People v. Haurey

• Citation: 859 P.2d 889
• Decision Date: 18 October 1993
• Docket Number: No. 93SA36,93SA36
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Stephen P. HAUREY, David B. Haurey, and Sean P. McEnany, Defendants-Appellees.
• Court: Supreme Court of Colorado

Page 889

859 P.2d 889

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Stephen P. HAUREY, David B. Haurey, and Sean P. McEnany,

Defendants-Appellees.

No. 93SA36.

Supreme Court of Colorado,

En Banc.

Oct. 18, 1993.

Peter F. Michaelson, Dist. Atty., Timothy A. Meinert, Chief Deputy Dist. Atty., and Karen A. Baime, Deputy Dist. Atty., Eagle, for plaintiff-appellant.

Fahrenholtz & Riva, P.C., James E. Fahrenholtz, Avon, for defendant-appellee Stephen P. Haurey.

Hugh R. Warder, Glenwood Springs, for defendant-appellee Sean P. McEnany.

No appearance for defendant-appellee David B. Haurey.

Justice LOHR delivered the Opinion of the Court.

In this interlocutory appeal brought under C.A.R. 4.1, the People seek reversal of an order of the Eagle County District Court suppressing certain statements made by the defendants, Stephen P. Haurey, David B. Haurey, and Sean P. McEnany. The court ordered suppression based on the conclusions that the statements of Stephen Haurey were products of an illegal arrest and that the statements of the other two defendants resulted from custodial interrogation that was not preceded by Miranda warnings. ¹ We reverse and remand to the district court for further proceedings.

I.

The defendants were charged jointly in Eagle County District Court with unlawful use of a controlled substance, § 18-18-104, 8B C.R.S. (1986) (repealed and reenacted as § 18-18-404, 8B C.R.S. (1993 Supp.)), and unlawful possession of a controlled substance, § 18-18-105, 8B C.R.S. (1986) (repealed and reenacted as § 18-18-405 C.R.S. (1993 Supp.)). Each defendant moved to suppress all statements made by him, as well as other evidence. The district court held an evidentiary hearing, at the conclusion of which it suppressed all statements made by Stephen Haurey to police officers and all statements made by David Haurey and Sean McEnany in response to questions asked by police officers. The court ruled that statements of David Haurey and Sean McEnany that were not in response to such questions would not be suppressed. The People then brought this interlocutory appeal.

The charges against the defendants stemmed from events that occurred in Vail, Colorado, beginning at approximately 11:30 p.m. on August 21, 1992. Officer Tim Swanson of the Vail Police Department was on foot patrol when he observed a group of eight persons walking up a footpath towards the base of a chair lift on Vail Mountain. The officer testified, and the district court found, that this location was commonly used for smoking marijuana and ingesting cocaine. Officer Swanson called for backup assistance, then followed the group and watched as they formed a circle. Officer Swanson testified that as he approached the individuals he heard two sniffing noises. The officer testified that he knew that sniffing was the common way of ingesting cocaine, so he moved closer, turned on his flashlight, and shined it on the group. He testified that he saw a person, later identified as Sean McEnany holding an orange colored vial to the nostril of another person, later identified as David Haurey, and simultaneously heard a third sniffing noise. Officer Swanson testified that he then identified himself as a police officer and said, "Do not move." According to Officer Swanson, Stephen Haurey--who was also in the group--advanced towards him and stopped only when Swanson directed Haurey several times to do so and pulled out his baton. During the course of these activities, three of the members of the group fled and were not apprehended. Two of the remaining members were released and never charged, leaving only the three co-defendants whose motions to suppress are at issue in this appeal.

Testimony was also presented by Officer Swanson, two backup police officers who arrived during the course of the events, and defendant Stephen Haurey concerning other matters that transpired that evening. Officer Swanson testified that he saw defendant McEnany throw a vial behind him. A vial was recovered at the scene. The defendants made a number of statements at various times and under various circumstances during their encounter with Officer Swanson and the backup officers. ² The evidence with respect to the statements, particularly as to whether they were volunteered or elicited in response to police questioning, was not entirely consistent and in some instances was conflicting. The district court made no findings to resolve these uncertainties. The defendants were ultimately taken to the police station where for the first time McEnany was advised of his Miranda rights. Neither of the other defendants received such an advisement at any time during the evening.

After the presentation of evidence and arguments, the district court ruled from the bench. The court held that the defendants were under arrest when Officer Swanson first directed them not to move. With respect to David Haurey and Sean McEnany, the court held that there was probable cause for arrest based on the scene that greeted Officer Swanson when he first shined his flashlight on the group. The court ordered that statements made by these two defendants in response to police questions must be suppressed but that statements that were not elicited by such questions were not subject to suppression. The court held, however, that Officer Swanson lacked probable cause for the arrest of Stephen Haurey. The court suppressed all statements made by Stephen Haurey because they were the products of the illegal arrest.

II.

We review the district court's rulings, applying the pertinent legal principles to the evidence appearing in the record.

A. Statements Made By David Haurey And Sean McEnany

The issue with respect to the statements made by David Haurey and Sean McEnany is whether they were made as the products of custodial interrogation prior to advisement of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under Miranda, a person cannot be subjected to custodial police interrogation unless and until that person has been advised of certain constitutional rights and has waived those rights. Id. at 444-45, 86 S.Ct. at 1612; People v. Hopkins, 774 P.2d 849, 851 (Colo.1989). The suspect must be "adequately informed that he has a right not to say anything, that what he does say can be used against him in court, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to questioning if he so desires." Hopkins, 774 P.2d at 851. A statement obtained in violation of the Miranda requirements is not admissible as evidence in a criminal case. Miranda, 384 U.S. at 476, 86 S.Ct. at 1629; Jones v. People, 711 P.2d 1270, 1275 (Colo.1986); People v. Aalbu, 696 P.2d 796, 807 (Colo.1985). To determine whether a statement was obtained in a manner consistent with the dictates of Miranda, a court must resolve two issues: Was the person making the statement in custody at the time, and was the statement the product of police interrogation? People v. Hamilton, 831 P.2d 1326, 1330-31 (Colo.1992); People v. Algien, 180 Colo. 1, 6, 501 P.2d 468, 470 (1972).

"A person is 'in custody' not only when the person has been subjected to the constraints associated with a formal arrest, but also when a police interrogation is conducted under circumstances where the person interrogated has been deprived of his freedom of action in a significant way." Hamilton, 831 P.2d at 1330 (citing Miranda, 384 U.S. at 476-77, 86 S.Ct. at 1629); accord People v. LaFrankie, 858 P.2d 702, 705-06 (Colo.1993). The test for whether a person is in custody is an objective one: whether a reasonable person in the position of the suspect would have considered himself deprived of his freedom of action in any significant way. Hamilton, 831 P.2d at 1330; Algien, 180 Colo. at 7, 501 P.2d at 471. To determine a reasonable person's belief, a court must evaluate the totality of the circumstances under which the questioning occurred, including such factors as the following:

The time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.

People v. Horn, 790 P.2d 816, 818 (Colo.1990) (quoting Jones v. People, 711 P.2d 1270, 1275-76 (Colo.1986)); People v. Thiret, 685 P.2d 193, 203 (Colo.1984). See also 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.6 at 108-09 (1991 Supp.) (discussing the application of custody standards in the context of investigatory stops).

Whether a person was "in custody" as a result of being deprived of his freedom of action in a significant way is a question of fact, which must be resolved by the trial court. People v. Horn, 790 P.2d at 818; People v. Johnson, 671 P.2d 958, 962 (Colo.1983). The trial court's determination will be upheld on appeal if supported by competent evidence and based on application of the correct legal standard. People v. Horn, 790 P.2d at 818.

The district court determined that both Sean McEnany and David Haurey were under arrest from the time that Officer Swanson first shined his flashlight on them and directed them not to move. The court specifically rejected the prosecutor's argument that those two defendants were subjected only to an investigatory stop ³ at that time. The record, however, reflects that those defendants were not placed under arrest until later. Although the district court's ruling may contain the implication that the initial "arrest" was a detention sufficiently restrictive to meet the standards for...