People v. Harris

• Decision Date: 05 July 1988
• Docket Number: No. 86SC285,86SC285
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Antonio HARRIS, Respondent.
• Court: Colorado Supreme Court

Page 651

762 P.2d 651

The PEOPLE of the State of Colorado, Petitioner, v. Antonio HARRIS, Respondent.

No. 86SC285.

Supreme Court of Colorado,

En Banc.

July 5, 1988.

Rehearing Denied Aug. 15, 1988.

Certiorari Denied Dec. 5, 1988.

See 109 S.Ct. 541.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for petitioner.

Gerash, Robinson, Miller & Miranda, P.C., Scott H. Robinson, Denver, for respondent.

ERICKSON, Justice.

Defendant Antonio Harris was convicted by a jury of first-degree sexual assault, section 18-3-402(3)(a), 8 C.R.S. (1978 & 1984 Supp.), and conspiracy to commit sexual assault, section 18-2-201, 8 C.R.S. (1978). The primary issue on appeal is whether statements made by the defendant, who had been advised of and had waived his Miranda ¹ rights, and who was in custody pursuant to a Crim.P. 41.1 order for nontestimonial identification, should be suppressed as violative of his constitutional rights. The court of appeals reversed the conviction, finding that statements procured from Harris during execution of a Crim.P. 41.1 order were obtained in violation of the defendant's constitutional rights against illegal search and seizure under the fourth amendment of the United States Constitution and article II, section 7 of the Colorado Constitution. People v. Harris, 729 P.2d 1000, 1002 (Colo.App.1986). The court of appeals also concluded that the trial court improperly restricted cross-examination of a prosecution rebuttal witness. Finally, the court held that comments made by the prosecution during closing argument relating to the defendant's failure to call his wife as a witness went beyond permissible comment on a lack of evidence. We granted the prosecution's writ of certiorari and now affirm the court of appeals.

I.

On June 4, 1984, two men sexually assaulted a woman on the Boulder campus of the University of Colorado. The victim gave a relatively detailed description of the two men, whom she said she had never seen before. On June 6, 1984, pursuant to Crim.P. 41.1, an order for nontestimonial identification evidence was issued for the defendant, Antonio Harris. The order ² was executed by Detective DeLaria of the University of Colorado Police Department on June 7, 1984, who served the defendant at a Boulder construction site where he had been working. The order authorized the taking of blood samples, pubic and scalp hair samples, saliva samples, photographs, fingerprints, foot-size measurements, a voice exemplar, as well as requiring the defendant's participation in a lineup.

DeLaria advised the defendant of his Miranda rights while transporting him to the Boulder Community Hospital and explained to Harris that he could talk and exchange information with the police. DeLaria told the defendant that he would cease questioning him if he requested a lawyer. DeLaria then proceeded to ask Harris questions about his actions and whereabouts on the night of the assault. In response to these questions, the defendant provided details regarding where he had been, whom he had been with, and what he had been doing.

The defendant was questioned en route to the hospital, at the hospital, on the way to the lineup, and at the lineup itself. The questioning ceased only after the defendant's attorney arrived and asked the officer to stop asking questions. DeLaria testified that his interrogation of the defendant was "part of the plan" in that he intended to get information from him.

After arraignment, the defendant moved to suppress his statements to Detective DeLaria, arguing that the interrogation extended beyond the scope of the Crim.P. 41.1 order. The trial court denied the motion. In arriving at this conclusion, the court made the following findings: the defendant's detention did not exceed the scope of the Crim.P. 41.1 order; the order was not a ruse; the sole motivation for obtaining the order was to procure those items authorized by the order; the defendant's statements were obtained in compliance with Miranda; the defendant waived his Miranda rights; and the statements made by the defendant to the officer were voluntary.

The court of appeals reversed the trial court and concluded that the defendant's constitutional rights against illegal search and seizure had been violated because the preplanned interrogation of the defendant exceeded the limited purpose and limited intrusiveness contemplated by Crim. P. 41.1. Harris, 729 P.2d at 1002. The court also found that Miranda warnings by themselves do not dissipate the taint of a fourth amendment violation even though the statements were otherwise voluntary. Id.

II.

In determining whether the defendant's statements made in response to police interrogation, while he was in custody pursuant to a Crim.P. 41.1 order, should be suppressed as violative of the fourth amendment and its Colorado counterpart, we initially must decide whether a police officer, in executing a nontestimonial identification order, is authorized to interrogate a suspect who is in custody on less than probable cause.

A.

In Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), the Supreme Court suggested that under narrowly circumscribed procedures, limited intrusions based on less than probable cause might be constitutionally permissible. Crim.P. 41.1 was adopted by this court in response to Davis. ³ While the United States Supreme Court has never expressly addressed the constitutionality of such procedures, it has reaffirmed that the fourth amendment may permit procedures similar to those in Crim.P. 41.1. Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985); Dunaway v. New York, 442 U.S. 200, 215, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824 (1979). In People v. Madson, 638 P.2d 18 (Colo.1981), this court upheld the constitutionality of Crim.P. 41.1.

1.

The prosecution asserts that the nature of a Crim.P. 41.1 order is not made more intrusive by asking the defendant questions. This claim "lies at the crossroads of the Fourth and Fifth Amendments," Brown v. Illinois, 422 U.S. 590, 591, 95 S.Ct. 2254, 2255, 45 L.Ed.2d 416 (1975), and requires us to examine the nature and origin of Crim.P. 41.1 in the context of the general rule that searches and seizures must be based on probable cause. The fourth amendment provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." These rights are applicable to the states through the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). ⁴ The execution of an order for nontestimonial interrogation constitutes a seizure under the fourth amendment and article II, section 7 of the Colorado Constitution. Madson, 638 P.2d at 31.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized an exception to the requirement that fourth amendment seizures must be based on probable cause. Since the "stop and frisk" at issue in Terry was considered less severe than that involved in a traditional arrest, the Court did not extend the traditional concept of arrest--and the general rule requiring probable cause to make arrests "reasonable" under the fourth amendment--to cover such intrusions. Rather, in an effort to balance the limited violation of individual privacy against the state's interest in crime detection and prevention, and in the safety of the police, 392 U.S. at 22-27, 88 S.Ct. at 1880-83, the Court established "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." 392 U.S. at 27, 88 S.Ct. at 1883.

"Because Terry involved an exception to the general rule requiring probable cause, [the] Court has been careful to maintain its narrow scope." Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979); see, e.g., United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (brief detention permitted where reason to believe suspect was involved in a felony); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (detention permitted to ensure that flight will not occur if incriminating evidence is found, to minimize risk to police, and to facilitate the orderly completion of the search); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (order to get out of car is permissible de minimis intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after "bulge" observed in jacket); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (frisk for weapons on basis of reasonable suspicion). Consequently, for all but those circumstances enumerated by the Court, "seizures are 'reasonable' only if supported by probable cause." Dunaway, 442 U.S. at 214, 99 S.Ct. at 2257.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the defendant, a rape suspect, was brought into the police station for questioning and fingerprinting. At issue was whether the detention of the defendant on less than probable cause for purposes of fingerprinting constituted an unreasonable seizure of his person in violation of the fourth amendment. The Supreme Court noted that the fourth amendment was designed "to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.' " 394 U.S. at 726-27, 89 S.Ct. at 1397 (footnote omitted). The Court also discussed the distinctions between fingerprinting and interrogation.

Fingerprinting involves none of the probing into an...