Opinion
Rehearing Denied Nov. 20, 1975.
Page 1303
J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., Brooke Wunnicke Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellee.
Anthony F. Renzo, Denver, for defendant-appellant.
SILVERSTEIN, Chief Judge.
Willie C. Young appeals his conviction of possession of narcotic drugs in violation of C.R.S.1963, 48--5--2 (s 12--22--302, C.R.S.1973). He asserts that the trial court erred in denying his motion to suppress evidence seized during the execution of an admittedly valid search warrant. We affirm.
The warrant authorized a search for 'Heroin, opium derivatives, and other implements used in the traffic of narcotics . . . and articles of personal property tending to establish the identity of persons in control of the premises.' The warrant was executed by Denver police officers who discovered and seized 65 balloons of heroin and three loaded guns in defendant's bedroom shortly after the search began. Thereafter the officers continued to search the rest of defendant's apartment, and found and seized plastic bags of brown powder and white powder, which contained lactose, and papers showing the name and address of the defendant.
The officers also seized the following items which defendant claims were outside the scope of the warrant, namely: $113 in cash, a movie projector, a tape recorder, and an adding machine. Defendant filed a pretrial motion to suppress all of the items seized on the ground that the taking of the disputed articles rendered the search a general exploratory search, and therefore invalid under the Fourth and Fourteenth Amendments.
At the hearing on the motion, Officer Thompson testified that defendant stated that the disputed articles were acquired 'on the street,' and therefore the officer believed the articles might have been stolen. The motion was denied on the ground that the disputed articles, 'may, according to the testimony of Officer Thompson, be involved in the unlawful conduct of this defendant.' Also, the district attorney stated that the disputed articles would not be offered at trial and offered to return them to the defendant, and at trial, which was to the court, the disputed articles were not offered as evidence.
Defendant renewed his motion to suppress during the trial and again in his motion for a new trial. Both motions were denied. Defendant reiterates his contention on appeal.
'The rule against general exploratory searches . . . is designed to prevent indiscriminate searches and seizures that invade privacy.' People v. Tucci, 179 Colo. 373, 500 P.2d 815.
However, as was stated in Tucci: 'The entire search would only seem to become invalid if its general tenor was that of an exploratory search for evidence not specifically related to the search warrant.' Such is not the case here. The disputed articles were discovered during a bona fide, and successful, search for items listed in the warrant. Hence, we agree with the trial court that the search was a valid search.
The trial court found that the disputed articles were not related to narcotics and were not plain view articles. Thus they could have been suppressed had they been offered in evidence. People v. LaRocco, 178 Colo. 196, 496 P.2d 314. However, where items unspecified in the warrant are seized in a valid search, the fact that they are not admissible in evidence does not require suppression of property seized in accordance with the warrant. People v. Greathouse, 173 Colo. 103, 476 P.2d 259. See People v. Tucci, supra; and People v. Henry, 173 Colo. 523, 482 P.2d 357.
Judgment affirmed.
PIERCE and STERNBERG, JJ., concur.