Summary
holding — incorrectly in my opinion — that consent was voluntary where police used extrinsic fabrication to gain admittance to defendant's apartment
Summary of this case from Wyche v. StateOpinion
No. 94CA0388
Decided June 27, 1996 Petition for Rehearing DENIED August 1, 1996. Opinion Modified, and as Modified, Petition for Rehearing DENIED December 12, 1996. Petition for Writ of Certiorari DENIED. July 21, 1997.
Appeal from the District Court of Boulder County, Honorable Richard C. McLean, Judge, No. 93CR505.
JUDGMENT AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Mark Zamora, appeals the judgment of conviction, entered upon a jury verdict, for second degree kidnapping and sexual assault on a child. We affirm.
On May 4, 1993, the thirteen-year-old victim was walking to school when a man drove by, stopped his car in front of her, grabbed her by the jacket, and pulled her into his car. The man took the victim to his apartment, where he sexually assaulted her. He then dropped the victim off at her school, after warning her not to tell anyone about what had happened.
When the victim got home from school, she reported the assault to her mother who immediately called police. In addition to giving a general description of her attacker, the victim remembered the location of the apartment complex where she had been taken, the apartment's layout, its messy appearance, and the presence of an unfilled waterbed frame in the bedroom.
Police investigation soon ruled out all but defendant's apartment. Defendant was not home, so the police waited, and after he returned with his girlfriend, they knocked on the door.
Defendant answered and the officers noted that he did not match the victim's description very well. Defendant exited the apartment, closing the door behind him, and initially refused the officers' request to go inside and talk. Defendant later testified that he had just taken out some marijuana with his girlfriend which he did not want the officers to see, but at the time he simply told the police his apartment was too messy for company.
The officers ostensibly honored defendant's refusal, but then employed a ruse. They assured defendant that they would ignore the messiness of his apartment, but that they just wanted a "quick look" at the layout of the apartment to aid in their investigation of a domestic dispute at an adjacent apartment.
Once defendant felt that his girlfriend had had enough time to hide the marijuana, he agreed to let the officers in. After entering, the officers noted that the apartment's layout matched the victim's description. They also saw the empty waterbed frame in the bedroom through the open bedroom door. After leaving, the officers prepared a photographic lineup from which the victim positively identified defendant. They then obtained a search warrant and arrested defendant.
At trial, defendant admitted to having sex with the victim but claimed that it was consensual. The jury found him guilty of sexual assault on a child and kidnapping.
I.
Defendant first asserts that his consent to the entry of his apartment was invalid because it was obtained through deception, and, therefore, that any evidence resulting from the search should have been suppressed. We disagree.
Police may enter a home to conduct a warrantless search when the person in possession voluntarily consents to the search. The suspect need not be informed of his right to refuse the search although such knowledge should be considered in evaluating the voluntariness of the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The prosecution has the burden of proving voluntariness by clear and convincing evidence. People v. Carlson, 677 P.2d 310 (Colo. 1984). Voluntariness is a question of fact to be decided by the trial court, and will be upheld on appeal unless clearly erroneous. People v. Drake, 785 P.2d 1257 (Colo. 1990).
In determining consent, trial courts must look at the totality of the circumstances surrounding the voluntariness of the consent. People v. Thiret, 685 P.2d 193 (Colo. 1984). Factors to consider include: the age, education and intelligence of the person consenting to the search; the duration, location and other circumstances of the search; and the consenting person's state of mind.
Consent may be voluntary even when the person is not aware of or is misinformed as to the search's purpose. People v. Santistevan, 715 P.2d 792 (Colo. 1986), cert. denied, 479 U.S. 965, 107 S.Ct. 468, 93 L.Ed.2d 412 (1986).
Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority. Most courts have recognized that ruses are a sometimes necessary element of police work and have held that deception standing alone does not invalidate consent; it is one factor to be considered in assessing the totality of the circumstances. See People v. Santistevan, supra. (misrepresentation by police about the purpose of a search may weigh against a finding of consent but does not invalidate consent); People v. Daugherty, 514 N.E.2d 228 (Ill.App. 1987) (ruses tolerable if they do not exceed the bounds of fundamental fairness such as by coercion or misrepresentation of authority; search held fundamentally unfair where officer gained entry to home by claiming he wanted to investigate recent theft and questioned owner until drugs were discovered); State v. Johnson, 856 P.2d 134 (Kan. 1993) (police could obtain consent to search by claiming they were looking for a third party); State v. Watson, 416 So.2d 919 (La. 1982) (police may search suitcase for drugs by obtaining owner's consent to search suitcase for identification); People v. Lee, 610 N.Y.S.2d 1013 (Orange County Court, 1994) (ruse held unfair where suspect volunteered her possession of drugs in response to officer's bluff that she would have to ride to station house in patrol car with a drug-sniffing rottweiler; threat to suspect's safety vitiated consent); Commonwealth v. Morrison, 418 A.2d 1378 (Pa.Super. 1980) (police may misrepresent both identity and purpose to obtain consent to enter home) cert. denied sub nom. Morrison v. Pennsylvania, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Dotsey v. State, 630 S.W.2d 343 (Tex.App. 1982) (police may use interrogation techniques, such as falsely claiming that a co-conspirator has incriminated suspect, in order to obtain consent to search); 3 W. LaFave, Search and Seizure § 8.2(m) (1996).
See also United States v. White, 706 F.2d 806 (7th Cir. 1983) (where defendant consented to search of apartment for drugs, discovery and seizure of marked currency was within scope of search and thus permissible; court focused on whether search exceeded the scope of consent produced through the ruse); State v. Schweich, 414 N.W.2d 227 (Minn.App. 1987) (where homeowner consented to police request to search for a tenant's guns, police should not have continued searching for homeowner's drugs after finding guns; search exceeded scope of consent and was impermissible). Cf. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (overbearing conduct or misrepresentation of authority will render consent involuntary). But see State v. McCrorey, 851 P.2d 1234, 1240 (Wash.App. 1993) (court held entry impermissible, stating that "police acting in their official capacity may not actively misrepresent their purpose to gain entry or exceed the scope of consent given"; ruse entries approved in conjunction with undercover police activity).
Here, the trial court considered the deception by the police as one important factor in assessing the totality of the circumstances. Nevertheless, based upon all of the factors, it determined that defendant's consent was voluntary. That determination is fully supported by the record.
Although the officers may have partially misrepresented their purpose by not disclosing they were investigating a rape rather than a domestic dispute, nevertheless, they were truthful in stating they wished to see the layout of defendant's apartment. In fact, they wanted to compare it with the victim's description of her perpetrator's apartment. The police did not feign an emergency, conceal their identities, or misrepresent their authority. Nor did they exceed the scope of the consent. Defendant permitted the officers to look at the layout of his apartment and that is all the officers did. Once they were in the apartment, they saw how messy it was, a fact already disclosed voluntarily by the defendant, and they also observed the incriminating waterbed frame in plain view. See People v. Torand, 622 P.2d 562 (Colo. 1981) (scope of consensual search may be limited by defendant, but police may consider incriminating items found in plain view while conducting limited search). Further, the court found that defendant was aware of his right to refuse consent, and was not threatened or pressured in any way by the police.
Because the trial court found that the officers were not threatening or overbearing, that defendant's consent was a product of his own free will and intelligently made, and that defendant knew he could refuse entry, there is record support for its conclusion that defendant's consent was voluntary.
Contrary to defendant's contention, McCall v. People, 623 P.2d 397 (Colo. 1981), does not require a different result.
In McCall, probable cause existed for the defendant's arrest. However, the police on the advice of the deputy district attorney deliberately used deception to circumvent the warrant requirement in order to increase their chances of obtaining a confession. Relying heavily on Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed.2d 639 (1980), which was announced after the trial court's ruling, our supreme court invalidated the arrest of the eighteen-year-old defendant that occurred after his parents had allowed the police to interview him in private. Finding neither exigent circumstances nor valid consent for the warrantless arrest, the court stated:
The sheriff-detectives deceived the defendant's parents into believing that their purpose in being there was to question the defendant as a witness. It was on the basis of this deception that they were allowed to enter and remain. Once inside the house, they proceeded to carry out their plan of incriminating interrogation, arresting the defendant inside the house, and then spirited him away unbeknown to his mother and father. Where, as here, entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking.
McCall v. People, supra, 623 P.2d at 403.
In contrast, here, the police went to defendant's apartment because of the general location given by the victim and did not have probable cause to arrest the defendant. Because he did not fit the description of the perpetrator, this defendant was not a suspect at the time police entered his apartment. And, unlike the circumstances in McCall in which the police were advised by the deputy district attorney deliberately to circumvent the warrant requirement in order to increase their chances of obtaining a confession and in which all material facts were deceptive, here, the only significant undisclosed fact was the nature of the offense the police were investigating. The police truthfully stated they wanted to see the layout of the apartment, albeit for the investigation of an undisclosed offense.
Finally, in its discussion regarding consent, McCall relied on cases decided before Schneckloth v. Bustamonte, supra. This older caselaw required a knowing, voluntary, and intelligent waiver of Fourth Amendment rights before police could obtain consent to search. More recent cases have analyzed the voluntariness of the consent to search a dwelling under the totality of the circumstances test. Under that test, deception is but one factor among many to be considered. See People v. Sanders, 904 P.2d 1311 (Colo. 1995); People v. McKinstrey, 852 P.2d 467 (Colo. 1993). See also People v. Licea, ___ P.2d ___ (Colo. No. 95SA361, June 17, 1996) (consent to search of car analyzed under totality of circumstances test; defendant's consent voluntary in the absence of evidence that he did not understand request or that police coercion overcame his will).
Thus, McCall is factually distinguishable and the trial court did not err in refusing to suppress evidence on that basis. Accordingly, while we do not condone deception, we conclude that the court did not err in refusing to suppress the fruits of the search of defendant's apartment.
II.
Defendant next contends that the police failed to honor his right to remain silent by continuing to question him until he confessed to having sex with the victim. The record indicates otherwise.
When the defendant was arrested, he was given a Miranda advisement and he told the officer he did not want to talk. The police stopped their questioning and booked him. Later, when an officer asked him if he had changed his mind about talking, defendant said no, all questioning again ceased, and after being booked, defendant was placed in a holding cell.
Some time later, defendant asked officers what was going to happen to him. The police asked if he wanted to talk to a detective and defendant agreed. A detective explained the charges. Defendant continued to talk at which time the detective reminded defendant that he originally had not wanted to talk and that he did not have to talk now. When defendant indicated his willingness to tell his side of the story, the detective readvised him of his Miranda rights after which defendant admitted to having sex with the victim.
Once a suspect invokes his or her right to remain silent, police must scrupulously honor that right. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct 321, 46 L.Ed.2d 313 (1975). Questioning may continue only when initiated by the suspect, and then only if the suspect evinces a desire to discuss the investigation generally, and not merely question the reason for custody. People v. Ross, 821 P.2d 816 (Colo. 1992).
A suspect who invokes his right to remain silent may later choose to waive the right and speak to police. Under such circumstances, re-advising a defendant of his Miranda rights is usually sufficient to insure that a waiver is voluntary, unless police conduct is so egregious as to taint the later confession. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Here, a police officer asked the defendant if he had changed his mind about not talking, but after the defendant said no, the police ended the discussion. Later, the defendant twice asked if anybody was going to talk to him about what was going on. It was only at this point that the police officer summoned a detective, who reminded the defendant of his earlier decision to remain silent, and again advised the defendant of his Miranda rights.
We thus agree with the trial court that, under these circumstances, the defendant's decision to talk was voluntary, and that the police did not violate his right to remain silent. See People v. Delgado, 832 P.2d 971 (Colo.App. 1981).
III.
Defendant next contends the trial court erred in denying his motion for judgment of acquittal as to the sexual assault by threat of kidnap charge. Specifically, he claims there was insufficient evidence to show a threat of kidnapping with regard to the sexual assault which is required to make the crime a class three felony. We are not persuaded.
In challenging the sufficiency of the evidence, we view the record in the light most favorable to the People and consider whether there is sufficient evidence of record to establish all the elements of the crime beyond a reasonable doubt. People v. Gonzales, 666 P.2d 123 (Colo. 1983).
For purposes of his motion for judgment of acquittal, defense counsel conceded that defendant did kidnap the victim in order to sexually assault her. However, defense counsel argued that, at the time of the sexual assault, the kidnapping was a completed act and defendant could not have committed the sexual assault by threat of imminent kidnapping, as contemplated by § 18-3-405(2)(b), C.R.S. (1995 Cum. Supp.).
We do not read the statute so narrowly. The victim testified at trial that defendant forced her into his car, pulled her jacket up over her head, and took her to his apartment. The victim then did what was demanded of her. Based on these facts, a trier of fact could reasonably determine the victim was kidnapped, and the kidnapping was an ongoing process. The victim's belief that defendant would continue to hold her against her will unless she complied with his sexual demands thus could constitute a continuing threat of imminent kidnap.
Accordingly, we reject defendant's assertion that his conviction on this charge was not supported by sufficient evidence.
IV.
Finally, defendant contends that the trial court committed plain error by not clarifying the jury's confusion over the definition of kidnapping. The record shows that any conceivable error was invited, thus affording defendant no basis for relief.
While deliberating, the jury sent the court a note asking:
What does kidnapping mean if she was already in the apartment? We are confused about sexual assault with the threat of kidnapping.
The parties agreed that the issue of whether there was a completed kidnapping or a threat of ongoing kidnapping was a question of fact for the jury and that no clarifying instructions should be given. On this basis, the trial court referred the jury back to its original instructions.
Since defendant made a tactical decision to let the jury resolve the issue without further instruction, we reject his argument that the trial court committed plain error in granting his request. See People v. Zapata, 779 P.2d 1307 (Colo. 1989) (error in instruction that is invited provides no basis for relief).
The judgment is affirmed.
JUDGE CASEBOLT concurs.
JUDGE TAUBMAN dissents.