an investigatory search for evidence of a crime. He argues that, because the first officer smelled the odor of raw marijuana, the officers were searching for marijuana and
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