People v. Diaz

• Decision Date: 09 September 2002
• Docket Number: No. 02SA156.,02SA156.
• Citation: 53 P.3d 1171
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant. v. Joseph Phillip DIAZ, Defendant-Appellee.
• Court: Colorado Supreme Court

53 P.3d 1171

The PEOPLE of the State of Colorado, Plaintiff-Appellant. v. Joseph Phillip DIAZ, Defendant-Appellee.

No. 02SA156.

Supreme Court of Colorado, EN BANC.

September 9, 2002.

G.F. Sandstrom, District Attorney, Margaret C. Vellar, Deputy District Attorney, Pueblo, Colorado, Attorneys for Plaintiff-Appellant.

Michael S. Emmons, Pueblo, Colorado, Attorney for Defendant-Appellee.

Justice HOBBS delivered the Opinion of the Court.

In this interlocutory appeal, filed pursuant to C.A.R. 4.1, the prosecution appeals the trial court's suppression of blood and hair evidence the Pueblo police obtained from the defendant, Joseph Diaz. We hold that the police violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution by obtaining blood and hair samples through a warrantless search and seizure without a court order pursuant to Crim. P. 41.1. Because no exceptions to the warrant requirement apply, we uphold the trial court's order suppressing the illegally obtained evidence. However, the trial court erred in barring the prosecution—as a sanction for the prior police misconduct—from obtaining an order for nontestimonial identification evidence from the defendant.

I.

On December 18, 2000, Officer Abeyta responded to a sexual assault call. The victim told Officer Abeyta that an ex-boyfriend named Joseph Diaz had twice sexually assaulted her. Officer Oritz, who had also responded to the call, then contacted Diaz. Diaz said he was willing to talk with the police regarding the allegations.

At the police department, Officer Oritz advised Diaz of his Miranda rights. Simply stating that "I did nothing wrong," Diaz did not waive these rights. Officer Oritz asked Diaz if he would voluntarily provide samples of his hair and blood. Diaz refused. Officers then transported Diaz to St. Mary-Corwin Hospital for a sexual assault examination. The officers did not obtain a court order for the collection of nontestimonial evidence from Diaz pursuant to Crim. P. 41.1. At the hospital, a nurse specializing in sexual assaults drew blood and plucked head and pubic hairs from Diaz, but did not comb for foreign hairs or swab to detect foreign bodily fluid.

Subsequently, the prosecution charged Diaz with sexual assault,¹ a class four felony, and violation of a restraining order,² a class two misdemeanor. Diaz filed a motion to suppress the nontestimonial evidence collected at the hospital prior to his arrest. After a hearing, the trial court granted Diaz's motion to suppress the head hair, pubic hair, and blood taken from Diaz at the hospital. As a sanction against police misconduct, the trial court also ruled that it would not entertain any prosecution requests to collect hair and blood samples from Diaz under Crim. P. 41.1 and Crim. P. 16(II)(a).

II.

We hold that the police violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution by obtaining blood and hair samples through a warrantless search and seizure without a court order pursuant to Crim. P. 41.1. Because no exceptions to the warrant requirement apply, we uphold the trial court's order suppressing the illegally obtained evidence. However, the trial court erred in barring the prosecution—as a sanction for the prior police misconduct—from obtaining an order for nontestimonial identification evidence from the defendant.

Crim. P. 41.1 sets forth a procedure for obtaining from the court an order for the taking of nontestimonial identification evidence prior to the defendant's arrest or after arrest and prior to trial:

Crim. P. 41.1. Court Order for Nontestimonial Identification

...

(b) Time of Application. A request for a nontestimonial identification order may be made prior to the arrest of a suspect, after arrest and prior to trial or, when special circumstances of the case make it appropriate, during trial.

(c) Basis for Order. An order shall issue only on an affidavit or affidavits sworn to or affirmed before the judge and establishing the following grounds for the order:

(1) That there is probable cause to believe that an offense has been committed;

(2) That there are reasonable grounds, not amounting to probable cause to arrest, to suspect that the person named or described in the affidavit committed the offense; and

(3) That the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.

(d) Issuance. Upon a showing that the grounds specified in section (c) exist, the judge shall issue an order directed to any peace officer to take the person named in the affidavit into custody to obtain nontestimonial identification. The judge shall direct that the designated nontestimonial identification procedures be conducted expeditiously. After such identification procedures have been completed, the person shall be released or charged with an offense.

Crim. P. 41.1, 12 C.R.S. (2001)(emphasis added). This rule applies to police gathering of nontestimonial identification evidence under authorization by a judicial officer. Lacking a court order, the police proceeded with a warrantless search and seizure of Diaz, and the exclusionary rule applies in this case to suppress the evidence thus obtained.

A. Search and Seizure of Nontestimonial Identification Evidence

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution forbid the unreasonable search and seizure of nontestimonial identification evidence taken from a defendant's body. People v. Harris, 762 P.2d 651, 654 (Colo.1988); People v. Williams, 192 Colo. 249, 257, 557 P.2d 399, 406 (1976)(stating that "because of the special insult to human dignity involved when police seek evidence in body apertures or bodily fluids, special rules restrict internal body searches"). A warrantless search or seizure is presumed unconstitutional. People v. Winpigler, 8 P.3d 439, 443 (Colo.1999). The warrant requirement interposes an impartial member of the judiciary between the law enforcement officer and the person against whom the arrest and/or search is directed. People v. O'Hearn, 931 P.2d 1168, 1173 (Colo.1997).

The exclusionary rule seeks to deter improper police conduct by suppressing evidence obtained by the police in violation of the Fourth Amendment from presentation during the prosecution's case-in-chief. People v. Kazmierski, 25 P.3d 1207, 1213 (Colo. 2001); People v. Morley, 4 P.3d 1078, 1080 (Colo.2000). The exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

When reviewing a suppression order, we defer to the trial court's findings of fact, but analyze the trial court's application of legal standards to those facts de novo. Kazmierski, 25 P.3d at 1210.

1. Warrantless Search of Diaz

The police officers took Diaz to the hospital without his consent and obtained blood and hair samples without a court order. This search and seizure was unconstitutional unless an exception to the warrant requirement applies. At the suppression hearing, Officer Oritz testified that the police's failure to seek a Crim. P. 41.1 order was based on exigent circumstances because of their concern about losing any bodily fluid or hair evidence that may have been transferred from the victim to Diaz. Officer Oritz cited Diaz's clothing change as support for this concern. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the United States Supreme Court held that a warrantless search based upon the existence of probable cause and ready destructibility of the evidence, involving a very limited intrusion undertaken incident to a station house detention, did not violate the Fourth and Fourteenth Amendments. Id. at 296, 93 S.Ct. 2000. In that case, the police scraped under the defendant's fingernails in order to preserve highly evanescent evidence while he was detained at the station house upon probable cause. Cupp, 412 U.S. at 292, 93 S.Ct. 2000.

Here, however, no exigent circumstance existed to justify the warrantless search and seizure. Diaz's blood and hair were not subject to ready disappearance.³ The search of Diaz was not a very limited intrusion, nor was it conducted to obtain readily destructible evidence. Cupp, 412 U.S. at 296, 93 S.Ct. 2000.

The prosecution urges the court to apply our holding in People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), to the present case. In Williams, we held that "[i]n determining whether forced production of bodily fluids is permissible, the appropriate standard is clear indication that evidence of intoxication or drug abuse will be found. Moreover, there must be some indication that evidence of drugs or alcohol, if found, will be relevant to a crime for which the defendant may be charged." Williams, 192 Colo. at 258, 557 P.2d at 406 (emphasis in original). Williams is inapplicable here. Evidence of intoxication or drugs in the human system is ephemeral and can disappear in the time it takes to obtain a court order. Here, the police only obtained Diaz's own hair and blood, items which could easily have been acquired at any time with a court order.

2. Exclusionary Rule and Inevitable Discovery Exception

The trial court applied the exclusionary rule in this case to suppress the evidence seized in violation of the Fourth Amendment and article II, section 7 of the Colorado Constitution. The prosecution argues that the police-obtained evidence should be admitted under the inevitable discovery exception to the exclusionary rule requirement, because the state may obtain blood and hair samples at any time under Crim. P. 41.1 or Crim. P. 16(II)(a). We disagree. The prosecution's ability to...