People v. Deitchman, 84SA16

CourtSupreme Court of Colorado
Citation695 P.2d 1146
Docket NumberNo. 84SA16,84SA16
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jerry M. DEITCHMAN, Defendant-Appellant.
Decision Date11 February 1985

Duane Woodard, Atty. Gen., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, Steven Katzman, Special Deputy Public Defender, Littleton, for defendant-appellant.


The defendant, Jerry Deitchman, appeals his convictions of first-degree sexual assault, second-degree kidnapping, and attempted second-degree kidnapping. §§ 18-3-402; 18-3-302; and 18-2-101, 8 C.R.S. (1978). As the sole ground for reversal, defendant claims that the district court improperly admitted evidence seized from his residence and automobile pursuant to defective warrants.

During a ten-day period in 1981, the Denver Police Department received reports from four teenage girls of separate assaults and sexual attacks that occurred in the Lincoln High School area. Each victim described her attacker as a male who was approximately twenty years old and who was between five foot seven and five foot nine inches in height. In addition, all four victims stated that their assailant drove a small, light-colored automobile. Two of the victims stated that the assailant threatened them with a broken bottle, shoved them into his car, and forced them to perform fellatio. One of the victims told the police that her assailant wore a pair of size eight, white, Nike tennis shoes with a neutral stripe and black shoe laces. She reported that the name "Janet" was written on the inside of the left shoe. Another victim stated that she had seen a red bandana hanging from the rear view mirror of her attacker's car. Two of the victims identified the license plate on the assailant's automobile as CN-4714.

Records from the Colorado Motor Vehicle Department disclosed that license plate number CN-4714 was issued for a 1971 Toyota registered to Jerry Deitchman. The police obtained a photograph of Deitchman from the Denver Police Department's Identification Bureau and prepared a photographic display that included Deitchman's photograph. After viewing the photograph array, three of four victims identified Deitchman as their assailant. The police were unable to locate Deitchman until they contacted his employer and learned that he had moved to 3300 West Ohio Avenue in Denver.

On November 10, 1981, two Denver police detectives, acting pursuant to a Crim.P. 41.1 court order, went to the defendant's residence for the purpose of obtaining his presence in a physical lineup. When the police arrived at the defendant's residence, they were led to an upstairs bedroom where the defendant was sleeping. While in the bedroom, a police officer noticed a pair of white high-topped tennis shoes in plain view on the bedroom floor. When the defendant requested that his wife obtain his shoes for him, he specifically asked for shoes other than the tennis shoes. The defendant was taken into custody and transported to the police station for a lineup. At the lineup, three of the four victims again identified Deitchman as their assailant. Deitchman was then arrested and advised of his Miranda rights.

Following Deitchman's arrest, Detective Foster secured separate warrants to search Deitchman's car and home at 3300 West Ohio Avenue. The affidavit prepared by Detective Foster set forth in detail the results of the investigation and identified 3300 West Ohio Avenue as the place to be searched. Among the items sought to be seized were a pair of Nike tennis shoes, a red bandana, and other clothing that was believed to be at the defendant's residence at 3300 West Ohio Avenue. Detective Foster, however, inadvertently failed to allege facts in the affidavit that would link Deitchman to the residence that was to be searched, although the address was included in the affidavit. Detective Foster presented the affidavit to a judge, who determined that it established probable cause and issued both search warrants. Relying on the warrants, the police searched Deitchman's residence and his automobile. The police found the size eight white Nike tennis shoes with a neutral stripe, black laces, and the name "Janet" written on the left shoe in a closet. The police also recovered a red bandana from the defendant's home and seized a second bandana from the defendant's car.

At the suppression hearing, the defendant sought to suppress the evidence seized during the search, claiming that the affidavit in support of the warrants failed to establish probable cause as required by the United States and Colorado Constitutions. U.S. Const. amend. IV; Colo. Const. art. II, § 7. The district court found the affidavit to be constitutionally defective, but refused to suppress the evidence in light of the police officer's "good faith" and the "totality of all the evidence." The court concluded that the detective's failure to link the defendant to the location specified in the affidavit constituted a "good faith mistake" under section 16-3-308, and that the exclusionary doctrine should, therefore, not be invoked. A jury subsequently found the defendant guilty of two counts of first-degree sexual assault, two counts of second-degree kidnapping, and one count of attempted second-degree kidnapping.

In our view, the defendant's conviction must be affirmed since reversible error did not occur. Four members of the court are of the opinion that the "good faith" exception created by section 16-3-308, 8 C.R.S. (1984 Supp.), does not apply. Because no concurring opinion dispositive of this case is supported by a majority of the court, separate concurrences follow in order of seniority of the author.

ERICKSON, Chief Justice, concurring:


The sole issue presented for our consideration is whether the district court erred in refusing to suppress the evidence seized pursuant to the warrants in light of the deficiencies in the affidavit. 1

In rejecting the defendant's motion to suppress the evidence, the district court relied exclusively on section 16-3-308, 8 C.R.S. (1984 Supp.), Colorado's statutory "good faith" exception to the exclusionary rule. Section 16-3-308 provides in pertinent part:

(1) Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as defined in section 18-1-901(3)(1), C.R.S., as a result of a good faith mistake or of a technical violation.

(2) As used in subsection (1) of this section:

(a) "Good faith mistake" means a reasonable judgmental error concerning the existence of facts which if true would be sufficient to constitute probable cause.

(b) "Technical violation" means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.

On appeal, the defendant claims that section 16-3-308 is not applicable to the type of error committed by the police officer in this case, and that the statute violates article II, section 7 and article III of the Colorado Constitution. I find both arguments to be unpersuasive.

A. Application of Section 16-3-308

The General Assembly has broad powers under article III of the Colorado Constitution and may enact laws not expressly or impliedly prohibited by the United States or Colorado Constitutions. People v. Y.D.M., 197 Colo. 403, 593 P.2d 1356 (1979); Prudential Insurance Co. v. Hummer, 36 Colo. 208, 84 P. 61 (1906). In determining whether section 16-3-308 conflicts with the United States Constitution, the exclusionary rule must be examined as federal constitutional doctrine.

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court held for the first time that the exclusionary rule developed in the federal courts was binding on the states. Prior to Mapp, state courts had been free to employ remedies other than the exclusionary rule to enforce fourth amendment guarantees. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed 1782 (1949). In Mapp, however, a divided Supreme Court overruled Wolf and held that prospectively "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." 367 U.S. at 655, 81 S.Ct. at 1691. Writing for a plurality of four, 2 Justice Clark described the exclusionary rule as an "essential part" of the privacy right embodied in the fourth amendment, and noted that the remedy was therefore enforceable against the states through the due process clause of the fourteenth amendment. 367 U.S. at 656, 81 S.Ct. at 1692. 3

Since Mapp, the Supreme Court has restricted the application of the exclusionary rule in several areas of fourth amendment law. 4 In general, the Court has refused to apply the exclusionary rule in cases where the deterrent objective of the rule cannot be achieved. Despite the recent limitations, however, the Supreme Court has not retreated from its holding in Mapp that the exclusionary rule is binding on the states. 5 The supremacy clause of the United States Constitution therefore prohibits a state legislature from enacting legislation that is contrary to or inconsistent with the United States Supreme Court's directives on when the exclusionary rule must be invoked. U.S. Const. art. VI, § 2. However, a state may enact legislation that is consistent or coextensive with the constitutional limitations imposed on the exclusionary rule by the Supreme Court. Consistent legislative limitations do not violate federal constitutional standards. See generally Bivens v. Six Unknown Named Agents, 403 U.S. 388, 422-24, 91 S.Ct. 1999, 2017-19, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting) (criticizing the exclusionary rule for...

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