People v. Brewer , 1984 Colo. LEXIS 661 ( 1984 )

ROVIRA, Justice,

concurring in part and dissenting in part:

I dissent from the majority’s holding that the seizure of the marijuana was a violation of the defendant’s rights under the fourth amendment and Article II, section 7, of the Colorado Constitution, and concur in the remainder of the opinion.

The court’s opinion holding that the seizure of the marijuana was illegal rests on an illusory difference between a citizen who takes contraband to the police and a citizen who calls the police and requests them to come into a house, that the citizen has a right to be in, to pick up contraband. It is conceded by the court that if Stieha had taken the marijuana to the police, or if she had called the police, requested them to come to the residence, walked outside the house with the marijuana, and handed it to a policeman, no constitutional violation would have occurred. See United States v. Jacobsen, — U.S. - — , 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

However, according to the majority opinion, a violation of the defendant’s constitutional rights did occur when Stieha “invited the police officers onto the premises” even though she had the right as landlord to enter and inspect the house. Maj. op. at 862. There is no sound reason to distinguish between the police entering the house to pick up the marijuana at Stieha’s request, and accepting the marijuana from her at the police station or on the front porch. Stieha intended to turn the marijuana over to law enforcement authorities. The method she chose should not determine whether a constitutional violation occurred. Therefore, I conclude that there was no illegal search or seizure, and I would reverse the trial court’s order suppressing the marijuana.

Since the marijuana was the only contraband Stieha discovered, this is the only evidence she would have turned over to the police had she chosen to take the evidence to them. Thus, the officer’s seizure of items other than the marijuana was illegal. Therefore, I agree with the majority’s af-firmance of the trial court’s order suppressing the drug-related paraphernalia.