LA NECESIDAD DE AUXILIO ESPIRITUAL: ACTUA CIONES DEL DUCADO DE OSUNA Y DEL OBISPADO

A. STANDING

Peoplev. Brown, __P.3d__, 2010WL 1491643 (Colo.App. April 15, 2010)

The defendant had no reasonable expectation of privacy in his brother's trailer home, where:

 As a standard parole condition, the defendant's brother had consented to parole officers' searching his residence and any premises he controlled.

 The defendant knew that (1) his brother was on parole; (2) the residence could be searched at any time; (3) the brother was required to have permission to live with others; and (4) the brother did not have permission for defendant to live there.

 The defendant was himself a fugitive from justice who had absconded after revocation of his probation.

Perez v. People, 231 P.3d 957(Colo. 2010)

Police arrested Defendant who had been driving a car. The arrest was for an outstanding warrant. Defendant was removed from the car, handcuffed and placed in the back of a patrol car. During a search incident to arrest of the passenger compartment of the car, the police recovered drugs from the glove compartment. Defendant lost his suppression hearing, trial and appeal. A couple years later, the U.S. Supreme court decided Arizona v. Gant.

The SC holds that because Defendant was secured in a police car and could not access his car, and because there was no reason to believe that evidence of the offense of arrest (the outstanding warrant) was present in the vehicle, there was no justification under Gant to search the car. The good faith exception does not apply, consistent with People v. McCarty. Even where a defendant disclaimed any possessory interest in the glove compartment, his possessory interest in the car prevents the police from entering the car to search the glove compartment. Defendant, although not the owner of the car, had a possessory interest because he had permission to use the car; thus, he had standing.

Due to Defendant’s presence at the search, the resulting confession is inadmissible.

B. WARRANTLESS SEARCHES

1. EXIGENT CIRCUMSTANCES

People v. Chavez, 240P.3d 448 (Colo. Feb. 18, 2010)

In domestic violence cases, the distinction between the doctrines of exigent circumstances and the emergency aid exception collapse because the same facts that give rise to the exigency also provide probable cause to suspect a crime. Deference to officers is particularly warranted in domestic disputes because the signs of danger may be masked by a battered victim's fear or dependence. Here, the warrantless entry into the home shared by defendant, his girlfriend, and her two children was justified by the totality of the circumstances, including that: 1) after running

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to a neighbor's home, the daughter called 911 to report that her mother and defendant were involved in a physical altercation; 2) the report included that weapons were in the house; 3) police arrived within minutes of the 911 call to find the house dark; 4) police's repeated pounding on the front door met with no response; and 5) an officer went to the back of the house and saw the door ajar.

2. CONSENT SEARCHES- SCOPE OF CONSENT

People v. Minor, 222P.3d 952 (Colo. 2010)

General consent to search a vehicle extends to all objectively reasonable places in which the implied object of the search may be found. This includes closed containers so long as no forcible destruction of property is necessary to access any contents. The driver in control of a vehicle has the power to consent to a search of the vehicle even if he is not the registered owner and the registered owner is present at the time.

People v. Collins, __ P.3d__, 2010 WL 547623 (Colo. App. 2010)

The voluntariness of a consent to search is a question of fact to be determined by the trial court. The reviewing court must defer to the trial court's findings of fact unless those findings are clearly erroneous or find no support in the record. Here: Under the totality of the circumstances, the defendant's consent to provide a DNA sample was not rendered involuntary merely because the authorities did not expressly inform him that his DNA sample might be used to implicate him in other crimes

3. VEHICLE SEARCHES/INCIDENT TO ARREST/GANT

Perez v. People, 231 P.3d 957 (Colo. 2010) [see also People v. McCarty, 229 P.3d 1041, (Colo.

2010); People v. Chamberlain, 229P.3d 1054, (Colo. 2010)]

There are two scenarios in which police officers may search a vehicle's passenger compartment after arresting an occupant:

• an officer may search the vehicle if the arrested occupant is unsecured and can access the interior of the vehicle; and an officer may conduct a search if it is reasonable to believe (not the mere possibility as in McCarty and Chamberlain) that evidence of the offense of arrest might be found in the vehicle. Such a belief exists when there is a degree of articulable suspicion commensurate with that deemed sufficient for limited intrusions like investigatory stops. Here, police did not have a reasonable belief that evidence of the offense of arrest might be found in the vehicle, as defendant was arrested on an outstanding warrant that had no connection to the vehicle, and the charge underlying the warrant was not named in the record.

Although the search was lawful under precedent controlling at the time search was conducted, the court did not allow the good faith exception.

Defendant bought a ―pot pipe‖ from an ―import store.‖ Police were surveilling the store and followed Defendant who committed a traffic infraction and was contacted by police. Defendant admitted buying a ―pot pipe,‖ which had not been used, from the store, and turned it over to police. Police then searched his car (it appears he was not under arrest during the search but was speaking with another officer away from his car), where drugs were found. The trial court ordered suppression of the drugs, but denied suppression of the pipe.

The SC affirmed and holds an unused glass pipe found on the arrestee’s person was insufficient to provide a reasonable belief that more evidence of possession of drug paraphernalia would be found in the car. The SC finds the officers could have arrested Defendant but that a search incident to arrest would not be justified. The SC also holds that the automobile exception to the warrant requirement did not apply because the officers lacked reasonable suspicion that the vehicle contained evidence of drug paraphernalia.

The prosecution argued the good faith exception, and this issue is the real focus of this case. The SC holds the good faith exception does not apply to pre-Gant searches. The SC analyzed ―new constitutional rulings‖ and whether such ruling should be applied ―retroactively.‖ Gant itself did not address the retroactive application or good-faith exception issues. The SC concludes it should not expand the good-faith exception beyond the limits that have been previously set by the U.S. SC in its case law (see U.S. v. Leon, Massachusetts v. Sheppard, Arizona v. Evans, Hudson v. Michigan, Herring v. U.S., Michigan DeFillipo and Illinois v. Krull).

People v. Chamberlain, 229 P.3d 1054 (Colo. May 10, 2010)

Defendant was contacted for minor traffic violation. She advised the officer that the address on her license had changed about three weeks earlier. The officer called another officer who had ticketed Defendant two weeks earlier and he learned she had given that officer her old address. She was not living at the old address two weeks earlier, so the present officer arrested Defendant for false reporting to the prior officer. A search incident to her arrest revealed drugs and

paraphernalia. The trial court initially denied the suppression motion, then reconsidered after

Arizona v. Gant was issued. This case is an interlocutory appeal.

The SC holds that officers lacked a reasonable belief to search the car incident to arrest when Defendant was arrested for false reporting her place of residence. There must be ―some degree of articulable suspicion‖ to merit belief that evidence of the crime on which Defendant was arrested will be found inside the vehicle. Probable cause is not required, but suspicion commensurate with investigatory stops is required. The SC seems to be saying at least reasonable suspicion is required, and maybe a little more, but not probable cause. The SC dances all around ―reasonable suspicion‖ without committing to this standard because the Gant Court did the same thing.

4. VEHICLE SEARCHES –IMPOUND / SEIZURE

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Defendant allegedly sold drugs to an informant. The police followed Defendant, contacted him, and allowed him to leave without arrest or summons. Over the course of a couple weeks, police saw the vehicle with two different registration tags. Officers contacted Defendant in his vehicle for traffic violations. He was arrested and placed in the backseat of the patrol car. Officers determined Defendant’s car needed to be taken into custody and towed because it was blocking a lane of traffic on a busy avenue and no one was available to take possession of the car. This was per Aurora Police Department policy. The police conducted an inventory search prior to the tow and followed procedure. Defendant’s motion to suppress was denied based on the search incident to arrest exception. He was convicted, lost on appeal, then Arizona v. Gant came out. The SC avoided addressing the Gant search incident to arrest issue because it found that the police conducted a proper inventory search of the vehicle. Good analysis of inventory search law. Therefore, the inventory search exception applies to the warrant requirement and there is no need for further analysis. However, the court reiterates ―we can no longer rely‖ on pre-Gant determinations concerning the search incident to arrest exception.

5. SEARCHES OF PROBATIONERS

People v. Samuels, 228 P.3d 229 (Colo. App. 2009) cert. denied, 2010 WL 1267362 (Colo.

2010)

The Court of Appeals for the first time addresses the issue of whether Colorado, in the absence of a statute specifically allowing it, authorizes warrantless searches of probationer's homes. The court finds that a probationer has a lesser expectation of privacy such that a probation officer may search a probationer's home without a warrant if the officer has a reasonable suspicion to believe that the probationer violated a condition of his probation and- that evidence of that violation may be found there.

6. STATUTORY SUPPRESSION

People v. Maclaren, __ P.3d __, 2010 WL 3432236 (Colo. App. Sept. 2, 2010)

Defendant was involved in a traffic accident with another vehicle that resulted in a broken wrist to the driver of the other car. Defendant was charged with vehicular assault and DUI. Defendant exhibited signs of alcohol consumption and admitted drinking to the EMT. The officer followed defendant’s ambulance to the hospital, and later requested a hospital phlebotomist to draw two vials of blood from defendant. This request was fulfilled without defendant’s consent and, therefore, was involuntary. The trial court found that the officer had PC to arrest and did not violate defendant’s Fourth Amendment rights, but there was a violation of the express consent statute and, thus, suppressed the evidence and dismissed the charges.

The COA upheld the suppression of evidence, but overruled the dismissal of the case. COA notes that generally suppression is not warranted for statutory violations, unless the statute

expressly provides for suppression. However, courts have broad discretion to suppress evidence as a sanction for improper police conduct in implementing the express consent statute. Because there was no effort by the officer to comply with the express consent statute, the trial court was within its discretion to suppress the evidence, but dismissal was not an appropriate sanction.

People v. Null, 233 P.3d 670 (Colo. 2010)

Where police fail to provide DUI defendant with his chosen implied consent test (blood), the prosecutor must present evidence of extraordinary circumstances justifying that failure or risk suppression of defendant's refusal to take a breath test and, ultimately, dismissal of the DUI charge.

C. SEARCH WARRANTS

1. SUFFICIENCY OF AFFIDAVITS

People v. Scott, 227P.3d 894 (Colo. 2010)

A search warrant was obtained to search a home for multiple dogs. While in the home evidence of dog fighting was observed, and a second warrant was obtained. The second affidavit did not incorporate the first by reference and the trial court suppressed the second warrant as lacking in probable cause. The appellate court reversed, did an analysis of when the four corners doctrine can be extended, and found where the same judge reviewed and issued the two warrants for the same residence on the same day, both warrants should be read together for the purposes of a probable cause analysis. The court disfavors `hypertechnical' requirements as to form which constrain common sense probable cause determinations

People v.Hoffman, __ P.3d__, 2010 WL 1491645 (Colo. App. 2010)

A sheriff's deputy received information from an informant that the defendant was dealing quantities of methamphetamine. The informant said that the defendant stored the methamphetamine in a fake rock that he kept both in and out of his home; that he distributed drugs while driving his green Buick at night; had large quantities of cash; and often had 2-3 ounces of methamphetamine which he often carried in his underwear. The informant identified the defendant from a booking photo. This was all included in the search warrant affidavit. The informant's source of knowledge was not in the affidavit. A month later, the deputy conducted surveillance on the defendant's residence. At around 11 p.m., he observed a man arrive, park, leave his car running, go around to the back of the home and return about 5 to 10 minutes later. The deputy stopped the man's vehicle, arrested him, searched him, and found a quantity of methamphetamine and marijuana. More drugs and paraphernalia were located in the car. The man claimed he had been visiting his brother at the home (brother did live there). A second person was also arrested and found in possession of marijuana and paraphernalia, but nothing was provided to show a nexus to the first arrestee or to the defendant. The affidavit also included information that the defendant had a previous conviction for possession of a schedule II controlled substance from four years earlier, and was in a vehicle recently where

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methamphetamine was found, but he was not charged.

The sworn affidavit was insufficient where: (1) the informant did not state that he bought drugs from the defendant, witnessed any sales of drugs by the defendant, orhad been in the defendant's presence during a sale; (2) the informant did not state that he had been inside the defendant's trailer or had witnessed defendant handling large amounts of either methamphetamine or cash; (3) there was no indication that he previously gave reliable information to the police or made a declaration against his penal interest; or (4) police did not corroborate factors that related to the specific information provided by the informant.

People v. Warner, __P.3d__, 2010 WL 3259882 (Colo. App. Aug 19, 2010)

At a veracity hearing challenging a search warrant affidavit, the court must first determine whether there are erroneous statements in the affidavit; if so, it must decide, by a preponderance of the evidence, whether the source of the error is intentional falsehood or reckless disregard for the truth on the part of the affiant. If either is the case, the false statements must be stricken from the affidavit. An affidavit is sufficient to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit; it is not sufficient in and of itself to resolve that dispute. Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant's personal knowledge will not suffice.

People v. O’Hara III, 240 P.3d 283 (Colo. App. May 13, 2010)

Wiretap application must be authorized by the elected DA or the Attorney General, but he or she is not required to make the actual application for the warrant. Wiretap application has specific provisions that must be strictly adhered to, but the elected DA is not required to personally apply for a wiretap, and he may delegate such application duties to a designated official. Nonetheless, the elected DA must be aware of and give authorization to apply for a wiretap. Case remanded for further hearing on whether the elected DA gave authorization.

People v. Gutierrez, 222 P.3d 925 (Colo. Dec. 14, 2009)

A person has a reasonable expectation of privacy with respect to their income tax returns and supporting documents even when those documents are located at their tax preparer’s business. Any invasion of a person’s 4th

Amendment interests must be justified by specific and articulable facts directed to the person whose interests are to be invaded. Therefore, a search warrant to search a tax preparer’s business must contain facts establishing probable cause with each individual’s tax return that is located at that business to justify the search and seizure of specific individual’s tax records. Here, the affidavit supporting the search warrant did not contain facts establishing probable cause to search and seize Gutierrez’s tax records – it only authorized searching and seizing unspecified tax records found at the business. The officers executing the search relied on a warrant issued by a judge. The supreme court went on to state that the ―good faith‖ exception to the exclusionary rule did not apply because the court found the affidavit was so lacking in indicia of probable cause that official belief in its existence is unreasonable and no reasonably well-trained officer could rely on it.