People v. Allison

• Decision Date: 22 March 2004
• Docket Number: No. 03SA322.,03SA322.
• Citation: 86 P.3d 421
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Keith Paxton ALLISON and Nicole Monique Allison, Defendants-Appelles.
• Court: Colorado Supreme Court

86 P.3d 421

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Keith Paxton ALLISON and Nicole Monique Allison, Defendants-Appelles.

No. 03SA322.

Supreme Court of Colorado, En Banc.

March 22, 2004.

David J. Thomas, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, First Judicial District, Golden, Colorado, Attorney for Petitioner.

David A. Martinez, Denver, Colorado, Attorney for Keith Paxton Allison.

Dennis J. Jacobson, Lakewood, Colorado, Attorney for Nicole Monique Allison.

Justice HOBBS delivered the Opinion of the Court.

In this interlocutory appeal under C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2003), the prosecution challenges an order of the Jefferson County District Court granting the defendants' motion to suppress evidence. The order suppressed evidence that a police officer seized during warrantless reentries into a residence and pursuant to a search warrant obtained on the basis of evidence discovered in the residence during the warrantless reentries. The police went to the residence after a 911 hang-up call. A woman answered the door, revealed that a domestic dispute had occurred, and eventually let an officer inside. The officer removed the woman and man involved in the altercation from the residence and then reentered the residence without a search warrant.

The trial court found that neither probable cause, exigent circumstances, nor an emergency existed to support the warrantless reentries and suppressed all the evidence resulting therefrom. The evidence supports the trial court's findings of fact and conclusions of law. The circumstances in this case did not invoke the emergency aid exception to the Fourth Amendment's warrant requirement to justify reentry and further investigation of the Allison home. Accordingly, we affirm the trial court's suppression order.

I.

On the morning of February 28, 2003, Officer Metcalfe from the Edgewater Police Department was dispatched to a residence in Edgewater, Colorado after a 911 hang-up call. When Officer Metcalfe arrived at the residence, he knocked on the door and Mrs. Allison answered. Mrs. Allison, one of the defendants, appeared nervous and out of breath. Officer Metcalfe saw blood on or around her nose. The officer asked Mrs. Allison if there was a problem. She said that everything was "okay" and that she just had an accident. She explained that she had tried to call back the 911 operator to tell them that the initial call was an accident.

Officer Metcalfe asked Mrs. Allison whether anyone else was in the residence. Initially, she said that no one else was present. However, during this discussion, Mrs. Allison appeared nervous and continuously glanced over her shoulder to look back into the home. Officer Metcalfe asked her several more times whether someone else was inside. Officer Metcalfe testified that he was concerned for the safety of Mrs. Allison as well as others and asked Mrs. Allison whether she had been involved in an altercation. Mrs. Allison said nothing had happened at the home.

Officer Metcalfe asked if he could enter the residence several times and Mrs. Allison refused, stating that no one else was inside and there was no altercation. Officer Metcalfe informed Mrs. Allison that he saw blood on her face and that she had a bloody nose, at which point Mrs. Allison admitted that she was in a fight with her husband, Mr. Allison. Officer Metcalfe asked again whether he could enter. Mrs. Allison repeated that no one else was inside. Finally, after a long discussion, Mrs. Allison agreed to let him enter the residence. The trial court found, and no party disputes, that this initial entry was either consensual or was justified because there was an emergency. Once inside the residence, Officer Metcalfe observed that the home was in total disarray. In the front living room, there was glass on the floor, one chair knocked over, papers and curio items on the floor, disheveled furniture, a large picture with broken glass, and broken dishes. While Officer Metcalfe was in the living room with Mrs. Allison, she turned around and walked towards the back of the residence. Officer Metcalfe told her to stop but she refused. Officer Metcalfe followed her into another room where he encountered Mr. Allison, the other defendant in this case, walking down the stairs. Mr. Allison had a swollen and bloody bottom lip. From this vantage point, Officer Metcalfe observed the kitchen, dining room, and staircase. He testified that everything he could see was in disarray; there were broken vases and other broken items on the floor.

Another officer, Officer Olivett, arrived at the residence after Officer Metcalfe had entered the home. Officer Olivett removed Mrs. Allison from the home because she was impeding Officer Metcalfe's effort to communicate with Mr. Allison by screaming and pleading that he not be arrested. Once Mrs. Allison was removed from the home, Officer Metcalfe asked Mr. Allison what had occurred inside the residence. Mr. Allison informed Officer Metcalfe that an altercation had occurred between him and Mrs. Allison. He identified Mrs. Allison as his wife and explained that his injured lip and the broken items in the home were a result of their fight.

Officer Metcalfe asked if anyone else was in the residence. Mr. Allison stated that a man lived at the residence in one of the upstairs bedrooms, but that he did not know whether he was home. Officer Metcalfe testified that he did not fully believe either Mr. or Mrs. Allison as to whether anybody else was injured in the residence or involved in the altercation because Mrs. Allison had lied to him multiple times, and Mr. Allison, "was kind of nonchalant" and did not "want to disclose why they were arguing."

Officer Metcalfe took Mr. Allison into custody and removed him from the home. Officer Metcalfe stepped outside the residence and Officer Olivett secured Mr. Allison in a patrol car. Then, Officer Metcalfe reentered the residence without a warrant or permission from the Allisons. Upon reentering, he called out "Edgewater police officer—is anyone there?" Although, as it turns out, there was another person in the home, no one responded. Officer Metcalfe testified that even though no one answered, he thought somebody could be in the home. Thus, he looked around the downstairs, did not see anyone, and then proceeded upstairs to see if others were injured. Officer Metcalfe testified as follows:

Well, I immediately proceeded upstairs because that's where Keith Allison had indicated the person would be if they were home. I felt comfortable that I had been able to observe the downstairs already; later to find out that there were portions that I hadn't seen. But at that point, I thought I—I thought I had. So I went upstairs, assuming that there was possibly somebody upstairs injured, seeing as Mr. Allison had walked down stairs.

Once upstairs, Officer Metcalfe noticed that a hallway led to three bedrooms. Officer Metcalfe walked down the hallway and saw that a bedroom door was opened. He looked inside the room and observed a bag of marijuana and a "water bong." He did not seize the evidence at that time, because according to his testimony, he had not "completed checking the home [for his] original reason, trying to find if there was anybody else in the home injured, in need of care or police assistance." Officer Metcalfe searched the rest of the upstairs and then walked downstairs.¹ While he was on his way outside the residence, he noticed a door in the room where he had originally contacted Mr. Allison. He opened the door and found the third individual, made contact with him, had a brief discussion with him, and then took him into custody. Officer Metcalfe took the individual outside and handed him over to Officer Olivett. After Officer Metcalfe retrieved a camera from his patrol car, he reentered the residence again and took pictures of the premises. He photographed the first floor and then went upstairs and photographed the marijuana and the water bong that he had seen the first time he went upstairs. He then seized this evidence without a warrant and went back outside. Officer Metcalfe spent a total of one hour at the residence from the initial entry through the reentries to when he left the residence after taking the photographs.

After the two reentries, Officer Metcalfe informed Mr. Allison that he had retrieved marijuana from the home and requested Mr. Allison's permission to return inside so he could further search the home. Mr. Allison refused permission, so Officer Metcalfe locked the residence, released the third individual, and transported Mr. and Mrs. Allison to the police station. At the station, Officer Metcalfe called the paramedics for "liability" reasons to examine Mr. and Mrs. Allison for injuries. He also obtained a search warrant based on the information gained from reentry into the residence, and conducted a thorough search of the residence and seized other items.

The prosecution charged both Mr. and Mrs. Allison with possession with intent to distribute marihuana, § 18-18-406(8)(b)(I), 6 C.R.S. (2003), possession of eight ounces or more of marihuana, § 18-18-406(4)(b)(I), 6 C.R.S. (2003), and possession of drug paraphernalia, § 18-18-428(1), 6 C.R.S. (2003). Mr. Allison was also charged with third-degree assault, § 18-3-204, 6 C.R.S. (2003), and criminal mischief, § 18-4-501, 6 C.R.S. (2003). Both Mr. and Mrs. Allison pleaded not guilty and each filed a motion to suppress all evidence the police found and confiscated from their home, including all photographs taken and observations or testimony related to such evidence, except those observations seen through the front door from the outside of the residence.

On October 24, 2003, following an evidentiary hearing, the trial court found that either consent or an emergency existed to justify the initial entry into the residence, but concluded that...