People v. Grazier

• Decision Date: 18 January 2000
• Docket Number: No. 99SA277.,99SA277.
• Citation: 992 P.2d 1149
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Emmett H. GRAZIER, Defendant-Appellee.
• Court: Colorado Supreme Court

992 P.2d 1149

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Emmett H. GRAZIER, Defendant-Appellee.

No. 99SA277.

Supreme Court of Colorado, En Banc.

January 18, 2000.

Frank J. Daniels, District Attorney, Twenty-First Judicial District, Richard B. Tuttle, Deputy District Attorney, Twenty-First Judicial District, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.

Law Offices of Colleen B. Scissors, Colleen B. Scissors, Grand Junction, Colorado, Attorneys for Defendant-Appellee.

Justice HOBBS delivered the Opinion of the Court.

In this interlocutory appeal under C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (1999), the prosecution challenges an order of the Mesa County District Court suppressing evidence seized by police through warrantless entry into a residence, evidence seized through a search warrant the police obtained on the basis of evidence discovered in the residence, and statements the defendant Emmett Grazier (Grazier) made during custodial interrogation at the county jail following a Miranda advisement. The police entered the residence as the result of a neighbor's 911 report that a burglary might be in progress. Finding and concluding that probable cause and exigent circumstances did not support the warrantless entry, the trial court suppressed all evidence resulting therefrom. We affirm the trial court's order.

I.

On November 6, 1998, several Grand Junction police officers responded to a neighbor's 911 report of a possible burglary in progress at an apartment¹ in Grand Junction. The transcript of the telephone report states:

Caller: Yes, I'm not sure if this is the number I'm suppose[d] to be calling or not. I live in an apartment complex and I just saw some guys go through the window of an apartment building. I don't believe they live there, but I don't even know for sure. And since they went in, he let another one in the front door and then they pulled the curtains.

After the 911 dispatcher asked questions regarding the location of the apartment and ascertained the caller's identity, the brief telephone conversation concluded as follows:

Dispatch: Okay. I've got some officers that are headed that way and if they need to contact you we'll just have them call then.

Caller: Okay. And I'm going to feel stupid if it's somebody that lives there, but it looks really ...

Dispatch: Well it's better to be safe th[a]n sorry.

Caller: Okay. Thanks.

Four officers responded to the call. Officer Curt Moreno (Moreno) went to the north side of the apartment while the three other officers remained by the front door. Looking through a window, Moreno saw a man sitting on a couch in the living room. Upon returning to the other officers, Moreno reported recognizing the man as Damon Thompson (Thompson), a person known to him from prior drug-related police contacts.

The officers knocked on the front door; Thompson answered. Without questioning him about whether he lived there or the identity and reason for presence of the other man seen entering the apartment, the officers immediately handcuffed Thompson and entered the residence. They saw no indication of a burglary in progress. Moreno and Officer William Baker (Baker) proceeded to the bathroom because they heard the shower running. They pulled back the shower curtain, began to question Grazier, extracted him from the shower, handcuffed him, and brought him and his clothes into the living room.

Grazier said he did not live in the apartment and did not know who did. Observing a large knife on the outside of his pants, Baker asked Grazier if he had any other weapons. Grazier responded that he had a small pocket-knife in his pants. Baker felt the knife in the pocket, turned the pocket inside out, and discovered a small, clear bag that police suspected contained methamphetamine. A further search of Grazier's pockets revealed $700.00 in cash. The officers opened Grazier's wallet and discovered an additional $106.00 in cash. While the police searched Grazier's effects, one of the officers ascertained from a phone conversation with Thompson's girlfriend that Thompson lived in the apartment with her.

The police transported Grazier to the Mesa County Detention Facility where, after being advised of his Miranda rights, he made several incriminating statements. Using the information and evidence gained from entry into the residence, the police obtained a warrant for a further search of the premises. In executing the warrant, officers found "pay-owe" sheets recording apparent drug transactions, drug paraphernalia, and additional packets of methamphetamine located in Grazier's fanny pack.

The prosecution charged Grazier with possession of a schedule II controlled substance, see § 18-18-405(1)(a), 6 C.R.S. (1999), use of a schedule II controlled substance, see § 18-18-404(1)(a), 6 C.R.S. (1999), possession of a schedule II controlled substance with the intent to distribute, see § 18-18-405(1)(a), and possession of drug paraphernalia, see § 18-18-428, 6 C.R.S. (1999). On March 30, 1999, Grazier filed a motion to suppress all evidence resulting from the warrantless entry of the residence, the search and seizure of his effects, and all statements he made to police.

On August 4, 1999, following an evidentiary hearing, the trial court granted Grazier's motion. The trial court found and concluded there was: (1) no probable cause to believe that a burglary was in progress; and (2) no exigent circumstances justifying the warrantless entry:

[T]he only fact which would lead the police to conclude that the apartment was being burglarized was the call made to the police from the neighbor, who had also expressed some doubt as to whether the people she saw enter lived there. Once the police arrived and observed the person they knew to be Damon Thompson sitting on the couch appearing to be doing nothing other than sitting on the couch, the exigency began to dissipate. When they knocked on the door and he answered, there was no longer any sort of a discernable emergency existing in the apartment justifying their warrantless, non-consensual entry. Further, the few facts that the police learned since their arrival at this apartment cast considerable doubt on the proposition that there was a burglary at all. After Damon Thompson answered the door, there was in fact no probable cause to believe a burglary was in progress. At that point a reasonable person would conclude that whoever entered the apartment through the window had done so because he probably had locked his key inside.

The trial court based its decision on the reasonableness standard of the Fourth Amendment. It determined — in light of observations made by the police dispelling the neighbor's suspicion of a burglary in progress—that the police did not act reasonably in failing to question Thompson as to who lived in the apartment and in pulling Grazier, a guest of Thompson, from the shower, handcuffing him, and bringing him into the living room where they further questioned him and searched his personal effects. The trial court stated:

Despite the fact the police saw no objective signs of any sort of burglary in progress, they did not seek any explanation from Mr. Thompson as to who lived there, who else was in the apartment, how he entered the apartment, and under what authority, if any, he was in this apartment. Under these circumstances it is particularly unreasonable for the police to barge into the bathroom where someone is clearly showering and to pull that person out of the shower, handcuff him, and escort him into the living room.

The trial court suppressed all evidence resulting from the warrantless entry of the apartment. We affirm the trial court's order.

II.

The evidence supports the trial court's findings of fact and conclusions of law that the police officers lacked probable cause for their warrantless entry of the residence and their search and seizure of Grazier's person and effects.

A. Probable Cause

The Fourth Amendment to the United States Constitution and Article II, section 7, of the Colorado Constitution prohibit unreasonable searches and seizures.² The requirement of a warrant based on probable cause is the principal protection against governmental intrusion upon a person's reasonable expectation of privacy in his or her residence, person, and effects. See, e.g., People v. Holmes, 981 P.2d 168, 170-71 (Colo.1999)

; People v. O'Hearn, 931 P.2d 1168, 1173 (Colo.1997). "In the absence of probable cause to believe that a crime has been committed and exigent circumstances necessitating immediate police action, warrantless entry into a home is proscribed." People v. Lewis, 975 P.2d 160, 167 (Colo.1999).

Fourth Amendment jurisprudence turns on "whether the conduct of offending officers meets the objective standard of `reasonableness.'" People v. Mendoza-Balderama, 981 P.2d 150, 157 (Colo.1999). The probable cause requirement for a warrantless entry is at least as strict as that required for issuance of a warrant. See People v. Thompson, 185 Colo. 208, 210, 523 P.2d 128, 131 (1974)

. Probable cause is a flexible standard deriving from a common sense concept of reasonableness. See People v. Higbee, 802 P.2d 1085, 1088 (Colo.1990). "Probability, not certainty, is the touchstone of reasonableness under the fourth amendment and... probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act." People v. MacCallum, 925 P.2d 758, 762 (Colo.1996).

Reasonableness is measured in objective terms. See Mendoza-Balderama, 981 P.2d at 157

. In ascertaining the existence or non-existence of probable cause, courts examine the totality of the facts and circumstances at the time of the warrantless entry and search. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); People v. Leftwich, 869 P.2d 1260, 1265 (Colo.1994) (recognizing that Colorado has adopted the totality of the...