People v. O'Hearn

• Decision Date: 13 January 1997
• Docket Number: No. 96SA218,96SA218
• Citation: 931 P.2d 1168
• Parties: 21 Colorado Journal 77 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Ann Marie O'HEARN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1168

931 P.2d 1168

21 Colorado Journal 77

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Ann Marie O'HEARN, Defendant-Appellee.

No. 96SA218.

Supreme Court of Colorado En Banc.

Jan. 13, 1997.

John Suthers, District Attorney, Fourth Judicial District, Daniel H. May, Deputy District Attorney, Colorado Springs, for Plaintiff-Appellant.

The Tegtmeier Law Firm, P.C., Richard Tegtmeier, Bradley S. Taylor, Colorado Springs, for Defendant-Appellee.

Justice HOBBS delivered the Opinion of the Court.

This interlocutory appeal is brought by the District Attorney for the Fourth Judicial District, pursuant to C.A.R. 4.1, ¹ from an order of the El Paso County District Court granting defendant's motion to suppress drugs and drug-related evidence seized at a Colorado Springs residence. The district court also suppressed statements made in the absence of an advisement pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Upon review of the district court's findings and the evidentiary record, we uphold the court's suppression order.

I.

On February 28, 1996, Colorado Springs police officers Gregory, Fischlein, and Bertsch received a "tip package" from their sergeant containing an anonymous tip that had been called into "crime stoppers" and relayed to the police department. The essence of the "tip" was that there had been a high level of foot traffic to and from a residence on North Chestnut Street where Ann Marie O'Hearn (O'Hearn) resided. The tipster also expressed a belief that the foot traffic was related to narcotics activity. Officer Gregory testified that, in responding to such a tip packet assigned by a superior officer, the assigned officers are expected to conduct an investigation. Although the nature of this particular investigation was not specified by the assigning officer, the investigating officers decided to engage in what they described as a routine Colorado Springs police practice called a "knock and talk." This involves the police engaging citizens in conversation at their homes, in the pursuit of investigating suspected criminal activity.

Through checking records, the officers verified that O'Hearn was listed as the resident of the house and that she had no criminal record. They also learned that a warrant for O'Hearn's arrest might exist for ownership of an unlicensed dog, in violation of a municipal ordinance. They did not attempt to confirm the existence and current validity of the arrest warrant prior to their arrival at O'Hearn's home.

At approximately 11:45 p.m. on February 28, 1996, the three armed and uniformed officers arrived at O'Hearn's residence on North Chestnut Street. At the time the officers were knocking at the front door, O'Hearn was arriving at the back kitchen door with a friend, Richard Ballo. O'Hearn turned on a dim light under the stove hood and walked to the front of the house because she heard knocking at the front door. With the exception of the kitchen hood light, which was dimly shining into the living room, no other light was on in the house or on the front porch. After O'Hearn asked who was there and Officer Fischlein announced, "Police," O'Hearn opened the door. Two of the officers then walked into O'Hearn's living room, followed by the third officer. One of the officers stated that they were investigating "neighborhood activity." Standing in O'Hearn's living room, one of the officers engaged O'Hearn in conversation while the other two began to look around the living room.

Officer Gregory noticed a wooden box on the coffee table, which he testified is known, based on his experience, as a device that conceals a marihuana pipe. Upon examining the device, he said to O'Hearn "we can search your house now," then asked whether she used narcotics and had any on the premises. She answered that she occasionally used marihuana and had a little in the house. She started to reach into her purse and was told to desist since, as the officer testified, she could have been reaching for a weapon. Officer Gregory asked O'Hearn four times whether the officers could search the premises. She said no. O'Hearn testified she was told she was not free to leave.

While Officer Gregory stood in the living room and questioned O'Hearn, Officer Fischlein completed a field interview card in O'Hearn's kitchen. He confirmed through radio dispatch that outstanding arrest warrants existed against O'Hearn for failure to obtain a dog license. No attempt was made to arrest O'Hearn for this offense. The nonconsensual entry was made and the marihuana pipe was discovered prior to confirmation of the misdemeanor arrest warrant. No Miranda advisory was given to O'Hearn before or during the questioning. Having failed to obtain O'Hearn's consent to search, Officer Gregory left the premises to obtain a search warrant on the basis of the discovery of the marihuana pipe and O'Hearn's answers to the questions. The two other officers remained with O'Hearn in the living room. Officer Gregory returned at approximately 2:00 a.m. February 29, 1996, with a search warrant and two additional police officers to aid in the search. A total of thirty-three drug and drug-related items were found at O'Hearn's residence. She was placed under arrest, taken to the Colorado Springs police station, then given a Miranda advisory, and charged with possession of marihuana with intent to sell and various other drug-related offenses. ²

The suppression motion was heard on May 31, 1996. After receiving the testimony of O'Hearn, Ballo, and two of the police officers, the district court ruled that the prosecution had failed to prove that entry into the home was consensual, and entered an order suppressing O'Hearn's statements and all the evidence seized. The district court determined that this midnight investigation was conducted without a warrant for the sole purpose of obtaining evidence of narcotics activity and that O'Hearn's statements were obtained in violation of Miranda.

The district attorney raises three questions for review: (1) whether the district court erred in ruling the police were not properly on the premises; (2) whether Miranda applied under the circumstances; and (3) whether O'Hearn's statements were voluntary.

II.

The prosecution argues that entry into O'Hearn's home was valid because O'Hearn gave consent and because arrest warrants for a dog license violation were outstanding. ³

We determine that the district court's findings of fact are supported by the evidence and we affirm the suppression order. Entry into the home occurred in the course of a drug investigation without a warrant, without consent of the occupant, and without probable cause or exigent circumstances justifying a warrantless entry or search, in violation of the United States and Colorado Constitutions.

A.

The Fourth Amendment and its Colorado counterpart protect citizens against invasion of their privacy in a variety of settings. ⁴ The clearest right is to be free from unreasonable governmental intrusion into one's home. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980). "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Id. at 586, 100 S.Ct. at 1380. "[T]he Fourth Amendment to the United States Constitution ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Id. at 576, 100 S.Ct. at 1374-75. Unreasonable "physical entry of the home" is the "chief evil" against which the Fourth Amendment is directed. Id. at 585, 100 S.Ct. at 1379-80. Intrusion into a home at night exacerbates this wrong. Wanger v. Bonner, 621 F.2d 675, 682 (5th Cir.1980).

The principal protection for citizens against governmental intrusion into the home is the requirement of a warrant based on probable cause for search or arrest. See Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2096-97, 80 L.Ed.2d 732 (1984). The warrant requirement interposes an impartial member of the judiciary between the law enforcement officer and the person against whom the arrest and/or search is directed. People v. Moreno, 176 Colo. 488, 492, 491 P.2d 575, 577-78 (1971).

In the absence of probable cause and exigent circumstances, warrantless entry into a home is proscribed. Welsh, 466 U.S. at 749, 104 S.Ct. at 2097; see Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971) (unless police can show that entry was pursuant to a carefully defined exception to the warrant requirement, based upon exigent circumstances, warrantless entry into home "is per se unreasonable"). A warrantless, nonconsensual entry into a home leads to suppression of evidence resulting from the illegal entry. New York v. Harris, 495 U.S. 14, 20, 110 S.Ct. 1640, 1644, 109 L.Ed.2d 13 (1990); accord People v. Taube, 864 P.2d 123, 131 (Colo.1993) (applying "fruit of the poisonous tree" suppression doctrine as the result of Fourth Amendment violations).

The Fourth Amendment right of the people to be free from unreasonable searches and seizures is not violated when the holder of the right provides the searching officer with voluntary consent to enter the premises. People v. McKinstrey, 852 P.2d 467, 470 (Colo.1993). Evidence obtained as the result of consensual entry and search does not require suppression. See People v. Breidenbach, 875 P.2d 879, 888 (Colo.1994). ⁵

B.

The prosecution did not meet its burden of proof to demonstrate by clear and convincing evidence that O'Hearn's consent to enter the premises was freely given. See People v. Thomas, 853 P.2d 1147, 1149 (Colo.1993) (refusing to overturn trial court factual findings regarding consent that are supported by evidence); People v. Drake, 785 P.2d 1257, 1265-66 (Colo.1990) (reciting clear and convincing evidence standard). O'Hearn and Ballo both testified that,...