46 P.3d 473 (Colo. 2002), 01SA400, People v. Hebert

Docket Nº:01SA400.
Citation:46 P.3d 473
Opinion Judge:RICE, Justice.
Party Name:The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Hal HEBERT, Defendant-Appellee.
Attorney:A. William Ritter, Jr., District Attorney, 2nd Judicial District, Robert J. Whitley, Chief Deputy District Attorney, Denver, CO, Attorneys for Plaintiff-Appellant. A. William Ritter, Jr., District Attorney, 2nd Judicial District, Robert J. Whitley, Chief Deputy District Attorney, Denver, CO, Att...
Case Date:May 20, 2002
Court:Supreme Court of Colorado

Page 473

46 P.3d 473 (Colo. 2002)

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


Hal HEBERT, Defendant-Appellee.

No. 01SA400.

Supreme Court of Colorado, En Banc

May 20, 2002.

Page 474

[Copyrighted Material Omitted]

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A. William Ritter, Jr., District Attorney, 2nd Judicial District, Robert J. Whitley, Chief Deputy District Attorney, Denver, CO, Attorneys for Plaintiff-Appellant.

Springer & Steinberg, PC, Harvey A. Steinberg, Stacey L. Rose, Denver, CO, Attorneys for Defendant-Appellee.


RICE, Justice.

The People challenge suppression orders entered by the Denver District Court in the prosecution of Hal Hebert (Defendant) for first degree murder.1 The facts of this case do not support the police officers' warrantless entry into Defendant's residence under the emergency aid exception to the Warrant Clause of the Fourth Amendment to the United States Constitution and of article II, section 7 of the Colorado Constitution; however, the redacted affidavits supporting the search warrants2 are sufficient to sustain a

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finding of probable cause to search the residence. Therefore, we reverse the trial court's order and remand the case for further proceedings consistent with this opinion.


Defendant is charged with the murder of his wife, Carol Hebert, who was found dead in the trunk of her car on April 12, 2001.3

The following factual history is based on the trial court's findings of fact. On April 12, 2001 between 4:30 and 4:45 p.m., the Denver Police Department received a call reporting a suspicious death. Sergeant Michael Fetrow, a supervisor in the homicide unit, dispatched two detectives to the scene at 1597 Valentia Street. After arriving at the location, one of the detectives called Fetrow and told him that a body was found in the trunk of a car.

Witnesses at the scene reported that the car, a white Toyota Camry, had been parked on Valentia Street and running "all day long." (R. at v. IV, p. 56.) Noting a purse inside the car, the witnesses opened the trunk, found a woman's body, and called the police.

Fetrow arrived at the scene, examined the inside of the Camry's trunk, and observed the body of a white female wearing jeans, a blouse, socks, and a single sandal. He noticed dirt on the buttocks of the jeans and on the back side of the body and trauma or a gunshot wound to the back side of her head. Fetrow testified that the inside of the car was fairly clean, with no signs of blood or a struggle. He believed this was unusual, given the large amount of blood on the victim's head. Fetrow also observed that the victim did not have any defensive wounds. Accordingly, based on the way she was placed in the trunk, the dragging dirt marks on the buttocks of her pants, the fact that her glasses were on the back of her head, and the absence of large amounts of blood in the car, he concluded that she had been transported from another crime scene.

After running a motor vehicle report, the officers discovered that the car belonged to Carol Hebert at 655 South Monroe Way. According to motor vehicle records, Carol Hebert was five foot four inches tall, weighed 120 pounds, and had brown hair and brown eyes, a description matching the victim's.

Meanwhile, other officers were sent to 655 South Monroe Way to "keep an eye on the house." (R. at v. IV, p. 57.) At approximately 5:20 p.m. or 5:30 p.m., four officers established a perimeter around the residence and began surveillance on the home. Upon arriving at the Hebert residence, Sergeant Kevin Smith, one of the officers who had established the perimeter, was approached by a neighbor, Petey Fletcher. Fletcher told Smith that Hal and Carol Hebert lived at 655 South Monroe Way. As they were speaking, Fletcher received a call from another neighbor, Charles Anderson. According to Fletcher, Anderson remarked that "he had seen Hal backing one of the cars into the driveway and garage on the previous evening and thought it was unusual." (R. at v. IV, p. 58.)

Sergeant Smith watched the back of the Hebert residence for approximately thirty minutes and did not notice any signs of broken windows or forced entry. He did not observe any activity in the home, and at that time did not believe anyone was in the residence.

Technician Eric Knutson, who was positioned to watch the front of the residence, had been surveying the home for about forty-two minutes when he saw a man, who had driven a white sports utility vehicle to the Hebert residence, get out of the vehicle and walk directly to the residence. Knutson stopped the driver at the front door. As he did so, another man, later identified as Defendant, walked out of the front door of the house.

Knutson then spoke with John Mason, the driver of the SUV, who told him that he had been watching a breaking story on the news, which identified a car that had been found. Mason realized that the car matched the description of Carol Hebert's car. Mason

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then called Defendant, asked him if he was watching the news, and told him that the car might be Carol Hebert's car. Mason also reported that Defendant had called him the previous evening and told him that Carol had gone shopping and had not returned. Mason said Defendant sounded upset and troubled.

In the meantime, Sergeant Smith contacted Defendant, asked him if he was Hal (Hebert), and handcuffed him. Defendant was detained outside his home for about fifteen or twenty minutes Before Fetrow told officers to transport Defendant to headquarters because "he didn't like to do death notifications in a public street." (R. at v. IV, p. 61.)

Fetrow left the Valentia Street location at about 6:20 p.m., arriving at the Hebert residence approximately twenty to twenty-five minutes later. Defendant had already been transported to headquarters when he arrived.

After arriving on the scene and obtaining the updated investigations information, Fetrow determined that a search of the house was necessary "to see if there were any other victims, injured or dead." (R. at v. IV, p. 62.) However, Fetrow admitted that he knew that there were no reports of commotion at the residence; that Defendant did not look like he had been in an altercation and was not armed; and that Defendant had not attempted to flee the scene. Moreover, police did not yet have a positive identification of the body, and did not know the composition of the Hebert family. Nonetheless, Fetrow concluded that "it was not out of the realm of possibilities" that there would be more victims. (R. at v. IV, p. 62.)

Using flashlights to illuminate the interior of the home, three officers conducted a search of the residence. They did not open any drawers or cabinets. Although the officers did not locate any victims, they discovered very small blood droplets in various areas, including the carport, the sidewalk to the garage, the hardwood floor, and on a pair of men's shoes. The officers did not touch anything, but covered the suspected blood droplets on the patio with plastic.

In the intervening time, Detective Dave Wallis initiated a search warrant application for the white Toyota Camry. While preparing the application, Lieutenant Jon Priest advised Wallis that Officer Tim Blair saw Defendant at a police substation on April 12 at 2:45 a.m. Blair reported that Defendant appeared intoxicated and complained that his wife was missing. Blair also said that Defendant was given information about the missing persons unit. Blair forwarded this information when he learned of the possible homicide.

Detective Wallis also said that Lieutenant Priest told him about his conversation with Defendant's friend, John Mason. According to Priest, Mason said Defendant called him at midnight the evening of April 11 and said that his wife was missing. Mason said that Defendant told him that his wife left to go shopping at the mall at 6 p.m.; that he fell asleep at 8 p.m.; and that when he awoke at midnight she had not returned.

After the interior search of the residence, Fetrow asked Detective Wallis to prepare an affidavit to support a search warrant for the home and Defendant's car. The warrant was issued at 9:28 p.m. on April 12th and executed fifteen to twenty minutes later.

Detective Wallis and other officers entered the residence approximately five times pursuant to this warrant. According to Wallis, the search was complex and involved the retrieval of blood evidence using time consuming procedures. In addition, the retrieval was complicated by earlier apparent attempts to clean the blood spots. Another search warrant for the home was issued on October 2, 2001.

Defendant was arrested and charged with murder in the first degree pursuant to section 18-3-102(1)(a), 6 C.R.S. (2001). Defendant filed several suppression motions, and the trial court granted each of them. The trial court first ruled that the police officers' warrantless entry into the residence was not justified under the emergency exception because there was no showing of an immediate crisis; thus, it held that the entry violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution. Accordingly, it redacted the information obtained by the unconstitutional entry and considered whether

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the legally obtained information in the affidavit established probable cause. It held that it did not. Finally, the court held that the good-faith exception to the exclusionary rule did not apply because it reasoned that the exception would "apply in a situation where the officers in good faith relied on a warrant that is improperly issued by a magistrate." (R. at v. IV, p. 76.) Here, "[t]he Court would be speculating as to whether police or a magistrate would have issued a warrant based upon the information without the redacted information." (R. at v. IV, p. 76.)

In this interlocutory appeal, the prosecution challenges...

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