People v. Harris

• Decision Date: 02 August 1990
• Docket Number: No. 89CA0699,89CA0699
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dwayne HARRIS, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 816

797 P.2d 816

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dwayne HARRIS, Defendant-Appellant.

No. 89CA0699.

Colorado Court of Appeals Div. II.

Aug. 2, 1990.

Rehearing Denied Aug. 23, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Martin J. Gerra III, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge HUME.

Defendant, Dwayne Harris, appeals the judgment of conviction and sentence entered on a jury verdict finding him guilty of first degree assault. We affirm in part, reverse in part, and remand with directions.

Defendant was a suspect in a stabbing incident. Acting on information provided by an anonymous caller, police entered an apartment complex and walked up to the apartment unit in which they believed defendant was located. The door to the apartment was completely open, and the arresting officers, while standing in the hallway of the complex, immediately saw and recognized defendant, who was sitting in the apartment, facing the door. The officers entered the apartment, without either a search or arrest warrant, and arrested him. At the time of the arrest, the officers knew that defendant was not the owner or leaseholder of the apartment.

Defendant sought to suppress statements and evidence obtained after his arrest. At the suppression hearing, defendant argued that although probable cause existed for his arrest, the arrest was illegal because there were no exigent circumstances to justify a warrantless entry into the apartment. He also argued that blood samples obtained from his clothing and the statements he made to officers after he had been given a Miranda warning were tainted by that illegality and, therefore, should be suppressed. The trial court denied the motion, finding that defendant did not have a legitimate expectation of privacy in the apartment sufficient to challenge the warrantless arrest.

The jury found defendant guilty of first degree assault with intent to commit serious bodily injury by means of a deadly weapon and a crime of violence. Although the jury was instructed to make a finding of whether the mitigation of heat of passion was applicable to the charge of first degree assault, it failed to mark either box on the special verdict form indicating its finding as to that issue. Apparently neither defendant, the trial court, nor the prosecution noticed the oversight prior to the discharge of the jury.

The trial court imposed a sentence for first degree assault without the mitigation of heat of passion, a class 3 felony. Because of the crime of violence finding, sentence was imposed in the aggravated range.

I.

Defendant contends that his status as a guest in the apartment entitles him to a legitimate expectation of privacy in that apartment sufficient to challenge his warrantless arrest as violative of the Fourth and Fourteenth Amendments and Colorado Const. art. II, § 7. We disagree.

It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Thus, a warrantless entry and arrest of a suspect in his home is illegal unless the prosecution can establish the existence of probable cause and exigent circumstances. People v. Drake, 785 P.2d 1257 (Colo.1990).

However, capacity to claim the protection of the Fourth Amendment depends upon whether the person who claims protection of the amendment has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). An expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Here, we are not persuaded that defendant's status as a guest in an apartment whose front door was so completely open as to expose defendant to public view, hearing, and speech, is sufficient to afford him a legitimate expectation of privacy that society is prepared to recognize as reasonable. See Katz v. United States, supra; People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980) (defendant arrested without a warrant while standing in open doorway of his own apartment does not have an expectation of privacy within the scope of the Fourth Amendment). Cf. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), (defendant's status as an overnight guest is sufficient to show a legitimate expectation of privacy in the host's home that society is prepared to recognize as reasonable).

Here, defendant does not claim, nor is there any evidence to suggest, that he was an overnight house guest in the apartment. Thus, the social custom recognized by the Olson court as valuable (staying overnight in another's home) is not present here. And, defendant's status is unlike the overnight house guest who seeks shelter in another's home "precisely because it provides him with privacy [in] a place where he and his possessions will not be disturbed by anyone...." See Minnesota v. Olson, supra.

Here, defendant's position in the apartment, facing a wide open door that completely exposed him to public view from the building's common area removes any legitimate expectation of privacy in the apartment that society is prepared to recognize as reasonable. Consequently, we conclude that the trial court did not err in denying the motion to suppress.

In light of this conclusion, we need not address defendant's contention that the prosecution is required to show the existence of exigent circumstances in order to justify the warrantless entry.

II.

Defendant contends, and the prosecution concedes, that the jury's failure to complete the verdict forms requires a remand for resentencing. We agree.

Although we are not bound by...