People v. Burola

• Decision Date: 29 March 1993
• Citation: People v. Burola, 848 P.2d 958 (Colo. 1993)
• Docket Number: 92SC33
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Jesus BUROLA, Respondent.
• Court: Colorado Supreme Court

Page 958

848 P.2d 958

The PEOPLE of the State of Colorado, Petitioner, v.Jesus BUROLA, Respondent.

No. 92SC33.

Supreme Court of Colorado En Banc.

March 29, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol.Gen., Denver, Alexander M. Hunter, Dist. Atty., Twentieth Judicial Dist., Boulder, Bryan W. Quiram, Sp. Asst. Atty. Gen., Deputy Dist. Atty., Boulder, for petitioner.

Eisner & Schild, Peter Schild, Boulder, for respondent.

Justice ERICKSONdelivered the Opinion of the Court.

The court of appeals in People v. Burola, No. 90CA1908(Colo.App.Nov. 21, 1991), reversed the judgment of conviction and the sentences imposed on the respondent, Jesus Burola, for conspiracy to distribute and sell cocaine, and for distribution and sale of cocaine.The trial court had denied Burola's motion to suppress cocaine and money seized by the police when a codefendant was arrested.The court of appeals subsequently reversed the trial court based on its separate conclusions that the inevitable discovery exception to the exclusionary rule did not apply to primary evidence and that the admission of the evidence was not harmless beyond a reasonable doubt.We granted certiorari and now affirm, and return the case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.

I

On October 26, 1989, a police informant placed a call from the police department to Burola's girlfriend and arranged to buy two ounces of cocaine at her apartment that afternoon.¹The police wired the informant with a one-way transmitter so that they could monitor the controlled drug purchase and conduct surveillance.Shortly after the informant arrived at the apartment, Ricardo Baca, the alleged supplier of the cocaine, appeared and entered the apartment through the back door.

The police became concerned about the safety of the informant because the transmitter worked only intermittently and the individuals in the apartment were speaking primarily Spanish.The police officers knocked on the door of the apartment, and after Burola's girlfriend denied them entrance, they admittedly entered the apartment unlawfully.As the police officers made their entry into the apartment, Baca jumped out of a bedroom window into the backyard.Baca was immediately arrested.The police officers searched him and discovered 41.9 grams of cocaine and the money used to purchase the cocaine in his pockets.The police also arrested Burola and his girlfriend, and seized additional cocaine they discovered during a post-arrest search of the apartment.

At a pretrial hearing, Burola moved to suppress the evidence seized from Baca and from inside the apartment.The prosecution stipulated that it would not use any of the items seized inside the apartment.The prosecution also stipulated that the initial entry into the apartment was unlawful and that Baca had jumped out of the window because of the unlawful entry.The prosecution claimed, however, that the evidence seized from Baca was admissible under either the inevitable discovery or independent source exceptions to the exclusionary rule.²

The trial court agreed that the evidence seized from Baca was admissible under the inevitable discovery exception to the exclusionary rule and denied Burola's motion to suppress the evidence.A jury subsequently convicted Burola of conspiracy to distribute and sell 28 grams of cocaine, and distribution and sale of 28 grams of cocaine, pursuant to section 18-18-105, 8B C.R.S. (1986).

Burola appealed the trial court's denial of his motion to suppress the evidence seized from Baca.The court of appeals found that the evidence was primary evidence and that the inevitable discovery exception did not apply to primary evidence.Based on that conclusion and its finding that the admission of the evidence was not harmless beyond a reasonable doubt, the court of appeals reversed the trial court.

We granted certiorari to review the decision of the court of appeals.We hold that the inevitable discovery exception to the exclusionary rule applies to both primary evidence and to secondary evidence, but conclude that the inevitable discovery exception is not applicable to the facts of this case.We agree with the court of appeals conclusion that the admission of the cocaine and money in this case was not harmless beyond a reasonable doubt.

II

A

The exclusionary rule is a judicially created remedy designed primarily to deter unlawful searches and seizures by the police.People v. Fournier, 793 P.2d 1176, 1179(Colo.1990);People v. Schoondermark, 759 P.2d 715, 718(Colo.1988);e.g., United States v. Calandra, 414 U.S 338, 94 S.Ct. 613, 38 L.Ed.2d 561(1974).Under the exclusionary rule, evidence that has been obtained in violation of the Fourth Amendment must be suppressed from presentation during the prosecution's case-in-chief.Fournier, 793 P.2d at 1179;Schoondermark, 759 P.2d at 718;see generallyUnited States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984).

Primary evidence (also referred to as "direct" evidence), is evidence that is a direct product of an unlawful search, while secondary evidence (also referred to as "derivative" or "indirect" evidence) is evidence that is subsequently obtained from the primary evidence.SeeSchoondermark, 759 P.2d at 718(citingNardone v. United States, 308 U.S. 338, 340-41, 60 S.Ct. 266, 267-68, 84 L.Ed. 307(1939);Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92, 40 S.Ct. 182, 182-83, 64 L.Ed. 319(1920)).³The exclusionary rule applies to both the unlawfully obtained evidence itself and also to secondary evidence that is obtained from the primary evidence.Schoondermark, 759 P.2d at 718.

In Schoondermark, we recognized, however, that not all evidence obtained in violation of the Fourth Amendment must be suppressed under the exclusionary rule.Id.Schoondermark stated, "[t]hree doctrines, which have been labeled independent source, attenuation, and inevitable discovery, have been recognized as exceptions to the exclusionary rule and justify admission of evidence even though it is derived from information obtained in violation of the fourth amendment."Id.While Schoondermark involved the independent source exception to the exclusionary rule, in this case, we address the inevitable discovery exception.

B

The initial question is whether the court of appeals properly interpreted the language in Schoondermark to mean that the inevitable discovery exception to the exclusionary rule applies only to secondary evidence.In our view, the court of appeals erred in stating that the inevitable discovery exception applies only to secondary evidence.At no point in our general discussion of the three exceptions to the exclusionary rule in Schoondermark did we declare such a limitation.Nor have we approved of such a restriction in any other case.

Similarly, in adopting the inevitable discovery exception to the exclusionary rule in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377(1984), the United States Supreme Court did not address the application of the exception to primary evidence rather than to secondary evidence.The reasoning of Nix, however, suggests that the Court would make no distinction between primary and secondary evidence.Commonwealth v. O'Connor, 406 Mass. 112, 546 N.E.2d 336, 339(1989);see alsoUnited States v. Pimentel, 810 F.2d 366, 368-69(2d Cir.1986).While the inevitable discovery exception has been applied most frequently to secondary evidence, there is no logical reason not to apply the exception to primary evidence.SeeStephen H. LaCount & Anthony J. Girese, The "Inevitable Discovery" Rule, an Evolving Exception to the Constitutional Exclusionary Rule, 40 Alb.L.Rev. 483, 507(1976).

In fact, numerous courts specifically have refused to limit the inevitable discovery exception to secondary evidence.SeeUnited States v. Whitehorn, 829 F.2d 1225, 1232(2d Cir.1987)(rejecting distinction between direct and indirect evidence), cert. denied, 487 U.S. 1237, 108 S.Ct. 2907, 101 L.Ed.2d 939(1988);Pimentel, 810 F.2d at 369(holding that inevitable discovery exception applies to both direct and indirect products of the unlawful search);O'Connor, 406 Mass. 112, 546 N.E.2d at 339(concluding that application of the inevitable discovery exception was not automatically precluded for primary evidence).Other courts, while not stating that the inevitable discovery exception also applies to primary evidence, have concluded that primary evidence was admissible under the exception that otherwise would have been excluded.See, e.g., United States v. Mancera-Londono, 912 F.2d 373(9th Cir.1990);United States v. McConnell, 903 F.2d 566(8th Cir.1990), cert. denied, 499 U.S. 938, 111 S.Ct. 1393, 113 L.Ed.2d 449(1991);State v. Vincik, 436 N.W.2d 350(Iowa1989);Clough v. State, 92 Nev. 603, 555 P.2d 840(1976).

Accordingly, we conclude that the inevitable discovery exception to the exclusionary rule applies to both primary and secondary evidence.Based on our conclusion, however, we must determine whether the trial court properly found that the evidence the police seized from Baca is encompassed within the inevitable discovery exception.

C

The inevitable discovery exception to the exclusionary rule allows evidence initially discovered in an unconstitutional manner to be received, but only if the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means.Nix, 467 U.S. at 444, 104 S.Ct. at 2509;Schoondermark, 759 P.2d at 718;People v. Briggs, 709 P.2d 911(Colo.1985);see also4 Wayne R. LaFave, Search and Seizure§ 11.4(a), at 378 (2d ed. 1987)(stating that the inevitable discovery exception asks whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully).The fact that makes...