People v. Arapu
| Decision Date | 04 June 2012 |
| Docket Number | No. 11SA326.,11SA326. |
| Citation | 283 P.3d 680,2012 CO 42 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellant v. Andrian ARAPU, Defendant–Appellee. |
| Court | Colorado Supreme Court |
OPINION TEXT STARTS HERE
Martin C. Beeson, District Attorney, Ninth Judicial District Arnold P. Mordkin, Chief Deputy District Attorney, Aspen, Colorado, Attorneys for Plaintiff–Appellant.
John Van Ness, Kathy Goudy, Carbondale, Colorado, Attorneys for Defendant–Appellee.
¶ 1 The prosecution brings this interlocutory appeal pursuant to section 16–12–102(2), C.R.S. (2011), and C.A.R. 4.1(a) seeking to reverse the trial court's ruling suppressing evidence obtained from the search of the apartment of the defendant, Andrian Arapu.
¶ 2 Federal Immigration and Customs Enforcement (“ICE”) agents sought to contact Arapu, suspecting he was in the country illegally. In accordance with their standard protocol, ICE requested assistance from local law enforcement, in this case, the Aspen Police Department (“APD”). Detective Chi was among the APD officers providing assistance. When federal agents contacted Arapu, he refused to give them permission to enter his apartment, but he consented to Detective Chi entering the apartment to monitor a woman already inside. When the federal agents were arresting Arapu, he gave his consent to Detective Chi to gather his keys and phones, and to secure the apartment.
¶ 3 The woman asked to leave the apartment so that she could go to work, and Detective Chi, while still in the apartment, asked for her name, date of birth, and identification. When she could not provide identification, one federal agent entered the apartment to question her. At this point, another APD officer entered the apartment, observed a firearm, and alerted those present of her discovery. Other federal agents then entered the apartment to take pictures of the firearm. When the federal agents had finished their investigation, some twenty-five minutes after Arapu's arrest, Detective Chi gathered Arapu's keys and phones in preparation to leave and lock up the apartment. In the process, Detective Chi observed an open bag on the floor that appeared to contain cocaine. Soon thereafter, Detective Chi prepared an affidavit in support of a search warrant. The firearm and the drug-related evidence were seized in connection with the execution of the search warrant.
¶ 4 Arapu moved to suppress the evidence. The trial court granted the motion, ruling that Detective Chi had exceeded the scope of Arapu's consent by (1) asking the woman for identification while they were both still in the apartment, and (2) by remaining in the apartment while the federal agents conducted their investigation. The court concluded that because Detective Chi was in the apartment unlawfully when he observed the open bag and the firearm, any information regarding those observations had to be excised from the affidavit supporting the search warrant, which in turn rendered the warrant unsupported by probable cause.
¶ 5 We now reverse. We find that Arapu consented to Detective Chi's presence in his apartment to monitor the woman inside, and that such consent would reasonably include asking her for identifying information. Similarly, we find that Arapu consented to Detective Chi remaining in the apartment to gather Arapu's keys and phones, and to secure the apartment, and such consent would reasonably include remaining in the apartment until the federal agents had left. We, accordingly, find that the trial court erred in finding Detective Chi was unlawfully in the apartment when he observed the open bag containing drugs, and therefore reverse the trial court's suppression of the drug-related evidence. Because the prosecution concedes in its briefing to us that the discovery of the firearm was unlawful, we determine whether the affidavit would support a finding of probable cause if the firearm portions were excised, but with the observation of the open bag containing drugs included. We hold that it does, and that the firearm would have been discovered in a search pursuant to the redacted affidavit. We therefore reverse the suppression order with regard to the firearm as well.
¶ 6 The prosecution charged Arapu with possessing a controlled substance, intending to distribute a controlled substance, inducing another person to distribute a controlled substance, and possessing a deadly weapon while committing the controlled substance crimes. Arapu claimed the police illegally entered his home, and he sought to suppress all observations made and evidence obtained at his apartment. At the suppression hearing, the trial court found the following facts based on testimony of three law enforcement officers, a woman in Arapu's apartment at the time of his arrest, and Arapu.
¶ 7 On April 6, 2011, ICE Special Agents Carter, Hipps, and Turza sought to contact Arapu. ICE suspected Arapu was in the country unlawfully and intended to arrest him without a warrant. ICE agents typically request assistance from local law enforcement for safety purposes when contacting local residents, and, in this case, the APD provided Detective Chi, Officer Ward, and Officer Olson.
¶ 8 Arapu answered his door when Agent Carter knocked, but he refused to let any law enforcement officers enter his apartment. Arapu and Agent Carter talked outside of the apartment for several minutes before Agent Carter asked permission to retrieve Arapu's immigration documents from inside the apartment. Arapu refused Agent Carter's request, but suggested that a woman named Elena Inozemtseva—who, unbeknownst to Agent Carter, was currently inside the apartment—could retrieve the immigration documents. Perceiving a risk to officer safety, Agent Carter immediately informed Arapu that “either we go in or she comes out.” In response, Arapu invited Detective Chi into his apartment, apparently because Arapu knew Detective Chi from a prior incident where Detective Chi treated him fairly.
¶ 9 The conversation between Arapu and Agent Carter continued, with Agent Carter outside the apartment, Arapu just inside the apartment, and Detective Chi further inside the apartment. Agent Carter asked Arapu if there were weapons in the apartment, and Arapu admitted that an air pistol was located in the kitchen. Detective Chi asked Arapu if he could pick up the air pistol, which he did, confirming that it was an air pistol. At this point, Detective Chi observed a fifty-round box of .38 caliber Remington ammunition, suggesting there might be a handgun in the apartment.
¶ 10 Approximately fifteen to twenty minutes after knocking on Arapu's door, Agent Carter took Arapu into custody. Arapu faced the apartment and asked Inozemtseva for his keys and phones while Agent Carter handcuffed him. Detective Chi then offered to bring Arapu's keys and phones to him, and to secure the apartment. Arapu replied “thanks” or “ok” in response to Detective Chi's invitation. Arapu did not ask Detective Chi to leave at that time, or place any temporal limitation on the amount of time Detective Chi could remain in the apartment.
¶ 11 Detective Chi remained inside the apartment immediately after Arapu's arrest. Inozemtseva indicated she needed to leave for work, but before she left, Detective Chi asked for her name, date of birth, and identification. Detective Chi relayed this information to Agent Hipps, who then entered the apartment to question Inozemtseva for approximately four to nine minutes before deciding to take Inozemtseva into custody because she concluded that Inozemtseva was unlawfully present in the country. The entire exchange between Detective Chi, Agent Hipps, and Inozemtseva lasted between five to ten minutes.
¶ 12 While Inozemtseva was being handcuffed, Officer Olson stepped inside the apartment. She immediately directed Detective Chi's attention to a firearm partially covered by a hat on a shelf next to the apartment door where Arapu had been standing while he spoke with Agent Carter. Then, Agents Carter and Turza entered the apartment to take pictures of the firearm and spoke about whether the state or federal government would prosecute Arapu. About the same time—that is, approximately five to ten minutes after Arapu was arrested—Detective Chi gathered Arapu's keys and phones, and, while preparing to leave and secure the unit, he noticed an open bag under the coffee table on the floor. The bag appeared to contain drugs and drug paraphernalia. The drugs appeared to be cocaine.1
¶ 13 Detective Chi obtained a search warrant for Arapu's apartment later that day. During the search, law enforcement seized 39.9 grams of cocaine, a loaded .38 caliber revolver, multiple plastic baggies (including some with residue), a scale, screens and grinding equipment, baggies and bottles containing suspected marijuana, and co-mingled prescription drugs in an unlabeled plastic bottle.
¶ 14 Arapu moved to suppress all of the evidence. The trial court granted the suppression motion, suppressing the firearm and drug-related evidence. In its written order, the trial court concluded the prosecution proved Arapu “invited” Detective Chi into his apartment, and that Arapu voluntarily accepted Detective Chi's offer to take his keys and phones, and to secure the apartment. Addressing the breadth of Arapu's consent under Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the trial court then concluded that Detective Chi had exceeded the scope of Arapu's consent by asking Inozemtseva for identification and by remaining in the apartment while the federal agents conducted their investigation. Because Detective Chi exceeded the scope of Arapu's consent, the trial court concluded he was not lawfully present in the apartment when he saw the cocaine and the firearm under the hat.
¶ 15 The prosecution then filed this interlocutory appeal, and we now reverse.
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