People v. Hogan, s. 82SA20

• Decision Date: 16 August 1982
• Docket Number: 82SA24,Nos. 82SA20,82SA26 and 82SA27,82SA25,s. 82SA20
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Donald W. HOGAN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 326

649 P.2d 326

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Donald W. HOGAN, Defendant-Appellee.

Nos. 82SA20, 82SA24, 82SA25, 82SA26 and 82SA27.

Supreme Court of Colorado, En Banc.

Aug. 16, 1982.

R. Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., David Purdy, Chief Deputy Dist. Atty., Denver, for plaintiff-appellant.

J. Gregory Walta, Colorado State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, Denver, for defendant-appellee.

QUINN, Justice.

This is an interlocutory appeal by the People from the district court's order suppressing evidence seized from the residence of the defendant, Donald W. Hogan. ¹ Although we affirm the suppression ruling, we do so for reasons different from those relied upon by the district court.

I.

At approximately 11:35 p. m. on April 8, 1981, Officer Daniel Yount and three other officers of the Denver Police Department went to the defendant's residence at 3806 W. Virginia Street in Denver in order to serve him with a summons and to take him to the police station in connection with a municipal ordinance violation involving disturbance by telephone. During his suppression testimony Officer Yount described this type of pickup as a routine police procedure. In response to questions from the court the officer testified as follows:

"Q Now, could you tell me why, when you went over to arrest Mr. Hogan, you didn't get a warrant from the county court first to arrest him?

"A Yes, ma'am. It was on a city ordinance violation, and the pickup had been placed. The procedure in that case was to take Mr. Hogan down, serve him with a copy and return him to his home.

"Q Your plan was to go to his home, advise him of the city ordinance violation?

"A That's exactly what we did at the time, ma'am.

"Q To arrest him?

"A To detain him long enough to serve him.

"Q To serve him with a Summons?

"A Yes.

"Q Did you have to take him back to the police station to do that?

"A We have to take him to headquarters. They have to be served with a copy and then returned. That's a departmental procedure.

"Q Then he is returned to his home?

"A Yes ma'am."

According to Officer Yount, the defendant had a prior criminal record and information had been received that he might have a weapon in his home. For these reasons four officers were dispatched to his residence.

When the officers arrived at the defendant's residence they knocked on the front door. The defendant opened the door and, when asked his name, identified himself as "Rodney Barringer." Earlier in the evening one of the officers had viewed a photograph of Donald Hogan in a police bulletin and, based on this viewing, he believed the defendant was the person they were seeking. ² The officers requested to enter the home but the defendant refused permission. Upon being asked for identification, the defendant stated that he would get his wallet. When he turned around to do so, the officers entered the living room, purportedly for their own protection. The room being dimly lit, the officers shined their flashlights and observed an ashtray containing the remnants of marijuana cigarettes, seeds and residue, and a rifle mounted on a wall.

After the officers accomplished their entry, the defendant handed Officer Yount a driver's license containing a photograph dissimilar to the defendant and bearing the name of Rodney Barringer. At this point the officers arrested the defendant for disturbance by telephone ³ and for a separate ordinance violation, giving false information to a police officer. ⁴ Officer Yount then examined the rifle on the wall and unloaded two live rounds from the chamber. The officers secured the house and told the defendant's companion to leave. The defendant was taken to the police station.

At the police station Officer Yount telephoned Rodney Barringer who explained that his wallet containing his driver's license, credit cards and some cash had recently been stolen from his locker at an athletic club. Officer Yount prepared an affidavit recounting his observations made during the defendant's arrest as well as the information conveyed to him by Rodney Barringer. ⁵ A search warrant was issued authorizing the search of the defendant's home for dangerous drugs and drug paraphernalia, a Marlin 30/30 rifle, the articles belonging to Rodney Barringer and any documents establishing the identity of the owner or occupant of the residence.

The warrant was executed by approximately six to eight officers in the early morning of April 9, 1981. During the search of the premises the officers observed numerous items which they believed had been stolen. In all, the police seized approximately 76 items, ranging from illegal drugs to stereo and camera equipment, as well as credit cards and pieces of identification belonging to various people. By conducting computer checks of the serial numbers on many of the items and by contacting the owners of various articles previously reported stolen, the officers were able to verify the stolen character of much of the property seized.

As a result of the seizure the defendant was charged by information in five cases with aggravated robbery ⁶ and the commission of a crime of violence. ⁷ After hearing testimony on the defendant's motion to suppress evidence, the court found that the officers went to the defendant's home to effect a warrantless arrest, that neither consent nor exigent circumstances justified the entry into the home for that purpose, and that the officers' observations inside the home were tainted by the illegal entry. The court then suppressed those items not specifically described in the warrant on the ground that these articles were outside the scope of the warrant and, therefore, could not lawfully be seized under the warrant.

We agree with the court's ruling that the officers' entry into the defendant's home was made to effect an arrest inside and, therefore, was in violation of the warrant requirement of the Fourth Amendment. Consequently, the officers' observations in the course of their entry do not meet the requirements of the plain view doctrine. However, we disagree with the reason offered by the district court for the suppression of the various articles seized during the subsequent search of the defendant's home. These articles should not have been suppressed on the ground that they were outside the scope of the warrant but, rather, for the reason that they were the fruit of the illegal observations made at the defendant's home during the illegal entry. Because the record removes all doubt about the character of the evidence suppressed as the fruit of the initial illegality, we affirm the ruling of the district court.

II.

The People argue that the police were legitimately in the defendant's residence when they observed in plain view the illegal narcotics, the Marlin rifle on the wall, and the driver's license of Rodney Barringer. We disagree.

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), controls our resolution of this aspect of the case. Under facts not significantly dissimilar to those present here, the Supreme Court held that the warrantless entry into a home in order to make an arrest, in the absence of consent or exigent circumstances, violates the Fourth Amendment to the United States Constitution. The constitutional significance of the intrusion does not turn so much on whether the purpose is to search or to arrest, but on the intrusive character of a warrantless entry into the home:

"(T)he critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home. The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their ... houses ... shall not be violated.' That language unequivocally establishes the proposition that '(a)t the very core (of the Fourth Amendment) stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." 445 U.S. at 589-90, 100 S.Ct. at 1381-82, 63 L.Ed.2d at 652-53. ⁸

We recently relied upon Payton in McCall v. People, 623 P.2d 397 (Colo.1981), where we suppressed a defendant's confession as the fruit of the defendant's illegal arrest inside his home. We pointed out that even prior to Payton Colorado case law has prohibited police officers from entering a private residence to effect an arrest in the absence of some well-defined exception to the warrant requirement, such as consent or exigent circumstances. See, e.g., People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). There is no reason here to depart from the steady course previously followed in this area of the law.

The district court found that the police officers went to the defendant's home for the purpose of arresting him without a warrant, and the evidence demonstrates their entry into the home was in furtherance of this purpose. The suppression testimony of Officer Yount establishes quite clearly that the officers did not merely intend to serve the defendant with a summons at his doorstep. Rather, they intended to take him to the stationhouse where he would be served and routinely processed before his release. Although the...