People v. Mascarenas, 97CA0922

• Decision Date: 13 November 1998
• Docket Number: No. 97CA0922,97CA0922
• Citation: 972 P.2d 717
• Parties: 98 CJ C.A.R. 5744 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph MASCARENAS, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 717

972 P.2d 717

98 CJ C.A.R. 5744

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph MASCARENAS, Defendant-Appellant.

No. 97CA0922.

Colorado Court of Appeals Div. II.

Nov. 13, 1998.

Rehearing Denied Dec. 10, 1998.

Certiorari Denied March 15, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Christine Cates Brady, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, Joseph Mascarenas, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of cocaine. We affirm.

Police were dispatched to the home defendant shared with his girlfriend after the girlfriend's daughter reported a domestic dispute. During a search of the house, officers discovered defendant in the basement. While they were frisking him for weapons, two packets of cocaine fell out of his sock.

The trial court denied defendant's motion to suppress the evidence, and the conviction here at issue followed.

I.

Defendant raises several challenges to the trial court's denial of his motion to suppress. In addressing these contentions, we defer to the trial court's factual findings, and may reverse only where the trial court's conclusions are unsupported by its evidentiary findings or where it applied an erroneous legal standard. Petersen v. People, 939 P.2d 824 (Colo.1997).

A.

Defendant first contends that the initial entry into and subsequent search of his home were unlawful. We do not agree.

Warrantless searches and seizures are presumptively unconstitutional, see People v. Higbee, 802 P.2d 1085 (Colo.1990), and the prosecution has the burden of establishing that a warrantless search was justified under the circumstances. People v. Thompson, 770 P.2d 1282 (Colo.1989).

A warrantless entry into a home is justified if there was probable cause to search and exigent circumstances existed at the time of the unauthorized entry. One situation which may constitute exigent circumstances is the existence of a colorable claim of emergency threatening the life or safety of another. People v. Miller, 773 P.2d 1053 (Colo.1989); People v. Marez, 916 P.2d 543 (Colo.App.1995).

This "emergency" variant of exigent circumstances requires a showing of immediate crisis inside the home and the probability that police assistance will be helpful in alleviating that crisis. In determining whether this showing has been made, a court must examine the totality of the circumstances, including the delay likely to be occasioned by obtaining a warrant, the character of the investigation, and the potential risk posed to other persons from the delay. These facts are to be evaluated as they would have appeared to a prudent and trained police officer at the time of the challenged entry. People v. Higbee, supra; People v. Marez, supra.

The emergency exigent circumstances principle has been invoked in domestic violence situations to justify a warrantless entry into a home. See People v. Thompson, supra; People v. Reynolds, 672 P.2d 529 (Colo.1983). In such situations, an immediate search of the home may be necessary to determine if there are any injured parties or if the perpetrator of the violence is still on the premises. However, the search may not be a general exploratory search, but is circumscribed by the exigency which initially justified it. See People v. Thompson, supra.

Under these standards, both the initial entry and the subsequent search were justified in this case. The officers were responding to a domestic violence report made by a family member. She had called the police after receiving a call from her eleven-year-old sister, who was present in the home at the time of the altercation. The officers testified that when defendant's girlfriend answered the door, her face was flushed, she appeared upset, and she had an old black eye. The girlfriend denied that there had been any violence, but admitted that she had a fight with defendant. One officer described the home as appearing "a little ransacked."

The officers had extensive experience responding to domestic violence calls. One officer testified that victims in domestic violence situations are often uncooperative and "they tell you nothing happened even if it did." The other explained that it is standard procedure in such situations to talk to all parties to make sure no one is harmed or needs assistance.

In these circumstances, it was not unreasonable for the officers to enter the home, even though defendant's girlfriend denied that there had been any violence.

Nor was the officers' subsequent search unreasonable in its scope. The girlfriend initially told the officers she thought defendant had left. However, after the police entered the house, the girlfriend's daughter told them that defendant was in the basement. At that point, the officers needed to ascertain defendant's whereabouts and his condition, and to determine whether anyone else was hurt. One officer testified that he was concerned that "we might go downstairs and see her boyfriend all beat up. You know, I had never seen him. I didn't know what his condition was either." Similarly, the other explained that "we did not know if [defendant's girlfriend] was actually the assaulter and not the assaultee or if [defendant] was still okay and still alive in the basement." In this situation, it was not unreasonable for the officers to extend their search to the basement.

Because we conclude that the officers' warrantless entry into and search of defendant's home were justified, we do not reach the issue of whether his girlfriend consented to the initial entry.

B.

Defendant next argues that the officers were not justified in conducting a pat-down search of him when they found him in the basement. Specifically, he contends, first, that the trial court erred in applying a "reasonable suspicion" standard, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to decide whether the pat-down search was justified. He maintains that this standard applies only to investigative stops in public places, not to searches of a person in his or her home. Second, he argues that even if the "reasonable suspicion" standard applies, the police did not have a reasonable basis for suspecting that he was engaged in criminal activity or that he was armed. We disagree with both contentions.

Under Terry v. Ohio, supra, police may conduct a pat-down weapons search, or frisk, if specific, articulable facts, taken together with inferences which may be drawn from those facts, give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity. People v. Hughes, 767 P.2d 1201 (Colo.1989); see also § 16-3-103, C.R.S.1998 (police officer may stop any person who officer reasonably suspects is committing, has committed, or is about to commit a crime, and, if officer reasonably suspects that his or her personal safety requires it, may conduct a pat-down search of that person for weapons).

Contrary to defendant's contention, the "reasonable suspicion" standard may in certain circumstances apply to pat-down weapons searches in situations other than an investigative stop on the street or in another public place. See People v. Hughes, supra (upholding stop and frisk of individual present in drug seller's apartment at time police executed search warrant); People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977)(stop and frisk of defendant near door to his home did not violate Fourth Amendment where police had legitimate basis service of a search warrant for initially contacting defendant, and had reasonable basis for suspecting that defendant might be armed).

Here, as discussed above, the police had a legitimate basis for their initial entry into and search of defendant's home. When they encountered defendant, they also had a reasonable basis for conducting a pat-down search to ascertain whether he was armed. Although defendant appeared to be sleeping when the officers approached him, they observed a cold, full, open beer can next to him, and "deduced from this that he had just gotten downstairs." The girlfriend had denied that weapons had been used in the altercation; however, the officers were aware that she had not given them truthful information as to defendant's whereabouts.

Moreover, based on their experience, the officers knew that domestic violence situations were particularly dangerous. One officer testified that they had been instructed to conduct pat-down searches in such situations "for our own safety to make sure they don't have ... weapons so they won't harm themselves or the officers."

The trial court thus did not err in applying the "reasonable suspicion" standard and in concluding that, under that standard, the pat-down search of defendant was justified. Further, when the officers felt a hard object in defendant's sock during the course of their pat-down search, they were justified in removing the object to determine if it was a weapon or other dangerous instrument that could jeopardize their safety. See People v. Ratcliff, 778 P.2d 1371 (Colo.1989).

C.

Defendant next contends that, even if police lawfully frisked him for weapons, they were not justified in seizing and opening the cocaine "bindles" which fell out of his sock when they pulled out the hard object. Again, we do not agree.

Under the plain view doctrine, a police officer may lawfully seize an object encountered in the course of a lawful pat-down search if the officer has reasonable grounds to believe the object is incriminating. A plain view seizure requires that the facts available to the officer would warrant a person of reasonable caution to believe that the items are contraband, fruits or...