McCall v. People

Decision Date02 February 1981
Docket NumberNo. 79SC298,79SC298
Citation623 P.2d 397
PartiesRichard Michael McCALL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Peter H. Ney, Littleton, for petitioner.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for respondent.

QUINN, Justice.

We granted certiorari to review the decision of the court of appeals in People v. McCall, Colo.App., 603 P.2d 950 (1979), which affirmed the defendant's convictions for first degree murder, section 18-3-102, C.R.S. 1973 (1978 Repl. Vol. 8), and conspiracy to commit that offense, sections 18-2-201 and 18-3-102, C.R.S. 1973 (1978 Repl. Vol. 8). The court of appeals held that neither the Fourth Amendment to the United States Constitution nor Article II, Section 7, of the Colorado Constitution required the police to obtain an arrest warrant before entering the defendant's residence to effect his arrest even in the absence of exigent circumstances, and consequently, the defendant's confession was not suppressible as the product of an unconstitutional arrest. We reverse the judgment of the court of appeals and remand for a new trial.

The convictions arise out of the death of David Raley, a teenage acquaintance of McCall (defendant). The defendant was eighteen years old when Raley was killed. Raley's roommate reported him missing on October 5, 1977. The roommate told the police that he last saw Raley on the prior evening in the company of the defendant and two others, Michael McCarthy and Victor Steenbarger, and that the next day the defendant returned to him Raley's bank card, keys, and car registration. The defendant at this time told the roommate that Raley had suddenly decided to leave town.

The police suspected that the defendant and his two companions were involved in foul play in the matter of Raley's disappearance. On October 30, 1977, at about 11:45 a. m., Raley's body was found in a remote area of Arapahoe County. The coroner examined the body at this location and, from markings on the neck, determined that death had been caused by strangulation. At approximately 6:30 p. m. that evening a meeting was held by representatives of the Arapahoe County district attorney's office and detectives from various jurisdictions in the county. The purpose of the meeting was to discuss the subsequent course of action against McCall, McCarthy and Steenbarger. The meeting was tape-recorded and discussion centered on how the three suspects might be made to incriminate themselves before they were taken into custody. 1 It was decided that no attempt would be made to obtain an arrest warrant for the suspects, but that a team of sheriff-detectives and police officers would proceed to the defendant's home, where McCarthy also resided as a boarder, and interview them on the pretext that they were witnesses in the homicide case. Another team in the meantime would go to the home of the third suspect, Steenbarger, and carry out a similar scheme.

Several officers proceeded to the defendant's residence, where he lived with his parents, and arrived there shortly after 9:45 p. m. The defendant's mother and father were reserve police officers in the Aurora Police Department and, to facilitate entry into the home, two Aurora police officers accompanied the sheriff-detectives to the front door. The defendant's mother answered the door and, upon the sheriff-detectives identifying themselves, she admitted them inside. The detectives then requested permission to talk to the defendant in a private setting. This request met with initial resistance from the defendant's father. During a verbal exchange between the father and a sheriff-detective, the defendant asked permission of the officers to go downstairs for his eye glasses but permission was refused. The defendant and McCarthy were ordered by a sheriff-detective to sit on a couch in the living room. After being assured that the defendant was not a suspect and was not under arrest, the parents allowed the officers to question the defendant and McCarthy.

The parents at this point were taken to the basement in the company of the Aurora police officers. In order to separate the suspects a sheriff-detective asked the defendant to accompany him outside to a waiting police car. The defendant complied and he was taken to the police vehicle where he was advised orally and in writing of his Miranda rights at about 10:05 p. m. Another sheriff-officer joined them and sat in the back seat of the vehicle. The defendant agreed to talk and denied any involvement in the homicide. He was kept in the police vehicle and questioned for approximately forty minutes.

In the meantime Steenbarger was being questioned at his home and made an inculpatory statement which also implicated the defendant. This information was immediately dispatched by radio to the sheriff-detective who had been questioning the defendant in the police vehicle and he was ordered to terminate the interrogation and bring the defendant to the sheriff's office. The sheriff-detective and the defendant arrived at the stationhouse at 11:15 p. m. The defendant was again interrogated and was advised of Steenbarger's confession. He confessed to his participation in the homicide at about midnight on October 30.

The defendant's parents had never been informed of the removal of their son from the house. When they became aware of this fact they immediately contacted an attorney who in turn spoke to the defendant by telephone after the defendant had already confessed.

After formal charges were filed, 2 the defendant filed a pre-trial motion to suppress his confession. 3 The judge found that the law enforcement officers at their meeting on October 30, 1977, had determined to arrest the defendant without a warrant in his home and thereafter effected that arrest. 4 Noting that the statutory requirement of an arrest warrant when practicable was abolished as of May 20, 1977, the court concluded that the warrantless arrest of the defendant inside his home on October 30, 1977, was based on probable cause and such arrest did not violate the United States or the Colorado constitutions. 5 Accordingly, the defendant's motion to suppress his confession as the product of an unconstitutional arrest was denied.

The confession was admitted during the trial and the defendant appealed his convictions to the court of appeals. In affirming, the court of appeals held that even in the absence of exigent circumstances police officers may effect a warrantless arrest of a defendant inside his home so long as they have probable cause to believe that he committed a crime.

In this proceeding the defendant's principal contention is that his confession was improperly admitted because it was the product of an unlawful warrantless arrest inside his home in violation of the United States Constitution, U.S.Const. Amend. IV, and the Colorado Constitution, Colo.Const., Art. II, Sec. 7. He also questions the propriety of certain evidential rulings by the trial court and its failure to instruct the jury on a lesser non-included offense of accessory to murder in the first degree. Because we agree with the defendant's principal contention, it is unnecessary to address these other issues.

I. The Warrant Requirement

Both the trial court and the court of appeals decided the suppression issue prior to the United States Supreme Court's decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton the Supreme Court held that notwithstanding a New York statute authorizing a warrantless arrest inside the home, the Fourth Amendment prohibits warrantless and non-consensual entries into a suspect's home for the purpose of making an arrest unless exigent circumstances are present. The court remarked that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972), and found persuasive the reasoning articulated by the Second Circuit Court of Appeals in addressing this issue: 6

"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." 445 U.S. at 589, 100 S.Ct. at 1381, 63 L.Ed.2d at 652.

For purposes of the Fourth Amendment any difference in intrusiveness between an entry to search and an entry to arrest is merely a difference of degree rather than one of kind. Payton v. New York, supra. Both entries involve the abridgement of house privacy. Since the Fourth Amendment protects against warrantless and nonconsensual searches of a home in the absence of exigent circumstances, the same logic applies to entries to effectuate an arrest. "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. at 590, 100 S.Ct. at 1382, 63 L.Ed.2d at 653. This rule is no stranger to Colorado jurisprudence. In 1971 this court held that although police officers have probable cause to believe a suspect committed a crime, nevertheless they may not enter a private residence to effect an arrest in the absence of exigent circumstances. People v. Moreno, 176 Colo. 488, 497, 491 P.2d 575, 580 (1971); see also People v. Williams, Colo., 613 P.2d 879 (1980); People v. Coto, Colo., 611 P.2d 969 (1980).

In the instant case the district court's findings, based on the evidence...

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