People v. Martinez, 05CA0096.

• Decision Date: 08 March 2007
• Docket Number: No. 05CA0096.,05CA0096.
• Citation: 165 P.3d 907
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gabriel A. MARTINEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

165 P.3d 907

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gabriel A. MARTINEZ, Defendant-Appellant.

No. 05CA0096.

Colorado Court of Appeals, Div. VI.

March 8, 2007.

Certiorari Denied August 13, 2007.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kimberly K. Caster, Centennial, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Gabriel A. Martinez, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual exploitation of children (possession of sexually exploitative materials), unlawful manufacture of a schedule II controlled substance, and unlawful possession of a schedule II controlled substance. Defendant also appeals the sentence imposed upon the jury's finding that he committed the possession offense as a special offender by having a deadly weapon available for use. We affirm.

I.

Defendant first argues that the trial court erred by denying his motion to suppress evidence obtained as the result of an allegedly unlawful search. More specifically, defendant claims that police officers acted unreasonably when, during the execution of a search warrant authorizing a search of his father's residence for evidence of crimes committed by his father, the officers searched defendant's bedroom. We disagree.

The Fourth Amendment to the United States Constitution and article II, section 7, of the Colorado Constitution prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized.

The manifest purpose of [the Fourth Amendment's] particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found."

Maryland v. Garrison, 480 U.S. 79, 84-85, 107 S.Ct. 1013, 1016-17, 94 L.Ed.2d 72 (1987)(quoting United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982))(footnote omitted) (the constitutional reasonableness of police officers' actions in executing a search warrant is to be judged "in light of the information available to them at the time they acted").

A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Medina, 25 P.3d 1216 (Colo.2001). An appellate court must defer to the trial court's findings of fact if they are supported by competent evidence in the record, but reviews its conclusions of law de novo. People v. Garcia, 11 P.3d 449 (Colo. 2000).

Here, police officers applied for a warrant to search a single-story home occupied by defendant's father. The affidavit supporting this application stated that a twelve-year-old girl had informed the officers that defendant's father had fondled her and offered her money to pose for digital photographs. The affidavit also included statements indicating the house contained several computers, a handgun, and marijuana.

Based on this affidavit, the court issued a warrant authorizing a search of the house for child pornography, adult pornography, computer equipment, cannabis, firearms, illegal weapons, and any records relating to the purchase or distribution of child pornography.

When police officers arrived at the house to execute the warrant, they observed two exterior doors, though there were no visible indications that the entrances were for discrete portions of the house. Nor were there any other outward indicia of dual occupancy, such as multiple mail boxes or utility meters.

The interior of the house was divided into a living room, a den, a kitchen, a bathroom, a laundry room, and two bedrooms. Defendant's father and mother were present in the home; defendant was not.

As one of the officers approached the back bedroom, defendant's mother objected. Defendant's mother informed the officer that the room was defendant's, and that she only entered it to do defendant's laundry. However, the door to the bedroom was open, and the officer did not see any indication that defendant's mother was doing laundry.

Officers then entered the room and conducted a search using a dog. The officers discovered a small amount of marijuana, a piece of tin foil with methamphetamine residue, a handgun, a large collection of adult pornographic videotapes, and a film canister containing methamphetamine.

The foregoing facts are not in dispute. However, on appeal, defendant relies on the trial court's finding, made as part of its written order, that defendant's mother "told the officers that defendant rented the bedroom in the back of the home." By contrast, the People rely on the trial court's finding, made as part of its oral ruling at the conclusion of the suppression hearing, that defendant's mother did not tell the officers that defendant paid rent.

The trial court did not reconcile these conflicting findings because, in its written order denying defendant's motion to suppress, the court explained that, although it "could reasonably conclude that defendant's room was not a separate living space," it was instead relying on an exigent circumstances rationale. Specifically, the trial court concluded exigent circumstances existed because defendant's mother could have destroyed files stored on defendant's computer while the officers were obtaining a supplemental warrant authorizing a search of defendant's room. In addition, the court concluded a second exigency existed because the officers needed to find the handgun identified in the warrant.

We decline to follow the trial court's method of analysis because we question whether sufficient exigency existed to allow immediate police entry into defendant's room. It is not clear to us that the police faced a choice of only two options, that is, either entering immediately or taking the risk that evidence would be destroyed or the gun lost or used in a hostile manner. Because there is no indication in the record that the officers had reason to believe the room was occupied, it appears a third option may have existed: the police could simply have prevented access to the room while they attempted to obtain another warrant. See Illinois v. McArthur, 531 U.S. 326, 336-37, 121 S.Ct. 946, 953, 148 L.Ed.2d 838 (2001).

In light of this possibility, we consider whether the search of defendant's room was reasonable because the warrant authorized a search of the entire house.

We note that our ability to make that assessment is complicated by the trial court's contradictory findings concerning whether defendant's mother informed the officers that defendant paid rent for the room. Accordingly, for purposes of analysis, we shall view this aspect of the evidence in the light most favorable to defendant and presume that defendant's mother in fact told the officers that defendant was a renter. With that as our premise, we proceed to a review of the relevant authorities.

In People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970), our supreme court applied the Fourth Amendment's particularity requirement to a search warrant authorizing the search of a single-family residence that had been converted into a boarding house with eleven rooms occupied as separate dwelling units by college students. In upholding the trial court's ruling, the supreme court set forth the following rule:

[W]hen authority is desired to search a . . . particular room or rooms within a multiple-occupancy structure, the warrant must sufficiently describe the . . . subunit to be searched, either by number or other designation, or by the name of the tenant or occupant; and where . . . the warrant merely describes the entire multiple-occupancy structure by street address only, without reference to the particular dwelling unit or units sought to be searched, it is constitutionally insufficient and the evidence seized pursuant to such a warrant will be suppressed upon proper motion.

People v. Avery, supra, 173 Colo. at 319, 478 P.2d at 312.

The next year, the supreme court recognized an exception to the Avery rule in People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971), a case in which officers obtained a warrant to search a house believing it to be a single-family residence but, "[a]fter the officers entered the premises, it became apparent that the house was divided into two living quarters on the main floor, with a third on the second floor." People v. Lucero, supra, 174 Colo. at 280, 483 P.2d at 969. In upholding the trial court's order denying a motion to suppress evidence of drugs seized from "quarters in the front of the house" occupied by the two co-defendants, the court distinguished Avery, as follows:

First, in Avery, the trial judge made a specific finding that the officers knew or should have known when they got their warrant that the building involved was a rooming house. In this case, the trial court made a finding, supported by the record, that the officers did not know that these were actually individual apartments until they had entered; and also, that they had every reason to believe that the house was a one-family residence.

Second, in Avery the search went beyond the area for which the officers had probable cause on the basis of their affidavit. In this case the only area actually searched was that under the control of the [codefendants], and the affidavit clearly reveals probable cause for such a search.

People v. Lucero, supra, 174 Colo. at 280-81, 483 P.2d at 970.

The supreme court's subsequent decisions demonstrate that the interplay of the Avery rule and the Lucero exception...