People v. Gifford
| Decision Date | 04 December 1989 |
| Docket Number | No. 89SA126,89SA126 |
| Citation | 782 P.2d 795 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gilbert Edward GIFFORD, Defendant-Appellee. |
| Court | Colorado Supreme Court |
G.F. Sandstrom, Dist. Atty. and Patrick J. Delaney, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.
Darol C. Biddle, Pueblo, for defendant-appellee.
Pursuant to C.A.R. 4.1 the prosecution appeals from a district court order suppressing all evidence seized during a search of the defendant's residence as well as statements made by the defendant during the course of the search. In our view, the trial court properly held that the police officers made an illegal forced entry. As this issue is dispositive, we decline to address the remaining issues presented by this appeal. Accordingly, we affirm the order of the district court.
At the suppression hearing, the prosecution presented the testimony of Detectives Andrew and Samek of the Pueblo Police Department and Jay Willden. Andrew and Samek questioned Willden, who was being held on charges unrelated to this proceeding. Willden confessed to the commission of several burglaries and said that he sold the stolen items to the defendant at his residence for cash. Willden also said that he had friends that had been selling stolen property to the defendant for several months on a regular basis. He stated that the defendant told him that he would buy "most any electronic stolen property and especially handguns" for cash. The officers verified the details of Willden's story by reviewing police reports made during the investigations of the burglaries Willden admittedly committed.
After Willden was released on bond, Detectives Samek and Andrew arranged for him to sell three video cassette recorders (VCRs) to the defendant at his home. Andrew obtained the three VCRs from a business previously burglarized by Willden. With Samek monitoring the transaction through an electronic listening device, Willden sold two of the VCRs to the defendant for $270 and exchanged the third for one that Willden had sold to the defendant that did not work. During the course of the sale, Willden told the defendant that the VCRs were stolen.
After the transaction was completed, Samek reported the facts relating to the sale to Detective Andrew. Andrew prepared an affidavit supporting the application for a search warrant using the information provided by Willden, the corroborating police reports, and Samek's report of the sale of the three VCRs. After obtaining the search warrant for the defendant's residence at 2211 Moline, Andrew notified Samek, who was waiting near the defendant's residence, of its issuance. The search warrant authorized seizure of a number of specifically described pieces of electronic equipment, and:
All electronic equipment (video cassette recorder's [sic], televisions, microwaves, stereo components) and hand guns with serial numbers removed, altered or destroyed and articles of personal property tending to establish the identity of persons in control of said contraband, related paraphenalia [sic], consisting in part and including, but not limited to, utility company receipts, rent receipts, financial records, cancelled mail envelopes, photographs, keys, and monies related to the foregoing illegal activities.
Samek, accompanied by two officers with other officers waiting around the house, approached the front door of the defendant's residence. Three people, unidentified in the record, were on or near the front porch. Samek identified himself and the other police officers, and stated that a search warrant had been issued authorizing a search of the house. He then entered the house through a closed, unlocked door, followed by seven other officers. The police officers admittedly did not have possession of a warrant when the entry was made. Samek encountered the defendant's wife in a room adjoining the front door, and informed her that he was a police officer and that a warrant had been issued to search the house. After entry was made, each of the police officers searched a different part of the house. The defendant, who was not present when the officers entered, was brought to the house by another police officer shortly after the search commenced. Approximately thirty minutes later, Andrew arrived with the search warrant.
As many as fifteen police officers participated in an extensive search of the defendant's house at 2211 Moline and a garage owned by the defendant at a separate address, 2210 Newport. The search lasted approximately eight hours and numerous items were seized that were not described in the warrant. Five items specifically described in the warrant were seized, including the three VCRs which Willden sold to the defendant. Five items lacking legible serial numbers and an address list, utility bills, and other assorted bills, receipts and deposits were also seized. Other items not described in the warrant were seized, including electronic equipment with legible serial numbers, clothing in various sizes with price tags attached, and jewelry. Based on the items acquired pursuant to the warrant, the defendant was charged with five counts of theft by receiving, section 18-4-410, 8B C.R.S. (1986).
The defendant filed a motion to suppress evidence alleging, inter alia, that: (1) the search warrant issued for 2211 Moline was not supported by probable cause; (2) the description of the items to be seized was insufficient; (3) the police officers failed to knock and announce their purpose and authority prior to entering; and (4) the property was illegally seized pursuant to a general exploratory search. The defendant also moved to suppress the items taken from the garage at 2210 Newport.
The trial court granted the defendant's motion to suppress, holding that the officers made a forceful and illegal entry into the defendant's home without justification. As an alternative ground, the trial court found that the search mandate to seize personal property tending to establish the identity of persons in control of the stolen property was not based on probable cause. The court also concluded that the seizure of items not described in the warrant did not satisfy the plain view exception to the search warrant requirement. The defendant's statements to the police during the search were also suppressed as fruit of the poisonous tree. The prosecution appealed. 1
The trial court suppressed all evidence seized during the search of the defendant's residence and all statements made by the defendant during the search on the ground that the method of executing the warrant invalidated the entire search. The first issue is whether the officers complied with the "knock and announce" requirement. The trial judge held that the officers forcibly entered the defendant's house through an unlocked, closed door without notice to or permission of the occupants and immediately thereafter conducted a search of the defendant's residence prior to the arrival of a search warrant. In reaching this conclusion, the court found that the knock and announce requirement was not satisfied by Samek's statement to the unidentified persons outside of the house. 2
A basic axiom of search and seizure law is that a lawful search must be preceded by a lawful entry of the premises to be searched. See Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). In People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971), we held, on the basis of the fourth amendment and the common law, that police officers executing a warrant must identify themselves and their purpose prior to a forced entry, unless certain exceptions apply. 3 Id. at 559, 484 P.2d at 1241. The prosecution does not contend that any of the exceptions set forth in Lujan apply to this case. The search warrant was not a "no knock" warrant and no justification was shown for entry without complying with the knock and announce requirement of Lujan.
Since the trial court found that there was a forced entry and that the requirements of People v. Lujan were not met, the burden was on the prosecution to establish that the search was lawful. People v. Madson, 638 P.2d 18, 33 (Colo.1981). In People v. Griffin, 727 P.2d 55 (Colo.1986), an illegal search was made and then the premises were secured until the search warrant arrived. We held that the search pursuant to the warrant was not tainted by the unlawful warrantless search made at the time of entry and suppressed only those items which were seized prior to the time the search warrant was brought to the premises. Id. at 58. Since the search warrant in Griffin was based on information obtained by the officers prior to the warrantless entry, the prosecution established that the search pursuant to the warrant was sufficiently attenuated from the prior unlawful entry that the fruits of the search were admissible under the independent source doctrine. Id. The prosecution in this case did not establish that the search of the defendant's residence was free of the taint of the illegal entry.
A forced entry need not be accomplished by actual physical violence, since an unannounced entry through an unlocked door may be forcible. Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968); 4 People v. Godinas, 176 Colo. 391, 394-95, 490 P.2d 945, 947 (1971). Such an entry is as violative of the purposes underlying the knock and announce requirement as an entry involving actual physical harm to property. The knock and announce requirement insulates persons from the shock of unannounced entry of police officers into their homes, and protects both occupants and searching police officers from the consequences of the use of force in defense of the home against unauthorized entry. 2 W. Lafave, Search and Seizure § 4.8, at 272-73 (2d ed.1987). Since Samek and the other officers entered the defendant's house through a closed...
To continue reading
Request your trial
-
People v. McKinstry
...be a substantive error to execute the warrant without giving a copy of it to the defendant at the time of execution. People v. Gifford, 782 P.2d 795, 797 n. 2 (Colo.1989); see also United States v. Marx, 635 F.2d 436 (5th Therefore, the defendant was not entitled to immediate access to the ......
-
State v. Rogers
...to the United States Constitution. See, e.g., People v. Gonzalez, 211 Cal.App.3d 1043, 259 Cal.Rptr. 846 (1989); People v. Gifford, 782 P.2d 795, 798 n. 4 (Colo.1989) (en banc); State v. Sakellson, 379 N.W.2d 779 (N.D.1985). Other courts have concluded that, although the knock and announce ......
-
People v. Miller, 02CA0850.
...However, the "knock and announce" requirement is applicable only if the police conduct constituted a forced entry. People v. Gifford, 782 P.2d 795, 797 (Colo.1989). No forced entry occurs when a police officer, in possession of a valid search warrant, rings the doorbell and merely steps acr......
-
People v. Butler, 08CA0944.
......2159, 165 L.Ed.2d 56 (2006), where the United States Supreme Court held that a violation of the knock-and-announce rule does not permit suppression of any illegally obtained evidence found in the search. Moreover, neither party addressed the supreme court's holding in People v. Gifford, 782 P.2d 795, 799 (Colo.1989), relying on federal law, that the appropriate remedy for a violation of the knock-and-announce rule is suppression of the evidence. 2 Accordingly, we requested supplemental briefs from the parties to discuss whether Butler has a remedy in this case even if his Fourth ......