People v. Herrera

• Decision Date: 07 April 1997
• Docket Number: No. 96SA460,96SA460
• Citation: 935 P.2d 956
• Parties: 21 Colorado Journal 518 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Guadalupe HERRERA, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 956

935 P.2d 956

21 Colorado Journal 518

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Guadalupe HERRERA, Defendant-Appellee.

No. 96SA460.

Supreme Court of Colorado En Banc.

April 7, 1997.

Robert S. Grant, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Brighton, for Plaintiff-Appellant.

Sylvian R. Roybal, Denver, for Defendant-Appellee.

Justice BENDER delivered the Opinion of the Court.

The people bring this interlocutory appeal under C.A.R. 4.1 AND SECTION 16-12-102(2)¹, 8A C.R.S. (1986 & 1996 Supp.), ² challenging a suppression order entered by the Adams County District Court. The order suppressed cocaine and currency found in the home of the defendant, Guadalupe Herrera (Herrera), as well as statements made by Herrera to law enforcement officers subsequent to the search of Herrera's home. The trial court found that Herrera did not consent to the warrantless search of his home and ruled that the cocaine and currency were improperly seized. The trial court also found that Herrera's advisement under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), given immediately after the illegal search, was not only tainted by the illegal search but was also inadequate due to significant omissions. On those bases the court suppressed the statements Herrera made to the law enforcement officers. We affirm the trial court's finding that Herrera did not consent to the search of his home, and we affirm the order suppressing the cocaine and currency seized. We do not reach a decision concerning the order suppressing Herrera's statements because this issue was not raised by the prosecution in its request for interlocutory review. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990) (holding that issues not raised in petitioner's initial brief are not properly before appellate court and will not be addressed).

I.

On September 28, 1995, Senior Special Agent Jimmy L. Spence (Spence) of the United States Immigration and Naturalization Service went to the Herrera residence at 7131 North Hooker Street, Apartment 210, in Adams County during daytime hours. Spence had been assigned to the organized drug task force for the past eight years and has spoken fluent Spanish for 30 years. Another officer on Spence's team developed information that a large amount of cocaine was at Herrera's residence. Spence, with four or five other police officers as support, knocked on the door. When Herrera opened the door, Spence identified himself as an immigration officer and requested information about Herrera's citizenship. Herrera initially gave an incorrect first name, but then provided the correct information and admitted that he was in this country illegally. Spence said he had been informed that the apartment might contain drugs, and he asked Herrera for permission for the police officers to search the residence. According to Spence's testimony at the motions hearing, Herrera consented to a search of the apartment. Spence then asked Herrera to read and sign a consent form written in Spanish. Herrera did so. Spence also signed the form. Before beginning the search, Spence asked Herrera twice whether there were any drugs, money or guns in his apartment. Both times, Herrera said no.

The officers proceeded to search the apartment. In a dresser in the back bedroom the officers found four plastic bags containing a white crystalline substance they believed to be cocaine. At that time, Spence gave Herrera an oral Miranda advisement in Spanish. Further search of the bedroom uncovered five more grams of a substance the officers believed to be cocaine, which was hidden in the closet. In the kitchen area the agents found $6,000 in United States currency.

Spence testified at the motions hearing that he did not have enough information for a search warrant and that there were no exigent or emergency circumstances known to him to justify his search of Herrera's home. He also testified that he had no information before he entered the apartment that would lead him to believe that drugs might be destroyed by the occupants of the apartment. Spence was shown the consent form on direct examination, and he testified that the form "indicates that [Herrera] agreed to have his apartment Number 210 searched, and also [his] 1981 brown Eldorado Cadillac."

Herrera testified that he was living at 7131 Hooker Street, Apartment 210, Adams County, on September 28, 1995, and admitted signing a consent form written in Spanish at the request of a police officer. He testified that the form permitted the police officer to search his car, a 1981 Cadillac, which was parked outside his residence. He denied that the police officer asked if he could conduct a search of Herrera's residence. At this time the court clarified with all the parties, including the court interpreter, that the consent form, when translated into English, gave permission by Herrera to the police to search his car which was located at the residence, and said nothing concerning the search of Herrera's home.

The prosecutor then recalled Spence who stated that Herrera verbally consented to a search of the apartment. Spence testified that after he obtained this verbal consent, he learned that a car was present outside the residence, and, seeking to search the car as well, filled in by hand the information on the consent form regarding the car.

The trial court, after hearing the conflicting evidence, discussed the factors concerning the voluntariness of a consent to search. The court found that Herrera signed a consent form describing the property to be searched as the 1981 brown Cadillac Eldorado and not his apartment. The court then made the following findings:

I think looking at the totality of the circumstances, the only thing that I have on the other side is--is Mr. Spence's testimony, and I'm not calling him a liar, and certainly wouldn't do that, but what he says simply doesn't outweigh all of the other evidence I have.

I think the People have a strong burden to show that a warrantless arrest is valid in some other fashion, and they simply have not met that burden. The Court finds the search, in fact, was illegal.

In addition, the court found that the search of Herrera's apartment did not involve exigent circumstances. The trial court therefore suppressed the evidence found in the apartment.

II.

The United States Supreme Court has held that warrantless searches are unreasonable unless they satisfy an exception to the warrant requirement. See, e.g., Colorado v. Bannister, 449 U.S. 1, 2-3, 101 S.Ct. 42, 42-43, 66 L.Ed.2d 1 (1980) (per curiam). One exception to the warrant requirement that is relevant here is a search conducted pursuant to a valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). No search warrant is required where consent, in light of the totality of circumstances, has been freely and voluntarily given. See id. A warrantless search conducted on the basis of consent is limited in time, duration, physical scope, and purpose by the terms of the consent given by the consenting party. See 3 Wayne R. LaFave, Search and Seizure § 8.1 (3d ed.1996); see also People v. Thiret, 685 P.2d 193, 201 (Colo.1984) (consent "to look around" does not equate with consent to detailed search of home). The admissibility of evidence seized pursuant to an allegedly consensual search must stand or fall on the basis of the consent given before the search. See LaFave, supra, § 8.1.

When the...