People v. Glick

• Decision Date: 25 April 2011
• Docket Number: No. 10SA367.,10SA367.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellantv.Frank Daniel GLICK, II, Defendant–Appellee.
• Court: Colorado Supreme Court

250 P.3d 578

The PEOPLE of the State of Colorado, Plaintiff–Appellant

v.Frank Daniel GLICK, II, Defendant–Appellee.

No. 10SA367.

Supreme Court of Colorado, En Banc.

April 25, 2011.

Bill Thiebaut, District Attorney, Tenth Judicial District, Anthony Marzavas, Chief Deputy District Attorney Pueblo, Colorado, Attorneys for Plaintiff–Appellant.Douglas K. Wilson, Public Defender, Kim Karn, Deputy Public Defender Pueblo, Colorado, Attorneys for Defendant–Appellee.Chief Justice BENDER delivered the Opinion of the Court.

I. Introduction

The prosecution brings this interlocutory appeal pursuant to section 16–12–102(2), C.R.S. (2010) and C.A.R. 4.1 seeking to reverse the trial court's ruling suppressing evidence, observations, and statements obtained from the search of the defendant, Frank Daniel Glick's, home. The trial court ordered the suppression of the evidence because it concluded that the police officers who arrested Glick conducted an unreasonable warrantless search of Glick's home when they shined their flashlights into his home from their position on the home's front doorstep. We reverse.

We decide that an officer positioned at a lawful vantage point may use a flashlight to make plain view observations that during daylight would not constitute a search. The officers in this case were lawfully positioned on the defendant's front doorstep for the purpose of investigating a crime when the defendant left his front door ajar. Hence, the use of flashlights by the officers to make plain view observations inside of the defendant's home was permissible. Having lawfully viewed the evidence in the defendant's home, the officers then properly seized that evidence pursuant to the plain view doctrine.

Consequently, we hold that the trial court erred in granting Glick's motion to suppress evidence, statements, and observations, and we remand the case to the trial court for proceedings consistent with this opinion.

II. Facts and Procedural History

The prosecution charged Glick with possession of a controlled substance. Glick sought to suppress all evidence, observations, and statements obtained by police from the search of his home. At the initial suppression hearing, Officers Maldonado and Ordway of the Pueblo Police Department testified to the following facts.

At 6:15 a.m. on October 25, 2009, the Pueblo Police Department received a “hang-up” 911 call from an unidentified woman who requested assistance at 2143 E. 13th Street in Pueblo. Pueblo Police Officers Maldonado, Ordway, and Oliva responded to the call. When the officers arrived at East 13th Street, they discovered that there was no such address. Attempting to locate the source of the 911 call, the officers began contacting other addresses on the street ending in the number 3. Glick's home, 2113 E. 13th Street, was the second address the officers checked.

Officer Maldonado rang the doorbell, and Glick opened the front door. Glick appeared as if he had just woken up. Officer Maldonado told Glick that they were investigating a hang-up 911 call and asked if there were any other people in the house. Glick responded that his girlfriend and his roommate were also in the house. Officer Maldonado then asked if the officers could come inside and if he could speak with the other occupants to make sure they were safe. Glick said that the officers could speak with the other occupants, but he asked the officers to stay outside.

When Glick went to get his girlfriend, he left the front door “wide open.” There were no lights on inside the home. Standing in front of the open door, without crossing the threshold of the door, Officers Maldonado and Ordway looked inside the home and saw on a small table “some drug paraphernalia ... and some green leafy substance and a green plate which had [ ] a white rock like substance with a razor on it.” They suspected both substances were narcotics.

When Glick returned with his girlfriend, Officer Maldonado saw Glick walking toward the table with the suspected narcotics. Presuming that Glick was approaching the table to try to destroy the narcotics, Officer Maldonado entered the house. Glick then picked up the rock of suspected cocaine, and Officer Maldonado told Glick to drop it. In response, Glick put the rock back on the plate, and Officer Maldonado arrested him.

At the hearing, the prosecution and defendant disputed whether the officers used their flashlights while standing on Glick's doorstep to see inside his home. Officer Maldonado testified that, although the rising sun provided sufficient natural light to see inside the home, he “believed” he had his flashlight out and used it to see inside the house “in reference to attempting to find a disturbance of any kind in that house.” Officer Ordway testified that he could not remember the lighting conditions and that, although he could not remember, he was probably using his flashlight.

The defendant also introduced into evidence photographs taken by an investigator with the State Public Defender's Office. The investigator took the photographs between 6:15 and 6:50 a.m. on October 25, 2010, precisely a year after the defendant was arrested. The photographs show that, although the sun was beginning to rise at the time the officers contacted Glick, from the perspective of the officers standing on Glick's doorstep, Glick's home would have been dark, and they would not have been able to see inside Glick's home without using their flashlights.

From this evidence, the trial court found that “it was still dark and [the officers] could not see any detail inside the home” and that the officers “shined their flashlights into the living room of the home” where they saw suspected drugs and drug paraphernalia. The trial court concluded that, standing on the front porch of Glick's home, the officers “were located in a position where they had a right to be, based on the circumstances of the contact to check on the welfare of any female occupants of the home.” However, the trial court granted Glick's motion to suppress because it concluded that “the officers conducted an unreasonable warrantless search of [d]efendant's home when they shined their flashlights into the darkened room, and that the suspected contraband was not in plain sight in the absence of the unreasonable search.”

To reach this conclusion, the trial court distinguished the circumstances of this case from cases where we held that, when an officer shines a flashlight into an automobile in a public place, anything seen in the passenger compartment is considered to be in plain view. The trial court reasoned that the expectation of privacy in a home is higher than that in a car and, therefore, the use of a flashlight to see inside a darkened home constitutes an unreasonable search, even where the officers do so from a location where they have a right to be.

The prosecution then filed this interlocutory appeal.¹

III. Standard of Review

Appellate review of a trial court's suppression order is a mixed question of law and fact. People v. Pitts, 13 P.3d 1218, 1221–22 (Colo.2000). The trial court's legal conclusions are subject to de novo review. People v. Gothard, 185 P.3d 180, 183 (Colo.2008). However, we defer to a trial court's findings of fact if those findings are supported by competent evidence in the record. Pitts, 13 P.3d at 1221. 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. Id.

IV. Summary

On appeal, the prosecution challenges the trial court's order granting Glick's motion to suppress. The prosecution argues that the trial court erred in two ways: first, by finding facts contrary to the record evidence, and second, by finding as a matter of law that the officers conducted an illegal search when they shined their flashlights into Glick's home. We address each argument in turn. With respect to the first issue, we find that the trial court's finding that the officers used their flashlights to see inside Glick's home is not clearly erroneous. Then, we conclude the officers did not conduct an illegal search when they used their flashlights to observe evidence inside Glick's home and that the plain view doctrine justified the officers' seizure of that evidence.

Consequently, we hold that the trial court's grant of Glick's motion to suppress was erroneous.

V. Analysis

A.

We begin by considering whether the trial court erred when it found that Officers Maldonado and Ordway used their flashlights to see inside Glick's home.

In this case, although there was conflicting testimony, the trial court's conclusion that Officers Maldonado and Ordway used their flashlights to see inside of Glick's home is not clearly erroneous. At the suppression hearing, Officer Maldonado testified that there were no lights on inside the home but that the sun was coming up and there was sufficient light to see inside the house. However, in response to questioning as to whether he used his flashlight, Officer Maldonado responded, “Yes. Sometimes we do that, yeah. At the time, I would believe so. I always do.” He also stated that he used his flashlight “in reference to attempting to find a disturbance of any kind in that house.” Officer Ordway testified that he could not remember the lighting conditions but, “I'm sure I was using my flashlight as I normally do.” Furthermore, an investigator for the defense presented evidence that, at the same time on the same date of the following year, it was too dark to see inside of Glick's home without using a flashlight.

Under these circumstances, we conclude that the trial court's finding that the officers used their flashlights to see inside of Glick's home is not clearly erroneous.

B.

Having concluded that the trial court's finding that the officers used their flashlights to see inside Glick's home is not clearly erroneous, we turn to considering whether this police action constitutes an illegal search.

On...