People v. Porter

• Decision Date: 14 September 1987
• Docket Number: No. 86SA445,86SA445
• Citation: 742 P.2d 922
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry Ray PORTER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 922

742 P.2d 922

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry Ray PORTER, Defendant-Appellee.

No. 86SA445.

Supreme Court of Colorado,

En Banc.

Sept. 14, 1987.

Douglass F. Primavera, Dist. Atty., Alamosa, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Bruce Boreson, Deputy State Public Defender, Alamosa, for defendant-appellee.

ROVIRA, Justice.

Prior to the trial of Larry Porter, the defendant, his confession was suppressed by the trial court. The basis for the suppression order was that the federal agents interrogating the defendant violated Fed.R.Crim.P. 5. In this interlocutory appeal, pursuant to C.A.R. 4.1, the People challenge the district court's order. We reverse.

I.

On June 4, 1986, the Federal Bureau of Investigation (FBI) in Austin, Texas, was alerted by the Colorado office of the FBI regarding a kidnapping and extortion attempt. Telephone calls demanding ransom for Kenneth Dabney of Creede, Colorado, had been received by his aunt and uncle in Creede and had been traced to Austin. One call ordered the aunt to go to a motel in Austin by 10:00 p.m. on the evening of June 4, with $324,000 in ransom money.

Dabney's aunt did not go to Austin. Instead, by an arrangement between the motel and the FBI, calls asking for the aunt were put on hold and traced. After three failed attempts, the call was successfully traced to a public telephone in Austin. An FBI agent on stakeout in the area near the telephone was alerted by radio, and he approached the telephone. He observed the defendant at the public telephone, and was informed by radio that the connection was broken at the same time he saw the defendant hang up. The agent attempted to follow the defendant to ascertain the whereabouts of the victim, but the surveillance was compromised and the defendant was arrested at approximately 10:30 p.m. At the scene, he was twice advised of his Miranda rights; he refused to sign the tendered Miranda waiver form, stating "I think I'll wait."

The defendant was taken to the FBI office in Austin, arriving there about 11:00 p.m. He was again advised of his Miranda rights and agreed to talk to FBI agents. He signed the written Miranda waiver form.

The defendant stated that he and Kenneth Dabney conspired together to deceive Dabney's aunt into paying the ransom, but that he did not know where Dabney was and had no way to get in touch with him. The FBI agents did not believe, with more than $300,000 in ransom demanded, the two co-conspirators would have no way to reestablish contact. Accordingly, the agents doubted the defendant's story and were still concerned with Dabney's safety.

At approximately 12:30 a.m. on June 5, 1986, the defendant was asked to take a polygraph test to confirm his story and verify that Dabney was not in danger. He agreed. The nearest polygrapher was 100 hundred miles away in San Antonio, so the defendant was placed in the county jail until the examiner arrived later that morning.

The defendant was picked up at about 8:30 a.m. and taken to the FBI office. The polygrapher arrived at about 10:00 a.m., and the examination began at 10:30 a.m. Prior to the examination, the defendant was again advised of his Miranda rights and given the questions he would be asked. The test, a major focus of which was the whereabouts of the victim, was then given, the results analyzed, and the defendant informed that the tests indicated he had not been truthful.

The defendant thereupon confessed, stating he had killed Dabney while attempting to kidnap him and that he had concealed the body in Colorado. The confession was reduced to writing. The defendant read it, made some corrections which he initialed, initialed each page, and then signed the last page about 3:30 p.m. He was then taken before a federal magistrate, where he was advised of his rights pursuant to Rule 5 of the Federal Rules of Criminal Procedure.

The defendant was subsequently charged in Colorado with murder, kidnapping, extortion, and a crime of violence. The defendant moved to suppress his statements and confession on numerous grounds, including violation of his right against self-incrimination under the Colorado and United States Constitutions and violation of Rule 5 of the Colorado and Federal Rules of Criminal Procedure. The trial court found that the FBI agents fully advised the defendant of his Miranda rights on at least four occasions before his confession was obtained, and that all of the defendant's statements were made after a voluntary, knowing, and intelligent waiver of his Miranda rights. Further, that under the totality of the circumstances, the statements were knowingly, intelligently, and voluntarily made. ¹ Accordingly, none of the defendant's constitutional rights were violated.

The court found, however, that the defendant was not taken before a magistrate as soon as possible. Instead, because of the FBI agents' concern for the victim's safety, they delayed until the polygraph examination could be performed. The court found this was "unnecessary delay" under Fed.R.Crim.P. 5, ² which the court held applicable because the defendant was under federal custody for federal charges.

Based on this analysis, the trial court suppressed all statements made during the polygraph test and afterward, including the written confession. The People appeal, arguing that state, not federal, law applies and that Colo.Crim.P. 5 ³ was not violated. In the alternative, the People argue that the trial court misapplied the federal law and the confession did not violate Fed.R.Crim.P. 5.

II.

A.

As a threshold issue, we agree with the trial court and the defendant that Colo.Crim.P. 5 does not apply. People v. Robinson, 192 Colo. 48, 556 P.2d 466 (1976), is dispositive of this issue. There, the defendant was arrested in Missouri for violations of both Missouri law and for being a fugitive from Colorado. He was held without advisement by a magistrate for a week, at which time he confessed. In his prosecution in Colorado, he argued that since Colo.Crim.P. 5 was clearly violated, his confession must be suppressed. We disagreed, observing that his argument "ignores the limited extraterritorial effect which the procedural rules of this jurisdiction can generally be given absent denial of constitutional rights.... A Missouri judge could not be expected to advise the defendant [pursuant to Colo.Crim.P. 5]."

The same reasoning applies here. The defendant was arrested in Texas by federal agents. Federal officers in Texas cannot be expected to know of the Colorado rules of procedure. At the stage of the proceeding where the defendant confessed, Colo.Crim.P. 5 was simply inapplicable, and the Federal Rules of Criminal Procedure controlled. See Corr, Criminal Procedure and the Conflict of Laws, 73 Geo. L.J. 1217, 1234 (suggesting law of jurisdiction where police activity took place controls in interstate criminal procedure matters).

B.

The People argue that the trial court incorrectly applied the federal law and that a delay necessary to safeguard an innocent victim is not "unnecessary." The defendant responds that the trial court correctly ruled that the FBI agents violated Fed.R.Crim.P. 5. Both parties apparently assume that if the applicable federal rule was violated the confession must be suppressed. We disagree with that assumption and, accordingly, need not decide whether or not the federal rule was violated.

The situation presented by this case--whether evidence obtained by non-constitutional violation in another jurisdiction is to be admitted in a criminal proceeding in the forum jurisdiction--is rare but not unknown. Some courts have applied a conflicts of law analysis in resolving this issue. E.g., People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381 (1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1499, 31 L.Ed.2d 796 (1972); Burge v. State, 443 S.W.2d 720 (Tex.Crim.App.), cert. denied, 396 U.S. 934, 90 S.Ct. 277, 24 L.Ed.2d 233 (1969). These courts analyze the issue as if it were a civil case and apply the choice of law method of the forum state to determine whether the law of the forum state or the situs state should be followed, and what sanctions are to be used if the appropriate law is violated.

However, this approach has been criticized. Both courts and commentators have concluded that it is preferable to use an exclusionary rule analysis rather than the traditional conflicts of law approach to determine the admissibility of evidence in the forum state which is obtained in another jurisdiction. Pooley v. State, 705 P.2d 1293, 1303 (Alaska App.1985); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738, 748 (1979); State v. Lucas, 372 N.W.2d 731 (Minn.1985); W. LaFave, Search and Seizure § 1.5(c) at 116-117 (1987) (suggesting the correct inquiry is "whether the [forum] courts should attempt to deter [situs] police...."); W. Theis, Choice of Law and the Administration of the Exclusionary Rule in Criminal Cases, 44 Tenn.L.Rev. 1043, 1064 (1977) (states must determine whether to apply the exclusionary rule for statutory violations of federal law); R. Tullis & L. Ludlow, Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the Exclusionary Rule, 10 U.S.F.L. Rev. 67, 88 (1975) (indicating that exclusionary rule analysis is preferable to choice of law analysis). The exclusionary rule analysis is more appropriate even if the action violated the laws of both jurisdictions. See W. LaFave, Search and Seizure § 1.5(c) at 116-117 (1987). We agree that, in determining whether evidence obtained in violation of the statutes or rules of criminal procedure of another jurisdiction should be suppressed, an exclusionary rule analysis should be followed.

This analysis is consistent with our decision in People v. Robinson, 192 Colo. 48, 556 P.2d 466 (1976). In Robinson, the defendant was arrested in Missouri for Missouri crimes, as well as being a fugitive from Colorado. He was held seven...