People v. Hearty

• Decision Date: 19 April 1982
• Docket Number: 81SA540,81SA541 and 81SA542,Nos. 81SA539,s. 81SA539
• Citation: 644 P.2d 302
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard HEARTY, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Antonio AMEZQUITA, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David IDEN, Defendant-Appellee. (Two cases).
• Court: Colorado Supreme Court

Page 302

644 P.2d 302

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Richard HEARTY, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Antonio AMEZQUITA, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David IDEN, Defendant-Appellee. (Two cases).

Nos. 81SA539, 81SA540, 81SA541 and 81SA542.

Supreme Court of Colorado, En Banc.

April 19, 1982.

Alexander M. Hunter, Dist. Atty., Peter Michael Maguire, Deputy Dist. Atty., Alan R. Beckman, Thomas M. O'Rourke, Sp. Deputy Dist. Attys., Boulder, for plaintiff-appellant.

No appearance for defendant-appellee Hearty.

Lee Allen Hawke, Boulder, for defendant-appellee Amezquita.

Arthur M. Schwartz, Denver, for defendant-appellee Iden.

QUINN, Justice.

Pursuant to C.A.R. 4.1 the People in this interlocutory appeal challenge a suppression ruling entered in the course of a pending criminal case in which the defendant-appellees, David Iden, Richard Hearty and Antonio Amezquita, have been charged by indictment with criminal extortion, ¹ theft, ² and conspiracy to commit extortion, ³ during the period between March 8 and March 25, 1981. The evidence suppressed by the district court was seized pursuant to search warrants from the residence of Iden and from the office of an attorney who previously represented Iden and Hearty. ⁴ The district court suppressed the evidence seized from Iden's residence on the grounds that there was not probable cause for the issuance of the warrant, the information in the affidavit was stale, and the seizure of a leather pouch containing cocaine and drug paraphernalia was not within the plain view exception to the warrant requirement. ⁵ The court also suppressed client files and other documents seized from the attorney's office on the basis that they were outside the scope of the property described in the warrant. ⁶ We conclude that the court erred in suppressing the evidence seized from the Iden location but properly suppressed the client files and other documents seized from the attorney's office.

I. Facts

In early May 1981 Detective Hayes and Sergeant Spotts of the Boulder Police Department were investigating an extortion scheme which had been reported to them on May 6, 1981, by Kevin Engel and his wife, Holly Engel. According to the affidavit of Detective Hayes, which was filed in support of subsequently issued search warrants, the Engels described the following events. On March 8, 1981, Richard Hearty and Antonio Amezquita contacted Kevin Engel at his Boulder home and accused him of stealing $300,000 from Hearty's residence the previous October. Although Engel denied the theft, Hearty and Amezquita told him that if he did not return $200,000 of the money, his life as well as those of his wife, his two children and his parents would be in jeopardy. The affidavit of Detective Hayes describes these threats as follows:

"Mr. Engel advised that 'Tony' (Amezquita) then stated, 'You can go to the police and they may look in on your families and stuff for a while, but sooner or later we're going to get somebody alone and you're going to be awfully unhappy that you made that decision.'

"Mr. Engel stated, at that point, he thought that he wasn't dealing with normal people so he continued to talk with 'Tony'. Mr. Engel then asked 'Tony' what he 'Tony' wanted him to do, and that he did have some money.

"Mr. Engel stated that 'Tony' and Richard Hearty then advised him that Richard Hearty had been ripped off for Three Hundred Thousand Dollars that belonged to a Central American organization and that they wanted it back. Mr. Engel stated that he was also advised by 'Tony' that the people involved were 'Mafia types' and they would stop at nothing to make anyone pay for it. Mr. Engel further stated that 'Tony' and Richard Hearty advised him that if he did not do something today (Sunday, March 8, 1981) and give them some kind of earnest money, they were going to start knocking off people in his family. Mr. Engel further stated that 'Tony' and Richard Hearty also threatened a friend of his ....

"When asked by Sgt. Spotts to get more specific (with reference to) the threats made to him by 'Tony' and Mr. Hearty, Mr. Engel stated that they both said the following: 'These people from Central America want their money, they don't stop at anything. They'll kill you in a parking lot. It doesn't matter, Safeway, King Soopers, they'll gun you down. If you try to give them any shit, they will first take and break your kid's legs and your arms and legs and then your wife's. They will shoot them, and then they will kill you before they do any ... they are not just going to let you get by with dying.' "

In response to those threats Engel paid Hearty $43,220 in cash on March 8. He paid $12,000 in cash to Hearty and Amezquita on March 9. Shortly thereafter Engel and his wife signed over the titles to three of their vehicles to Hearty and Amezquita. In exchange for the title to one of the vehicles, a 1980 Porsche, Engel was credited with $22,000. Mrs. Engel was later able to talk Hearty and Amezquita into returning the two other vehicles. The Engels subsequently made cash payments to Hearty and Amezquita in the amounts of $14,000 on March 10,.$19,000 on March 11, and $11,000 on March 12. Between March 15 and 25 the Engels endorsed $27,000 in checks from their New York stock broker to Hearty and Amezquita. Mrs. Engel told the officers that she signed the checks at her bank, which guaranteed her signature. Amezquita had told her that he was going to New York to cash the checks in order to avoid running them through his own account.

Engel and his wife had observed various persons in different automobiles watching their residence at various times throughout the month of March and on one of these occasions a person was seen taking photographs of their home. Mr. Engel noticed that several of the suspect vehicles had license plates with the letters "RR" on them. When he later asked Amezquita about these license plates, Amezquita advised him that they were rental plates and the person in one of the vehicles had a sawed-off shotgun. Amezquita further advised Engel at this time that both Engel and his wife "were being watched for their protection as they thought the Central American guys were going to kill them...."

On April 25, 1981, Engel observed Amezquita driving the Porsche which Engel had transferred to him previously. The next day Engel telephoned Amezquita and demanded the return of the Porsche. Amezquita refused and in response to Engel's accusation that Amezquita was "scamming" him stated, "You've got that right pal."

On May 6, 1981, Detective Hayes and Sergeant Spotts interviewed Craig Skinner, a friend of Engel, and Skinner furnished them the following information. Richard Hearty, who was a friend of Skinner, told him that some $300,000 in cash and gems had been stolen from his apartment in September or October of 1980. Hearty had been holding the money for David Iden and did not report the theft to the police. Iden owned and operated the Colorado Gem Exchange in Boulder, and, according to Skinner, the stolen money and gems were the fruits of smuggling operations. In discussing the theft with Hearty, Hearty informed Skinner that a lawyer named "Sandy" had referred him to a private detective, Tony Amezquita. Skinner assisted Hearty and Amezquita in the initial investigation of the theft. On one occasion Skinner mentioned to Hearty the possibility that Engel might have been involved in the theft because he had been spending a lot of money recently. On May 4, 1981, Skinner discussed the Engel matter with Iden at the latter's office and Iden told him that these Central American people "are willing to come up and kill somebody." Iden on this occasion acknowledged that he knew of Engel's past payments of money to Amezquita and Hearty.

Detective Hayes and Sergeant Spotts thereafter contacted the Colorado Department of Revenue and learned that the 1980 Porsche with Engel's vehicle registration number had been registered to Antonio Amezquita. Further investigation by the officers established the respective residences of Iden, Hearty and Amezquita, as well as the location of Iden's gem business in Boulder.

On May 12, 1981 Detective Hayes applied for search warrants for the residences of Iden, Hearty and Amezquita, and also for the Colorado Gem Exchange operated by Iden. Judge Scott issued search warrants authorizing the officers to search for and seize the 1980 Porsche, title to the Porsche and any documents pertaining to the surveillance conducted on the Engels during the period of March 8 through March 21, 1981, including photographs, writings, and rental car documents and billings pertaining to the vehicles used in the surveillance. The search warrant for Iden's residence was executed on the day of its issuance and officers seized $117,680 in cash, a notebook containing several entries pertaining to the Engels, a maintenance manual for a Porsche automobile, and an insurance bill addressed to Iden at his residence. During the search of Iden's home, a twelve by fifteen inch leather pouch was located in a bedroom. Upon opening it the searching officer saw suspected glass vials of cocaine and other narcotic paraphernalia which were then seized.

The Boulder Police Department also had been investigating the activities of a Boulder attorney, Sandra Younghans, in connection with the extortion scheme. On May 15, 1981, Detective Hayes submitted an affidavit for a warrant to search Younghans' office. The affidavit alleged that Younghans, who was a partner in Wollrab and Younghans, P. C., had admitted to Assistant District Attorney William Wise that she was the "Sandy" who had referred Hearty to Amezquita and that she later told Amezquita and Hearty to "ease up" on their threats to the Engels. The affidavit further alleged that Kevin Engel had examined the returned checks which he and his wife had...