People v. Coke

• Decision Date: 27 April 2020
• Docket Number: Supreme Court Case No. 19SA272
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pamela Kay COKE, Defendant-Appellee.
• Court: Colorado Supreme Court

461 P.3d 508

The PEOPLE of the State of Colorado, Plaintiff-Appellant,

v.Pamela Kay COKE, Defendant-Appellee.

Supreme Court Case No. 19SA272

Supreme Court of Colorado.

April 27, 2020

Attorneys for Petitioner: Clifford E. Riedel, District Attorney, Joshua D. Ritter, Deputy District Attorney, Fort Collins, CO

Attorney for Respondent: Lee E. Christian, P.C., Lee E. Christian, Fort Collins, CO

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 The defendant, Pamela Kay Coke, has been charged with sexual assault on a child. The prosecution filed this interlocutory appeal of the trial court’s order suppressing (1) evidence obtained from Coke’s cell phone and (2) certain statements she made to the police before her formal arrest. We affirm the portion of the trial court’s order suppressing the evidence from Coke’s cell phone, reverse the portion suppressing her statements, and remand the case for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶2 T.F. told police officers that Coke sexually assaulted him in November 2018, when he was fifteen years old. He gave the officers his cell phone, which contained December 2018 text messages from "Pam." In those messages, "Pam" apologized to T.F. (without specifying why) and asked him to take a walk with her so they could talk. The officers decided to contact Coke.

¶3 Two plainclothes officers arrived at Coke’s office. They knocked on the door, and Coke invited them in. After identifying themselves as police officers, they explained that she was not under arrest and did not have to speak with them. She responded that she had retained a lawyer and didn’t want to speak to them without her lawyer present. The officers asked for the lawyer’s contact information so they could attempt to schedule an interview with both her and the lawyer. They also asked her what her phone number was, and she provided it.

¶4 Seeing a cell phone sitting on Coke’s desk, one of the officers informed her that they were going to have to take it as possible evidence. They elaborated that they would hold it until they could obtain a search warrant to examine its contents. Upon confirming that the phone was passcode protected, the officers asked Coke to help them put the phone in airplane mode to preserve its contents. Coke asked how long the officers would need to keep her phone. They explained that they weren’t sure, and that ultimately that decision would be up to the district attorney, but they assured her that the process would go faster if they had her passcode. She gave them the code.

¶5 The officers took the phone, obtained a warrant, and searched the phone’s contents. That search revealed that Coke’s phone was the source of the text messages in question.

¶6 Before trial, Coke moved to suppress her statements made after asserting her right to counsel and the evidence found on her phone. She asserted that (1) the statements were involuntary and taken in violation of her right to counsel, and (2) the search warrant permitted an unconstitutional exploratory search. After a hearing, the trial court concluded that (1) Coke’s statements were taken in violation of her Fifth Amendment right against self-incrimination; (2) the statements were involuntary; and (3) the search warrant was overbroad. Accordingly, the court suppressed the statements and any evidence obtained from the cell phone. The prosecution then brought this interlocutory appeal challenging the suppression order.

II. Analysis

¶7 After identifying the standard of review, we first address the trial court’s Fifth Amendment ruling. Our analysis begins—and essentially ends—with a point about which the court and counsel all agree: Coke was not in custody when she made the statements at issue here. Therefore, she was not entitled to the protections of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the facts here present no other conceivable basis by which the Fifth Amendment privilege against self-incrimination could have attached, Coke had no Fifth Amendment privilege (or corresponding Miranda protection) to assert.

¶8 We then examine whether Coke’s statements were involuntary. On the record before us, we conclude that they were not. While her attempted invocation of her right to remain silent and right to counsel is relevant to voluntariness, it did not prohibit these officers from continuing to speak to her, and it did not automatically render her subsequent statements subject to exclusion. Based on the totality of the circumstances here, Coke’s statements were voluntary.

¶9 Finally, we discuss the Fourth Amendment protections against unreasonable searches and seizures. Because the search warrant encompassed the entire contents of Coke’s cell phone, we conclude that it fell short of the particularity required by the Fourth Amendment.

A. Standard of Review

¶10 A trial court’s suppression ruling presents a mixed question of law and fact; thus, "[w]e accept the trial court’s findings of historic fact if those findings are supported by competent evidence, but we assess the legal significance of the facts de novo." People v. Davis , 2019 CO 24, ¶ 14, 438 P.3d 266, 268 (quoting People v. Burnett , 2019 CO 2, ¶ 13, 432 P.3d 617, 620 ); People v. Glick , 250 P.3d 578, 582 (Colo. 2011) ("We will not substitute our own judgment for that of the trial court unless the trial court’s findings are clearly erroneous or not supported by the record.").

B. Self-Incrimination

¶11 The Fifth Amendment of the United States Constitution applies to the states through the Due Process Clause of the Fourteenth Amendment; it guarantees that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amends. V, XIV, § 1 ; Malloy v. Hogan , 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

¶12 The language of the Fifth Amendment tells us much about the scope of the privilege it bestows: "To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled." Hiibel v. Sixth Judicial Dist. Court , 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). The privilege extends to "official questions put to [a defendant] in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Minnesota v. Murphy , 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (quoting Lefkowitz v. Turley , 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) ). Thus, in the ordinary course, the privilege does not apply outside the context of some legal proceeding in which an individual is being asked to testify against herself. And here, there was no such proceeding at the time Coke sought to assert the privilege.¹

¶13 The privilege also extends to custodial interrogation. To make the privilege more meaningful, the Supreme Court, for decades, has required that law enforcement officers use certain "procedural safeguards" when they subject someone to custodial interrogation. Miranda , 384 U.S. at 444–45, 86 S.Ct. 1602. Among those safeguards is notice of the right to silence. Id . Once that right is invoked, it must be scrupulously honored. Michigan v. Mosley , 423 U.S. 96, 101–04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

¶14 But "this extraordinary safeguard ‘does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.’ " Murphy , 465 U.S. at 430, 104 S.Ct. 1136 (quoting Roberts v. United States , 445 U.S. 552, 560, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) ). This judicial hurdle is significant: "A person is [only] in custody for Miranda purposes if she has been formally arrested or if, under the totality of the circumstances, a reasonable person in the suspect’s position would have felt that her freedom of action had been curtailed to a degree associated with formal arrest." People v. Garcia , 2017 CO 106, ¶ 20, 409 P.3d 312, 317.²

¶15 Yet Coke was not in custody when she made the statements at issue. Defense counsel conceded as much at the suppression hearing, and the trial court found as much when it ruled. And here, no custody means no privilege.

¶16 We conclude that the trial court erred by excluding Coke’s statements based on the privilege against self-incrimination.

C. Voluntariness

¶17 This conclusion, however, does not end our analysis. "The Fifth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, prevents admission of involuntary statements into evidence, regardless of the defendant’s custodial situation, and whether or not the defendant made an inculpatory statement." People v. Medina , 25 P.3d 1216, 1221 (Colo. 2001) ; see also Sanchez v. People , 2014 CO 56, ¶ 11, 329 P.3d 253, 257 (concluding that defendants have a separate due process right prohibiting the use of involuntary statements, even if those statements were not the product of custodial interrogation).

¶18 In analyzing whether an individual’s statements were voluntary, courts must consider the totality of the circumstances "to determine whether the accused’s will was actually overborne by coercive police conduct." Sanchez , ¶ 11, 329 P.3d at 257 ; People v. Wood , 135 P.3d 744, 748 (Colo. 2006) ("The ultimate test of involuntariness is whether a defendant’s will has been overborne.").

¶19 This analysis requires a two-step inquiry. See People v. Zadran , 2013 CO 69M, ¶ 10, 314 P.3d 830, 833. First, the police conduct must have been coercive. See Colorado v. Connelly , 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ("We hold that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment."). Second, the coercive conduct must have played a significant role in inducing the statement. Zadran , ¶ 10, 314 P.3d at 833.

¶20 To determine whether the conduct was coercive, courts generally consider the following,...