People v. Key, Court of Appeals No. 07CA1257 (Colo. App. 3/18/2010)
| Decision Date | 18 March 2010 |
| Docket Number | No. 07CA1257.,07CA1257. |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Jeffrey Allen Key, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Defendant, Jeffrey Allen Key, appeals the judgment of conviction entered on jury verdicts finding him guilty of felony theft, misdemeanor theft, and unlawful use of a financial transaction device. Defendant also challenges the manner in which his sentence was imposed. We affirm.
JUDGMENT AND SENTENCE AFFIRMED.
John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE BERNARD.
On a night in August 2006, two women reported to the police that, when they were in a nightclub, someone stole a cell phone from a coat and a wallet from a purse. The wallet contained $15 in cash and two debit cards — one that belonged to the victim, which had been placed in an envelope that contained the card's PIN number, and another that belonged to the victim's employer. A nightclub bouncer told police that he saw defendant go in and out of the nightclub several times that night.
The next day, a bank surveillance system videotaped a man — whose face and body were partially shrouded by a T-shirt or a blanket — using the stolen debit cards to make five, $200 withdrawals from one of the victim's bank accounts, and attempting to withdraw funds from the employer's bank account. Later, a detective watched this bank surveillance video and concluded the culprit was defendant — a man he had known for approximately seven years.
Less than two weeks later, a police officer stopped and arrested defendant for driving under restraint. After the arrest, the officer searched the passenger compartment of defendant's car, and he found the cell phone that had been stolen from the nightclub.
Defendant said that the phone was not his. He stated that he had found it in a park, and he was planning on turning it in. Phone records revealed that phone numbers associated with defendant were dialed from the cell phone around the same time as the ATM withdrawals. The police never found the wallet or debit cards that had been stolen.
The police later searched defendant's car again pursuant to a warrant, and found other evidence.
The court subsequently denied defendant's motion to suppress the evidence that was seized in the searches.
Defendant's trial was held in April 2007. On the morning of trial, defendant pled guilty to driving under restraint and to two misdemeanor theft counts. The guilty pleas for theft were based on the evidence that was recovered during the search of his car conducted pursuant to the search warrant.
The prosecution introduced the bank surveillance video as evidence during the trial, along with photographs that police took of defendant with a T-shirt draped over his head and body, in positions similar to those of the man in the surveillance video. Over defendant's objection, the trial court granted the jury unrestricted access to the video during its deliberations.
The jury convicted defendant of felony theft and misdemeanor theft based on items seized during the warrantless search of defendant's car, and unlawful use of a financial transaction device.
In May 2007, the trial court found that defendant had violated the terms of his probation for a felony theft that he committed in 2004.
A different judge presided over the sentencing hearing. Defendant did not object to this substitution at the hearing. Defendant requested a continuance of the sentencing hearing, which the court denied.
The court sentenced defendant to a one-year jail term for the misdemeanors to which he had pled guilty on the morning of trial; a six-month jail term for the misdemeanor of which he was convicted at trial; three years in prison for unlawful use of a transaction device; and six years for felony theft. The court ordered that these sentences were to run concurrently with each other, and consecutively to a three-year prison sentence imposed in the 2004 felony theft case.
Defendant argues that we should reverse the convictions arising out of his trial because the search of his car that discovered the incriminating evidence on which these convictions were based violated the Fourth Amendment. He contends that the United States Supreme Court's recent decision of Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710 (2009), expressly holds that certain searches of automobiles incident to arrest, such as the one here, are unconstitutional. In the alternative, defendant submits that we should remand this case to the trial court for further findings in light of Gant.
We agree that Gant must be applied to resolve his case because this direct appeal was pending when Gant was decided. However, we disagree that Gant requires us to reverse defendant's convictions, or to order a remand for additional findings, for the following reasons.
The trial court determined, and we agree, that the search of the car was permissible under our supreme court's pre-Gant jurisprudence. This major premise leads us to a minor premise: the officers who conducted the search acted reasonably in good faith when they relied on this jurisprudence. We complete this syllogism by concluding that, although Gant indisputably overrules our supreme court's jurisprudence in this area, in this case its effect is only to render the search a good-faith "technical violation" of the law, which means that the evidence remains admissible under section 16-3-308, C.R.S. 2009.
In reaching this conclusion, we recognize that the exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348 (1974). Therefore, in order to understand the contours of the exclusionary rule, and any potential constitutional effect that those contours might have on section 16-3-308, we must discuss how the United States Supreme Court and our supreme court have interpreted the exclusionary rule and the good faith exception to the rule. It is important to do so here because (1) the United States Supreme Court has not yet considered whether the good faith exception applies when the police rely on a judicial precedent that is later overruled; and (2) our supreme court has only considered such applicability where, unlike here, the case involved a stricter standard under the Colorado Constitution than that required by the United States Constitution.
Before trial, defendant filed a motion to suppress the cell phone, arguing that the search of the car that discovered it was illegal. A hearing was held on this motion in February 2007.
In a written response to defendant's motion, the prosecution stated that (1) the police had lawfully arrested defendant after he was stopped driving a car; (2) the search of the car that discovered the incriminating evidence, the cell phone, was a lawful search incident to defendant's arrest; and (3) citing People v. Savedra, 907 P.2d 596, 598 (Colo. 1995), "[t]he passenger compartment of the automobile may be searched by police pursuant to arrest even where [the] arrestee is away from the vehicle and safely within police custody at the time of the search."
The evidence at the suppression hearing established that a police officer had reason to believe that defendant had stolen property in his car. The officer was aware that defendant's driving privileges were revoked. When the officer saw defendant driving his car, the officer stopped defendant and arrested him. The officer handcuffed defendant, and placed him in a patrol car. The officer then searched defendant's car, and discovered the cell phone on the floor.
Subsequently, the car was searched pursuant to a warrant. As a result, the police also recovered additional evidence.
Defendant argued that the arrest was not lawful. Therefore, in his view, the search incident to the arrest was not lawful.
The prosecution contended that the arrest was legal, and that the cell phone had been seized incident to that lawful arrest. The prosecution also submitted that, because the car was later searched pursuant to a search warrant, the cell phone inevitably would have been discovered, and that defendant did not have standing to contest the seizure of the cell phone because he told the police that he had found it and did not own it.
The trial court determined that the arrest was valid. Therefore, the court decided that the cell phone was properly seized incident to defendant's arrest, and denied the motion to suppress. The court stated that the cell phone would be admissible evidence because defendant "asserted [that it] was not his," suggesting that the court determined that defendant did not have standing to contest the search of the car that led to the seizure of the cell phone. The court also determined that the other items were lawfully seized in the second search of the car, which had been conducted with a search warrant. Last, the court did not respond to the prosecutor's inevitable discovery argument.
Defendant filed a timely appeal from his convictions, which was pending when Gant was decided in April 2009.
When reviewing a motion to suppress, we defer to the trial court's findings of fact if they are supported by competent evidence in the record, but we review the trial court's legal conclusions de novo. People v. Heilman, 52 P.3d 224, 227 (Colo. 2002). We may determine the legal effect of undisputed...
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