People v. Nelson

• Decision Date: 07 June 2012
• Docket Number: No. 08CA0775.,08CA0775.
• Citation: 296 P.3d 177
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Harvey NELSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

296 P.3d 177

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Harvey NELSON, Defendant–Appellant.

No. 08CA0775.

Colorado Court of Appeals, Div. I.

March 15, 2012.

As Modified on Denial of Rehearing June 7, 2012.

John W. Suthers, Attorney General, Rebecca A. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge TAUBMAN.

¶ 1 Defendant, Harvey Nelson, appeals the judgment of conviction entered upon jury verdicts finding him guilty of numerous illegal substance-related offenses. His sole contention on appeal is that the trial court erred in denying his motion to suppress evidence based on police officers' allegedly unconstitutional entry and search of his residence. We conclude that the case must be remanded to the trial court for further proceedings.

I. Background

A. Evidence

¶ 2 The following evidence was presented at the suppression hearing. On January 27, 2006, police officers went to an apartment building after receiving a tip from an anonymous informant that narcotics distribution was occurring in apartment 114. Officer Andrews spoke to the apartment manager, who informed him that a man who was not named on the lease was residing in the unit and had paid the rent.

¶ 3 Officer Andrews, who was in police uniform, was assisted by Officer Eberhart, who was wearing plain clothes. The officers wanted to conduct a “knock and talk” with the apartment's occupants to gather more information and seek consent to search the apartment. Therefore, they determined that Officer Eberhart would knock on the door, while Officer Andrews stayed out of sight.

¶ 4 Officer Eberhart knocked on the apartment door, waited approximately one minute, and knocked again. A voice from inside asked who it was, and Officer Eberhart responded, “Maintenance.” Nelson opened the door and stood “directly in front of” it. Officer Eberhart was able to see another man inside the apartment. At that point, Officer Andrews walked up behind Officer Eberhart, and the other man inside ran toward the back of the apartment. Officer Andrews entered the apartment in pursuit of the man, while Officer Eberhart pulled Nelson to the ground in the doorway to keep him from interfering with Officer Andrews.

¶ 5 Officer Andrews testified that, when Nelson opened the door, he saw a glass pipe commonly used for smoking marijuana on a table inside the apartment. When he noticed the other man running, he assumed that he was fleeing, destroying evidence, or trying to obtain a weapon. Officer Andrews chased him out the back door of the apartment, where the man dropped a knife. The officer then apprehended him, recovered packets of methamphetamine from his pockets, and brought him back inside the apartment.

B. Factual Findings and Legal Conclusions

¶ 6 The trial court first determined that Nelson had standing to challenge the search of the apartment because he was in the apartment with the written lessee's consent.

¶ 7 The court also determined that the officers' decision to use a ruse to get Nelson to open the door was not improper and did not violate the Fourth Amendment, as the officers “merely used a false statement at the door to have the door opened.”

¶ 8 The court next concluded that the warrantless entry into the apartment was constitutional. The court found that the glass pipe was in plain view and gave the officers probable cause to believe evidence of a crime was inside. The other man's flight toward the back of the apartment and out of Officer Andrews's view amounted to exigent circumstances justifying the entry “to apprehend the suspect and to ensure that no weapon was used, or about to be used, and to preserve the evidence.”

II. Nelson Had Standing to Challenge the Search

¶ 9 Initially, the People contend that Nelson lacked standing to challenge the search because he was not an “overnight guest” and, after the entry and search began, he stated that he did not live there. We disagree.

¶ 10 Before a defendant can challenge the constitutionality of a search, he or she must establish that he or she has standing, which is “a legitimate expectation of privacy in the areas searched or the items seized.” People v. Juarez, 770 P.2d 1286, 1288–89 (Colo.1989) (quoting People v. Naranjo, 686 P.2d 1343, 1345 (Colo.1984)); see Minnesota v. Olson, 495 U.S. 91, 95–96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (an overnight guest has a reasonable expectation of privacy and thus has standing to challenge a warrantless arrest).

¶ 11 Undisputed facts adduced at the suppression hearing showed that Nelson was living in the apartment. The apartment manager testified that Nelson had provided three months rent for the apartment. Officer Andrews testified that the named lessee told him that her friend and the friend's boyfriend (Nelson) lived there and that he believed Nelson was living there. The lessee testified that she rented the apartment so that her friend could live there with Nelson, and she consented to his living there. See People v. Curtis, 959 P.2d 434, 437 (Colo.1998) (the question in determining standing is “whether the defendant demonstrates a sufficient connection to the areas searched or the items seized based on the totality of the circumstances”).

¶ 12 Accordingly, the People's “overnight guest” argument is not supported by the record. Further, we reject the People's argument that, because Nelson said he did not live in the apartment when he was asked to consent to a search, he lost standing to challenge it. The record shows that Nelson was actually living there, despite his later statement. Thus, he had standing to challenge the entry and search.

III. The Entry into Nelson's Apartment Was Legal

¶ 13 Nelson contends the trial court erred as a matter of law in concluding that the warrantless entry into his apartment did not violate his constitutional rights. SeeU.S. Const. amend. IV; Colo. Const. art. II, § 7. We do not agree.

A. Standard of Review

¶ 14 A ruling on a motion to suppress requires the trial court to make findings of historical fact and apply controlling legal standards to the established facts. People v. Pate, 71 P.3d 1005, 1010 (Colo.2003). “The trial court's findings of historical facts are entitled to deference and will not be overturned if supported by competent evidence in the record.” Id. However, the appellate court analyzes de novo the trial court's application of legal standards to those facts as a question of law. People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.2001).

B. The “Maintenance” Ruse Was Not Illegal

¶ 15 Nelson asserts that the entry into the apartment was illegal because Officer Eberhart used a ruse by identifying himself as “maintenance” to cause him to open the door. We do not agree.

¶ 16 Courts generally do not condone police deception. However, “the limited use of ruses is supported by the overwhelming weight of authority.” People v. Zamora, 940 P.2d 939, 942 (Colo.App.1996).

¶ 17 Courts examining police “ruses” generally do so in the context of whether consent to enter or search is constitutionally valid. For example, in Krause v. Commonwealth, 206 S.W.3d 922, 926 (Ky.2006), a police officer falsely informed the man who opened the door that he wanted to examine the house in order to determine whether it was the location where a young girl had recently been raped. The Kentucky Supreme Court concluded that the use of this ruse coerced the consent to enter the home. Id.; see McCall v. People, 623 P.2d 397, 403 (Colo.1981) (where a consensual entry into a home “is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking”), overruled on other grounds by People v. Davis, 187 P.3d 562 (Colo.2008).

¶ 18 The difference between a permissible consensual encounter at a person's doorway and an impermissible constructive entry depends on whether there was coercive conduct or a display of force by police officers. See United States v. Thomas, 430 F.3d 274, 276–78 (6th Cir.2005). “It is constitutionally permissible for police officers to knock at the entrance to a residence and seek permission to enter for the purpose of inquiry, and, if the occupant validly consents, the officers may enter without a warrant.” People v. Bostic, 148 P.3d 250, 254 (Colo.App.2006) (citing People v. Milton, 826 P.2d 1282, 1285 (Colo.1992)); see State v. Brown, 356 Ark. 460, 156 S.W.3d 722, 727 (2004) (a knock and talk procedure “is not per se violative of the Fourth Amendment”).

¶ 19 Here, the officers testified that they wished to conduct a knock and talk investigation to seek consent to enter the apartment. The ruse was intended only to get a person inside the apartment to open the door; it was not intended or used to deceive any person into giving consent to enter or search the apartment.

¶ 20 Nelson argues that the “maintenance” ruse violated his Fourth Amendment rights simply because it caused him to open the apartment door. However, courts addressing cases with similar circumstances generally find that a ruse to have someone open the door, in and of itself, is permissible.

¶ 21 For example, in United States v. Alejandro, 368 F.3d 130, 137 (2d Cir.2004), the court held that a police officer's use of a ruse—telling the defendant through a closed door that he was a utility company employee who needed to check a gas leak—did not violate the defendant's Fourth Amendment rights. See United States v. Garcia, 997 F.2d 1273, 1280 (9th Cir.1993) (officers posed as potential renters of property, spoke to the defendant through the back patio door, and saw a package of cocaine in plain view; court found that neither the officers' status nor the ruse caused the search to violate the Fourth Amendment); United States v. Leung, 929 F.2d 1204, 1207–08 (7th Cir.1991) (officers asked hotel housekeeper to knock on door and say she was there to...