People v. Lindsey

• Decision Date: 16 August 1990
• Docket Number: No. 88CA0274,88CA0274
• Citation: 805 P.2d 1134
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donnie Rae LINDSEY, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1134

805 P.2d 1134

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donnie Rae LINDSEY, Defendant-Appellant.

No. 88CA0274.

Colorado Court of Appeals,

Div. I.

Aug. 16, 1990.

Rehearing Denied Sept. 6, 1990.

Certiorari Denied March 11, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Donnie Ray Lindsey, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree murder, attempted aggravated robbery, and use of a deadly weapon. We affirm.

I.

Defendant was arrested by Denver police officers in his girlfriend's house in the City of Aurora. In response to a knock on the door, the girlfriend admitted the officers and spoke with them briefly. They became suspicious that defendant was present, entered a bedroom, and found him in a closet.

Defendant contends that the trial court erred in denying his motion to suppress his confession and other evidence arising from his warrantless arrest. He asserts that the arrest by Denver police in Aurora was extraterritorial and, as such, in violation of § 16-3-106, C.R.S. (1986 Repl.Vol. 8A), was not otherwise justified and, therefore, violated his Fourth Amendment right to be free from unreasonable searches and seizures. Although we agree that the arresting officers technically violated the statute, we agree with the trial court that the arrest was otherwise justified and, therefore, that suppression was not required.

Section 16-3-106, by negative inference, limits peace officers' authority to arrest to the territorial boundaries of their jurisdiction unless they are in "fresh pursuit" of a suspect, People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979), or are accompanied by officers of the jurisdiction in which the arrest was made. See People v. Wolf, 635 P.2d 213 (Colo.1981). "Fresh pursuit" means the continuous and uninterrupted pursuit of a suspect without unnecessary delay after the commission of an offense. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979); see § 16-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8A).

The People do not argue that the Denver police officers drove from Denver to Aurora in fresh pursuit of defendant. They assert, instead, that fresh pursuit came into play after the officers had entered defendant's girlfriend's house, with her consent, and realized that defendant was there. The arrest, however, was some six weeks after the commission of the offense. Therefore, it was not accomplished in "fresh pursuit" of defendant, and, in order to comply with the statute, the Denver officers should have contacted Aurora police. See Charnes v. Arnold, supra.

An arrest in violation of the statute, however, does not mandate suppression of evidence obtained therefrom unless the violation is willful, People v. Vigil, 729 P.2d 360 (Colo.1986) or so egregious as to violate the defendant's constitutional rights. People v. Hamilton, 666 P.2d 152 (Colo.1983).

Here, the trial court implicitly found that the officers' conduct was not willful. The officers testified that they traveled to Aurora, not specifically to arrest the defendant, but rather to investigate leads of which they had learned that evening. Although one officer stated that he thought there was a "good chance" the defendant would be at the house, the other said the opposite, and both officers described the purpose of the trip as investigatory. In addition, contrary to standard procedure when arresting a murder suspect, they entered the house with holstered rather than drawn weapons, and without any back-up officers. Because there is competent evidence to support the trial court's finding on this issue, and because the finding depended on an assessment of witness credibility, we may not disturb it on review. See People v. Torand, 622 P.2d 562 (Colo.1981).

Defendant argues, however, that his arrest was unconstitutional because the officers searched the house without either consent or exigent circumstances. The People, on the other hand, assert that defendant's girlfriend consented to the search and, even if she did not, that probable cause and exigent circumstances rendered the arrest proper. Because defendant concedes that the record supports a finding of probable cause and of consent by his girlfriend to enter her home, and because we conclude that exigent circumstances justified the arrest even if no consent was given to search the house, we need not consider whether defendant's girlfriend consented to the scope of the search.

The Fourth Amendment protects against nonconsensual entries by law enforcement officers into a dwelling for the purpose of making warrantless arrests. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). To the extent, and only to the extent, consent to enter and search has been given by the dwelling's owner, People v. Thiret, 685 P.2d 193 (Colo.1984), an arrest does not violate the Fourth Amendment as long as the officers have probable cause to arrest. People v. Lesko, 701 P.2d 638 (Colo.App.1985). However, to the extent consent has not been given, the arrest is free from Fourth Amendment taint only if both probable cause and exigent circumstances exist at the time of entry. Payton v. New York, supra; People v. Drake, 785 P.2d 1257 (Colo.1990).

Exigent circumstances exist only when there is a pressing need "that [can]not brook the delay incident to obtaining a warrant." Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970). Pertinent considerations include whether:

"(1) a grave offense is involved, particularly a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists a clear showing of probable cause to believe that the suspect committed the crime; (4) there is a strong reason to believe that the suspect is in the premises being entered; (5) the likelihood exists that the suspect will escape if not swiftly apprehended; and (6) the entry is made peaceably."

People v. Miller, 773 P.2d 1053 (Colo.1989).

Here, it is conceded that defendant's girlfriend consented to the officers' entrance into her home. After the officers entered, the record reflects that they asked the girlfriend a few questions concerning the defendant. Her nervous responses, as described by the officers--including stumbling on words, head and hand movements pointing to the back of the house, and finally, the statement that defendant had been there but had just left and would be back--caused the officers strongly to suspect that defendant was on the premises.

After the officers, in response to the girlfriend's gestures, had gone to the back of the house, they saw and heard movement in a cluttered closet. This gave them still more reason to believe the defendant was there. At that point, the officers did, in fact, draw their weapons.

Because of earlier statements to the police by a recent roommate of defendant's, the officers had a clear showing of probable cause to arrest defendant for a grave offense and had reason to believe that defendant, now that he knew he was implicated, would immediately attempt to flee from the area. Even before knowing he had been implicated in the crime, defendant reportedly had told his roommate that he intended to leave town.

Because the trial court's finding that exigent circumstances existed is supported by the record, we will not disturb it. And, because exigent circumstances and probable cause for the arrest existed, defendant's arrest was not in violation of the Fourth Amendment, and the fruits of the arrest were properly admitted into evidence. See People v. Drake, supra.

II.

Defendant next contends that his right to privacy, as guaranteed by the Due Process Clause of the Fourteenth Amendment, was violated when the trial court allowed the prosecution to question his stepmother about a confession he made to her in confidence. We do not agree.

Whether the constitutional right to privacy encompasses a privilege to prevent the introduction of testimony concerning confidential communications between parent and child is a question that has not been decided in Colorado. And, we do not now resolve that issue because, based on the law applicable to similar existing privileges, we conclude that even if such a privilege exists, the defendant has waived it here.

Testimonial privileges based on confidential communications are waived when the communication is made in the presence of a third party, South Carolina Insurance Co. v. Fisher, 698 P.2d 1369 (Colo.App.1984), and when the party asserting the privilege has voluntarily revealed the confidential information to another. United States v. Bump, 605 F.2d 548 (10th Cir.1979); see Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934).

Here, it is undisputed that the communication defendant and his stepmother sought to exclude was made by defendant in the presence not only of his stepmother, but also of his brother. It is also undisputed that defendant revealed both the subject matter (a confession to the crime) and the fact of the communication to his roommate. Accordingly, any privilege based on the confidential nature of the communication was waived.

III.

Defendant also asserts that the trial court erred in admitting evidence of defendant's admission that he had unsuccessfully followed another woman with the intention of stealing her purse just prior to the incident for which he was on trial. He argues that the evidence concerned a similar offense that was not probative of any issue at trial and was thus inadmissible under CRE 404. Again, we disagree.

Evidence of crimes independent of that for which a defendant is on trial is to be admitted only in limited circumstances and is subject to specific precautions....