People v. Hopkins

• Decision Date: 22 May 1989
• Docket Number: No. 88SA435,88SA435
• Citation: 774 P.2d 849
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kevin Eugene HOPKINS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 849

774 P.2d 849

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kevin Eugene HOPKINS, Defendant-Appellee.

No. 88SA435.

Supreme Court of Colorado,

En Banc.

May 22, 1989.

Kurt P. Schulke, Dist. Atty., Joseph F. Bennett, Chief Deputy Dist. Atty., Robyn J. Hamilton, Deputy Dist. Atty., Eagle, for plaintiff-appellant.

Fredric B. Butler, Eagle, for defendant-appellee.

Chief Justice QUINN delivered the Opinion of the Court.

In this interlocutory appeal the People challenge an order suppressing the defendant's custodial statements and various items of stolen property taken by him in two burglaries. We conclude that the district court applied an erroneous legal standard in suppressing the challenged evidence. We accordingly reverse the order of suppression and remand the case for further proceedings.

I.

The defendant, Kevin Eugene Hopkins, was charged in the District Court of Eagle County with two counts of burglary, two counts of theft, and two counts of criminal mischief, all of which occurred between August 3 and 4, 1988, in Eagle County, Colorado. After entering a not guilty plea to the charges, the defendant filed a motion to suppress a custodial statement made by him to law enforcement officers on the basis that he was not adequately advised of his constitutional rights prior to making the statement and also to suppress a second statement and various items of personal property seized by the officers as a result of the prior custodial statement.

A suppression hearing was conducted by the district court on November 17, 1988, at which the following facts were established. On August 3 and 4, 1988, two townhouses in Beaver Creek, Colorado, were broken into and various items were stolen from the dwellings. Deputy Sheriffs Zabroski and Everding investigated the burglaries and learned that the defendant had been working as a cleaning person at or around the time of the crimes. Deputy Zabroski was aware that the defendant's former roommate had been involved in some suspicious checkwriting and credit card use and that there also was an outstanding arrest warrant for the defendant for fraud by check. Zabroski contacted the defendant by telephone and requested him to come to the sheriff's office. The defendant, a twenty-eight year old high school graduate, arrived at the sheriff's office during the afternoon of August 12, 1988. After a brief discussion with the defendant concerning the check and credit card matters relating to the defendant's roommate, Deputy Zabroski turned the discussion to the burglaries and at 3:45 p.m. advised the defendant orally and in writing as follows:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

You have the right to talk to a lawyer and have him present with you while you are being questioned.

If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

The defendant acknowledged in writing that he understood each of his rights and that he was willing to waive those rights by making a statement to the officer. The defendant denied any knowledge or involvement in the burglaries and, pursuant to Zabroski's request, signed a written authorization for the officers to search his automobile and his residence.

After searching the defendant's vehicle and finding no stolen property, the officers drove the defendant to his residence. Upon their arrival, Deputy Zabroski asked the defendant if he was still aware of his rights. The defendant stated that he was and that he knew what he had signed. While at the residence Deputy Everding discovered a video cassette recorder which matched the description of one of the items stolen in the burglaries. When asked about the recorder, the defendant again denied knowledge of the burglaries.

While still at the defendant's residence, Deputy Zabroski informed the defendant that there was a warrant for his arrest on a charge of fraud by check and that Deputy Everding was going to handcuff him. The defendant stated, "We're going to have to make a stop." When Deputy Zabroski asked, "For what?" the defendant replied, "For the rest of the stuff." Zabroski asked the defendant, "[D]id you do it?" to which the defendant responded, "Yes."

The two deputies, with the defendant directing, drove to a creek bed where they recovered the remaining items taken from the townhouses. At approximately 6:45 p.m. the defendant, while in the sheriff's car near the creek bed, wrote out a statement which was prefaced by the following language:

I am giving this statement of my own free will after having been advised of my rights to remain silent, to have a lawyer, to make no self-incriminating statements, and understand no police agent can make any promise of leniency or favors.

In his written statement the defendant confessed to taking various items from the townhouses, including a video cassette recorder and a television set, and hiding them near the creek bed. ¹

The district court found, in pertinent part, that approximately two hours after being advised of his Miranda rights, the defendant, while at his home with the officers, made a voluntary statement to Deputy Zabroski that "[w]e're going to have to make a stop" before returning to the sheriff's office, and that Deputy Zabroski then interrogated the defendant by asking him questions. The court ruled that it was incumbent upon the prosecution to prove by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights when he responded to Deputy Zabroski's questions. Applying the clear and convincing standard of proof, the court concluded that since the Miranda advisement two hours previously was "in somewhat vague terms," the defendant did not knowingly, intelligently, and voluntarily waive his Miranda rights in responding to Zabroski's questions. The court accordingly suppressed the responses made by the defendant at his home to Deputy Zabroski's questions, and also suppressed the defendant's subsequent written confession and the items of stolen property recovered from the creek bed as the fruits of the unlawful interrogation.

The People filed this interlocutory appeal pursuant to C.A.R. 4.1, claiming that the district court erred in requiring the prosecution to establish a valid Miranda waiver by clear and convincing evidence.

II.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court promulgated procedural safeguards to protect the constitutional rights of a person subjected to custodial police interrogation. Miranda holds that prior to any custodial interrogation "the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444, 86 S.Ct. at 1612. A suspect who invokes his right to counsel after being advised of his rights is not subject to further interrogation until counsel is made available to him, unless the suspect himself "initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). If the suspect invokes his right to silence and not his right to confer with an attorney, further interrogation is permissible only under circumstances when the resumption of questioning is consistent with the scrupulous observance of the suspect's right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 102-04, 96 S.Ct. 321, 325-27, 46 L.Ed.2d 313 (1975); People v. Quezada, 731 P.2d 730, 734 (Colo.1987).

The Miranda warnings need not be a precise incantation of the language contained in the Miranda opinion. California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). What is required is that the suspect 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. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630; see Prysock, 453 U.S. at 360, 101 S.Ct. at 2809; People v. Gilmer, 182 Colo. 96, 100, 511 P.2d 494, 496 (1973). A suspect may waive these rights as long as the waiver is knowingly, intelligently, and voluntarily made. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The inquiry into whether a suspect has validly waived his Miranda rights involves two distinct dimensions:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness, both of the nature of the right being abandoned and the consequences of the decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). To be valid, a Miranda waiver need not be express, but may be inferred from the actions and words of the person interrogated. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

Following the Miranda decision, there was some uncertainty with respect to the burden of proof applicable to establish a waiver of Miranda rights. Since the Miranda opinion stated that "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel," 384 U.S. at 475, 86 S.Ct. at 1628, our prior decisions imposed on the prosecution the burden of establishing a Miranda waiver by clear and convincing evidence. E.g., People v. Connelly, 702 P.2d 722, 729 (Colo.1985), rev'd sub nom. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); ...