People v. Bostic

• Decision Date: 04 May 2006
• Docket Number: No. 03CA2114.,03CA2114.
• Citation: 148 P.3d 250
• Parties: The PEOPLE of the State of COLORADO, Plaintiff-Appellee, v. Julie A. BOSTIC, Defendant-Appellant.
• Court: Colorado Court of Appeals

Page 250

148 P.3d 250

The PEOPLE of the State of COLORADO, Plaintiff-Appellee, v. Julie A. BOSTIC, Defendant-Appellant.

No. 03CA2114.

Colorado Court of Appeals, Div. III.

May 4, 2006.

Certiorari Denied October 16, 2006.

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John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

LOEB, J.

Defendant, Julie A. Bostic, appeals the judgment of conviction entered upon jury verdicts finding her guilty of eight counts of possession and possession with intent to distribute controlled substances and marijuana. We affirm.

Four uniformed police officers responded to a motel based upon a complaint of suspicious drug activity in a room registered to defendant. Because the police did not have probable cause to obtain a search warrant for the room, they used a tactic known as "knock and talk," where police first ask the occupant for permission to enter the room and then ask for permission to search for drugs or other contraband.

The police knocked on the door to the motel room, and defendant answered. One of the officers asked to speak with her. When defendant stepped outside to talk, the officer asked to talk inside the room. Defendant said, "Sure," stepped back, and allowed the four officers to enter the room. Although the evidence was conflicting on whether the police asked for defendant's consent to search the room, there is no evidence in the record that defendant ever consented to a search.

As the police entered the room, one officer saw a man, later identified as defendant's boyfriend, place something in the nightstand drawer and partially close the drawer, leaving an opening of about an inch and a half. The officer walked to the nightstand, and, without moving anything, looked into the drawer and saw a syringe with clear liquid in it, which was later identified as liquid amphetamine. He also saw a partially smoked marijuana cigarette on the nightstand, and there was also a glass marijuana pipe with apparent drug residue in it on the bed. The officer then seized the syringe and handcuffed the boyfriend. Another officer handcuffed defendant. As her boyfriend was handcuffed, defendant stated, "That's mine, it's not his, I have a drug problem."

Incident to the arrests, and based on information provided by the boyfriend, the officers searched the room and found cocaine, methamphetamine, marijuana, and a digital scale. After defendant asked one of the officers to retrieve her purse, the officer did so and found cocaine and marijuana in the purse.

Defendant was charged with eight counts of possession of controlled substances and marijuana and possession with intent to distribute controlled substances and marijuana under §§ 18-18-405 and 18-18-406, C.R.S. 2005. Prior to trial, defendant filed motions to suppress both physical evidence obtained by the police and statements she made in the motel room and at the police station. After a pretrial hearing, the trial court denied the motions to suppress.

A jury convicted defendant on all eight counts, and the trial court sentenced her to concurrent sentences amounting to six years incarceration in the Department of Corrections and five years parole. This appeal followed.

I.

Defendant contends that the trial court erred by not granting her motion to suppress the syringe, the drugs, and paraphernalia found by the police, and the statements she made in the motel room. Specifically, defendant contends that the trial court erred by finding (1) that she voluntarily consented to the entry of the police into her motel room to speak with her, and (2) that the syringe was validly seized because it was in plain view. We disagree.

The Fourth Amendment to the United States Constitution and article II, section 7, of the Colorado Constitution protect citizens and their homes from unreasonable searches and seizures. People v. Mendoza-Balderama, 981 P.2d 150, 156 (Colo.1999). Absent some recognized exceptions, searches and seizures inside a home without a warrant are presumptively unreasonable. People v. Mendoza-Balderama, supra, 981 P.2d at 156.

The "fruit of the poisonous tree" doctrine provides that evidence derived from or acquired by the police through unlawful means, such as an illegal entry, is inadmissible in criminal prosecutions. Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963); People v. Schrader, 898 P.2d 33, 37 (Colo.1995).

Appellate review of a ruling on a motion to suppress is a mixed issue of law and fact. People v. Pitts, 13 P.3d 1218, 1222-23 (Colo.2000). If competent evidence supports the trial court's findings of fact, we give deference to them, setting them aside only if they are clearly erroneous or unsupported by the record. People v. Platt, 81 P.3d 1060, 1065 (Colo.2004). The trial court's legal conclusions are subject to de novo review. People v. Pitts, supra, 13 P.3d at 1222.

A.

Defendant first contends that the trial court erred by finding that she voluntarily consented to the officers' request to enter and talk with her inside the motel room. We disagree.

It is constitutionally permissible for police officers to knock at the entrance to a residence and seek permission to enter for the purpose of inquiry, and, if the occupant validly consents, the officers may enter without a warrant. People v. Milton, 826 P.2d 1282, 1285 (Colo.1992). Whether an individual's consent to entry was voluntary is a matter of fact to be determined under the totality of the circumstances. People v. O'Hearn, 931 P.2d 1168, 1174 (Colo.1997); People v. Milton, supra, 826 P.2d at 1286. The prosecution must demonstrate by clear and convincing evidence that consent to enter the premises was freely given. People v. O'Hearn, supra, 931 P.2d at 1173. Consent is voluntarily given if it is not the result of duress or coercion, express or implied, or any other form of undue influence exercised against the defendant. People v. Milton, supra.

Here, the trial court found, with record support, that when the officer knocked on the door, defendant answered it; that defendant started to step outside the room to talk; and that, when asked by the officer whether they could speak with her inside, she stepped back, held the door open, and allowed the officers into the room. Further, although the trial court did not make a specific finding concerning any verbal consent by defendant, the record reflects that she responded "[S]ure" to the officers' request to speak with her inside the room. See United States v. Carter, 378 F.3d 584, 589 (6th Cir.2004)("Although a man's home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in as informally as any other guest."). The trial court's findings are neither clearly erroneous nor unsupported by the record. Accordingly, we perceive no error in the trial court's conclusion that defendant voluntarily consented to the officers' entry into the room and their request to talk with her inside.

We decline defendant's request that we adopt the guidelines for police "knock and talk" procedures announced by the Washington Supreme Court in State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998). Our supreme court has provided ample guidance and articulated clear legal standards for determining whether a defendant has voluntarily consented to police entry into his or her home. See People v. Mendoza-Balderama, supra; People v. O'Hearn, supra; People v. Milton, supra. Applying that existing precedent, we conclude that, based on the totality of the circumstances, the trial court did not err in finding that defendant voluntarily consented to the entry of the police into her motel room.

B.

Defendant also contends that, even if consent to enter her motel room was voluntary, the trial court erred by finding that the syringe was in plain view and thus validly seized by the police. Again, we disagree.

A warrantless search and seizure will be found unreasonable unless justified by an established exception to the Warrant Clause of the Fourth Amendment. People v. Pitts, supra, 13 P.3d at 1222. The plain view doctrine is one such exception. People v. Pitts, supra; People v. Dumas, 955 P.2d 60, 63 (Colo.1998). Consent to enter for purposes of inquiry may support seizure of evidence falling within the plain view doctrine. People v. Milton, supra, 826 P.2d at 1284-85.

A police officer, without a warrant, may seize evidence in plain view if the initial intrusion onto the premises was legitimate, if the police had a reasonable belief that the evidence was incriminating, and if the police had a lawful right of access to the object. People v. Pitts, supra, 13 P.3d at 1222; People v. Campbell, 94 P.3d 1186, 1188 (Colo.App.2004). Under the plain view exception to the warrant requirement, "police are not required to close their eyes to any evidence that they plainly see." People v. Pitts, supra, 13 P.3d at 1222; People v. Campbell, supra, 94 P.3d at 1188. The initial intrusion must be within the scope of consent, which is "determined by `objective reasonableness' — what a reasonable person would have understood by the exchange between the officer and the suspect." People v. Dumas, supra, 955 P.2d at 63 (consent to search defendant's motel room for drugs, weapons, or contraband reasonably included search of everything likely to contain those items).

A reasonable belief that evidence is incriminating exists when the incriminating nature of the evidence is immediately apparent to the seizing officer. See People v. Pitts, supra, 13 P.3d at 1222; People v. Campbell, supra, 94 P.3d at 1188. The "immediately apparent" requirement is satisfied if, without further search, police have probable cause to associate an item with criminal activity. People v....