228 P.3d 229 (Colo.App.Div. 5 2009), 06CA1560, People v. Samuels

Docket Nº06CA1560.
Citation228 P.3d 229
Opinion JudgeJ. JONES, Judge
Party NameThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricardo Lemar SAMUELS, Defendant-Appellant.
AttorneyJohn W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. The Law Office of Jonathan D. Rosen, PC, Jonathan D. Rosen, Denver, Colorado, for Defendant-Appellant.
Judge PanelJudge RUSSEL and Judge TERRY concur.
Case DateOctober 15, 2009
CourtCourt of Appeals of Colorado, Fifth Division

Page 229

228 P.3d 229 (Colo.App.Div. 5 2009)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.

Ricardo Lemar SAMUELS, Defendant-Appellant.

No. 06CA1560.

Court of Appeals of Colorado, Fifth Division.

October 15, 2009

Rehearing Denied Nov. 19, 2009.

Page 230

[Copyrighted Material Omitted]

Page 231

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Law Office of Jonathan D. Rosen, PC, Jonathan D. Rosen, Denver, Colorado, for Defendant-Appellant.

OPINION

J. JONES, Judge

Defendant, Ricardo Lemar Samuels, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of first degree murder (extreme indifference), two counts of attempted first degree murder (extreme indifference), one count of conspiracy to commit first degree murder, one count of possession of a weapon by a previous offender, and two crime of violence counts. We affirm.

I. Background

At about 2:30 a.m. on March 26, 2005, J.C., a Bloods gang member, borrowed his sister's car intending to go to his girlfriend's house. He was dressed completely in red, the Bloods gang color. Before he left, he accidentally locked the keys in the car while the engine was running. After unsuccessfully trying to unlock the car door with a coat hanger, J.C. asked his sister for help, but she was unable to unlock it. He then called his mother. She and her boyfriend, R.J., both came to help. While J.C., his mother, and R.J. were trying to unlock the car, a car slowly passed by. A few minutes later, the same car again approached them. A passenger in that car fired several shots at J.C., his mother, and R.J., killing R.J.

In the course of the police's investigation of the killing, a witness identified defendant as the shooter. The People charged defendant with numerous offenses. A jury found defendant guilty of the charges identified above. The court sentenced defendant to life plus 150 years in the custody of the Department of Corrections.

II. Discussion

Defendant contends that the district court erred in: (1) denying his motion to suppress; (2) denying the prosecution's motion to disqualify one of his trial attorneys; (3) denying his challenge for cause of a prospective juror; (4) allowing his attorney only sixty minutes to conduct voir dire; (5) allowing the prosecution to use his nickname; and (6) admitting certain evidence. We address and reject each of these contentions in turn, and also reject defendant's claim of cumulative error.

A. Motion to Suppress

When the police learned that defendant was the shooter, they obtained a warrant for his arrest on a charge of first degree murder. In the midst of the process of obtaining the

Page 232

warrant, a police officer telephoned defendant's probation officer, told him about defendant's alleged involvement in the shooting, and said the police were going to arrest defendant that day. The probation officer said that he had an appointment to meet defendant that day. At the police officer's request, the probation officer telephoned defendant and told him that he would meet him at defendant's residence rather than at the probation officer's office. The probation officer accompanied police officers to defendant's residence, a group home. The police officers arrested defendant. On his own initiative, the probation officer then searched defendant's bedroom for evidence of probation violations; specifically, the probation officer suspected defendant of possessing a firearm because of the murder charge. The probation officer found two jackets linking defendant to the offense and, in a pocket of one of the jackets, a .40 caliber bullet cartridge wrapped in a tissue.

Defendant moved to suppress the jackets and bullet cartridge. Following a hearing, the district court denied the motion, finding that the probation officer had reasonable suspicion that defendant had violated conditions of his probation, a search of defendant's bedroom was therefore reasonable under the Fourth Amendment to the United States Constitution, and the scope of the search did not exceed that justified by the probation officer's reasonable suspicion that defendant had violated terms of his probation. The prosecution introduced the jackets and bullet cartridge into evidence at trial.

On appeal, defendant challenges the district court's suppression ruling on two bases. First, he contends the search was not permissible under the Fourth Amendment absent a warrant supported by probable cause because his mere status as a probationer did not, under the circumstances here, reduce his reasonable expectation of privacy in his residence. Second, he contends that even if the search was permissible without a warrant, the thorough search conducted by his probation officer of his bedroom and his belongings therein was not justified by the circumstances.

When reviewing a district court's ruling on a motion to suppress, we defer to the court's factual findings if supported by the record but review its legal conclusions, including any determination as to the defendant's reasonable expectation of privacy, de novo. People v. Galvadon, 103 P.3d 923, 927 (Colo.2005); People v. Schall, 59 P.3d 848, 851 (Colo.2002).

1. A search of defendant's bedroom was reasonable under the Fourth Amendment

It is undisputed that Colorado's statutes governing probation do not expressly state that warrantless searches of probationers' residences are permissible, nor is there any regulation so providing. It is also undisputed that although defendant was subject to several express conditions of probation, there was no express condition that he permit warrantless searches of his residence. The United States Supreme Court has yet to decide whether a warrantless search of a probationer's residence based on reasonable suspicion of a probation violation is consistent with the Fourth Amendment in the absence of such an authorizing law or condition. That issue is squarely before us in this case.

a. Law

The Fourth Amendment protects persons and, as relevant here, their residences " against unreasonable searches and seizures," and prohibits the issuance of warrants absent probable cause. U.S. Const. amend. IV. A search, therefore, usually may be undertaken only pursuant to a warrant supported by probable cause; however, exceptions exist when " ‘ special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ " Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting in part New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackman, J., concurring)); accord People v. McCullough, 6 P.3d 774, 779 (Colo.2000).

Whether a search is consistent with the Fourth Amendment turns on whether it is reasonable, " and the reasonableness of a search is determined ‘ by assessing, on the

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one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting in part Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)); accord Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); see also Knights, 534 U.S. at 121, 122 S.Ct. 587 (" [A] lesser degree [of cause] satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." ). We consider " ‘ the totality of the circumstances' " weighing on either side of the balance. Knights, 534 U.S. at 118, 122 S.Ct. 587 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)); accord Samson, 547 U.S. at 848, 126 S.Ct. 2193; McCullough, 6 P.3d at 779.

In three cases, Griffin , Knights, and Samson, the Supreme Court has examined the reasonableness of searches in circumstances similar, but not identical, to those here. The analysis employed by the Court in those cases significantly informs our analysis in this case, and therefore we briefly review the circumstances and holdings of each.

In Griffin, the Court reviewed a decision of the Wisconsin Supreme Court holding that probationers categorically have a reduced expectation of privacy, and therefore law enforcement officials may search a probationer's home without a warrant, based merely on " reasonable grounds" to believe evidence of a probation violation will be found. State v. Griffin, 131 Wis.2d 41, 388 N.W.2d 535, 541-42 (1986), aff'd on other grounds, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). The Court concluded it did not need to decide whether the Wisconsin Supreme Court's conclusion was correct because it could affirm the denial of the motion to suppress on the ground the search " was carried out pursuant to a regulation that itself satisfie[d] the Fourth Amendment's reasonableness requirement under well-established principles." 483 U.S. at 872-73, 107 S.Ct. 3164. That regulation (adopted after the defendant was placed on probation, see Knights, 534 U.S. at 117 n. 2, 122 S.Ct. 587; Griffin, 483 U.S. at 870-71, 107 S.Ct. 3164) allowed any probation officer to search a probationer's home without a warrant as long as there were " reasonable grounds" to believe it contained contraband the probationer was not permitted to possess. Griffin, 483 U.S. at 870-71, 107 S.Ct. 3164.

The Court reasoned that the operation of a probation system presents " special needs" beyond ordinary law enforcement justifying a departure from the usual warrant and probable cause requirements. Id. at 873-74, 107 S.Ct. 3164. Specifically, the Court observed that probation is one point on a continuum of possible punishment, and probationers therefore enjoy only conditional liberty; probation is intended to...

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  • Everett v. Long, 062421 CODC, C. A. 1:19-cv-03563-DDD
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • June 24, 2021
    ...doubt on the reliability of the judgment of conviction.' (Doc. 11-5 at 14) (emphasis added) (citing People v. Samuels, 228 P.3d 229 (Colo.App. 2009)). Under these circumstances, the claim is pro-cedurally defaulted and need not be addressed on the legal merits in this fe......
  • 417 P.3d 882 (Colo.App.Div. 4 2017), 15CA0717, People v. Stewart
    • United States
    • Colorado Court of Appeals of Colorado Fourth Division
    • July 27, 2017
    ...at 239)). [¶ 54] Because defendant didn’t raise his stand-alone Fourth Amendment argument in his motion, he waived it. People v. Samuels, 228 P.3d 229, 238 (Colo.App. 2009); People v. Salyer, 80 P.3d 831, 835 (Colo.App. 2003); see People v. Gouker, 665 P.2d 113, 117-18 (Colo. 1983) (a defen......
  • 417 P.3d 882 (Colo.App.Div. 4 2017), 15CA0717, People v. Stewart
    • United States
    • Colorado Court of Appeals of Colorado Fourth Division
    • July 27, 2017
    ...at 239)). [¶ 54] Because defendant didn’t raise his stand-alone Fourth Amendment argument in his motion, he waived it. People v. Samuels, 228 P.3d 229, 238 (Colo.App. 2009); People v. Salyer, 80 P.3d 831, 835 (Colo.App. 2003); see People v. Gouker, 665 P.2d 113, 117-18 (Colo. 1983) (a defen......
  • 467 P.3d 1228 (Colo.App.Div. 3 2019), 17CA0495, People v. Shanks
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • October 24, 2019
    ...we perceive no abuse of discretion in the district court's decision to allow the use of the nickname. See People v. Samuels, 228 P.3d 229, 243 (Colo.App. VI. Cumulative Error [¶75] Lastly, Shanks contends that the cumulative effect of the errors raised in this ......
  • Request a trial to view additional results
15 cases
  • 417 P.3d 882 (Colo.App.Div. 4 2017), 15CA0717, People v. Stewart
    • United States
    • Colorado Court of Appeals of Colorado Fourth Division
    • July 27, 2017
    ...54] Because defendant didn’t raise his stand-alone Fourth Amendment argument in his motion, he waived it. People v. Samuels, 228 P.3d 229, 238 (Colo.App. 2009); People v. Salyer, 80 P.3d 831, 835 (Colo.App. 2003); see People v. Gouker, 665 P.2d 113, 117-18 (Colo. 19......
  • Everett v. Long, 062421 CODC, C. A. 1:19-cv-03563-DDD
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • June 24, 2021
    ...doubt on the reliability of the judgment of conviction.' (Doc. 11-5 at 14) (emphasis added) (citing People v. Samuels, 228 P.3d 229 (Colo.App. 2009)). Under these circumstances, the claim is pro-cedurally defaulted and need not be addressed on the legal merits in this fe......
  • 417 P.3d 882 (Colo.App.Div. 4 2017), 15CA0717, People v. Stewart
    • United States
    • Colorado Court of Appeals of Colorado Fourth Division
    • July 27, 2017
    ...at 239)). [¶ 54] Because defendant didn’t raise his stand-alone Fourth Amendment argument in his motion, he waived it. People v. Samuels, 228 P.3d 229, 238 (Colo.App. 2009); People v. Salyer, 80 P.3d 831, 835 (Colo.App. 2003); see People v. Gouker, 665 P.2d 113, 117-18 (Colo. 1983) (a defen......
  • 467 P.3d 1228 (Colo.App.Div. 3 2019), 17CA0495, People v. Shanks
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • October 24, 2019
    ...we perceive no abuse of discretion in the district court's decision to allow the use of the nickname. See People v. Samuels, 228 P.3d 229, 243 (Colo.App. VI. Cumulative Error [¶75] Lastly, Shanks contends that the cumulative effect of the errors raised in this ......
  • Request a trial to view additional results

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