People v. Prescott

• Decision Date: 07 August 2008
• Docket Number: No. 05CA1380.,05CA1380.
• Citation: 205 P.3d 416
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony G. PRESCOTT, Defendant-Appellant.
• Court: Colorado Court of Appeals

205 P.3d 416

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony G. PRESCOTT, Defendant-Appellant.

No. 05CA1380.

Colorado Court of Appeals, Div. VI.

August 7, 2008.

Rehearing Denied September 18, 2008.

John W. Suthers, Attorney General, John Lee, Assistant Attorney General, Sean Moynihan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Sarah Burtis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Defendant, Anthony G. Prescott, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance, § 18-18-204, § 18-18-405(1)(a), (2)(a)(I), C.R.S.2007, and possession of drug paraphernalia, § 18-18-428, C.R.S.2007. We conclude that evidence should have been suppressed because Prescott did not impliedly consent to a warrantless search, and therefore we reverse and remand for a new trial.

I. Facts

Before trial, Prescott moved to suppress evidence seized in his hotel room and statements he made at the hotel before he had been given a Miranda warning. After an evidentiary hearing at which only police officers testified, the trial court denied the motion on the basis that Prescott had impliedly consented to their entry into the room.

According to uncontroverted testimony at the suppression hearing, two police officers responded to the hotel based on an anonymous telephone call about a disturbance in Prescott's room. When they knocked on the hotel room door, a woman answered. Prescott was and remained inside, either seated or standing.

One of the officers, Sergeant Wunderlich, immediately took the woman down the hallway, leaving Prescott alone in the room. Without requesting permission to enter, the second officer, Deputy Wilson, stepped "a couple of feet into the door" of the room and asked Prescott to identify himself, which he did. Prescott told Deputy Wilson that the woman had stolen money from him, that she had slapped him, and that he had slapped her back. Then Prescott asked Deputy Wilson to help him get his money back.

Meanwhile, the woman told Sergeant Wunderlich that Prescott had accused her of stealing money from him, that he had slapped her, and that there were drugs on the desk in the room. He noticed that she appeared to have a red mark on her face. Leaving the woman in the hallway, Sergeant Wunderlich returned to the room and walked in. He, too, did not request permission to enter. Once inside, he looked on the desk and told Deputy Wilson that he saw "three small little white pebbles that [he] recognized as cocaine," a "little scale used to weigh ... narcotics," and "Zigzag rolling papers made for rolling cigarettes or rolling marijuana cigarettes."

When one of the officers asked about the items, Prescott responded that he had a drug problem and that the cigarettes on the desk had been dipped in cocaine. He was arrested, handcuffed, and escorted outside the hotel. On the way to his patrol car, Deputy Wilson asked another officer who had arrived at the hotel to test the drugs. Prescott stated, "it's cocaine, I know, I bought it." Thereafter, Deputy Wilson gave Prescott a Miranda warning in the patrol car.

II. Motion to Suppress

Prescott contends that because he did not consent to Deputy Wilson's entry into his hotel room, the trial court should have suppressed the cocaine and drug paraphernalia found by the officers, as well as his statements inside and outside the hotel room before he was given a Miranda warning. We agree.

Warrantless searches and seizures are presumptively invalid under the Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution unless justified by an established exception to the warrant requirement. People v. Gothard, 185 P.3d 180, 183 (Colo. 2008); People v. Bostic, 148 P.3d 250, 254 (Colo.App.2006).

A registered guest in a hotel room has a legitimate expectation of privacy in both the room and its contents, and thus is entitled to protection against unreasonable searches and seizures. People v. Lewis, 975 P.2d 160, 169 (Colo.1999); People v. Schafer, 946 P.2d 938, 944 (Colo.1997).

In Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court stated: "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent the exigent circumstances, that threshold may not reasonably be crossed without a warrant." See McCall v. People, 623 P.2d 397, 402 (Colo.1981) ("This rule is no stranger to Colorado jurisprudence.") (citing Payton). "Further, `Payton did not draw the line one or two feet into the home; it drew the line at the home's entrance.'" State v. Clark, 844 S.W.2d 597, 599 (Tenn.1992)(quoting United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir.1991)).

Voluntary consent to a search is an exception to the warrant requirement. People v. Lehmkuhl, 117 P.3d 98, 102 (Colo.App. 2004). The prosecution has the burden of proving that consent was obtained before a search was initiated and that it was freely and voluntarily given. People v. Castro, 159 P.3d 597, 600 (Colo.2007). The prosecution must prove voluntariness by clear and convincing evidence. People v. Magallanes-Aragon, 948 P.2d 528, 530 (Colo.1997). Before reaching the voluntariness question, however, the prosecution must prove that the defendant by his conduct, words, or both, gave permission to search. People v. Herrera, 935 P.2d 956, 959 (Colo.1997).

Appellate review of a ruling on a motion to suppress is a mixed question of law and fact. People v. Bostic, 148 P.3d at 254. We set aside the trial court's factual findings only if they are clearly erroneous or unsupported by the record. Id. The trial court's legal conclusions are reviewed de novo. Id. An ultimate conclusion of constitutional law that is inconsistent with or unsupported by evidentiary findings is subject to correction by a reviewing court. People v. Quezada, 731 P.2d 730, 732-33 (Colo. 1987).

Where, as here, neither authority nor voluntariness is at issue, consent is a factual determination for the trial court. People v. Milton, 826 P.2d 1282, 1286 (Colo. 1992). However, because the facts relevant to consent are undisputed, we review de novo. See, e.g., People v. King, 16 P.3d 807, 812 (Colo.2001).

The Attorney General agrees that Deputy Wilson did not request consent to enter the hotel room and that neither the woman nor Prescott expressly consented to his entry. Further, nothing in the record indicates that either Prescott or the woman expressly consented to Sergeant Wunderlich's entry. Therefore, we address only implied consent.

A. Implied Consent

Our supreme court has stated that consent to a warrantless search may be expressed or "implied from the `totality of the circumstances'." People v. Berow, 688 P.2d 1123, 1127 (Colo.1984) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973))(search of an apartment). However, it has not addressed what circumstances sufficiently imply consent to a warrantless entry into a home or hotel room. Cf. Mathis v. People, 167 Colo. 504, 510, 448 P.2d 633, 636 (1968)(finding implied consent to enter and return a vehicle where police were looking for a specific vehicle in connection with a robbery and were notified by defendant's fiancée that the vehicle she loaned to defendant was missing).

In People v. O'Hearn, 931 P.2d 1168, 1173-74 (Colo.1997), the supreme court concluded that the defendant did not consent to entry where both officers testified that when the defendant opened the door to her home, they "walked right in without obtaining permission to enter." Further, consent to enter a home may not be shown from the defendant's failure to object to the entry. People v. Santisteven, 693 P.2d 1008, 1012 (Colo.App. 1984).

Other jurisdictions have recognized implied consent to the search of a hotel room under the following circumstances: defendant gestured to the officer that he could use the key to unlock the hotel room door, United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996); defendant opened motel room door with his key and allowed officers to enter the room, State v. Knapp, 120 Idaho 343, 815 P.2d 1083, 1089 (App.1991); defendant "voluntarily opened the door when he saw uniformed officers" and "walked away without responding to the officers' questions," Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721, 723 (1980). See also State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170, 183 (2002)("a crime is reported ... by an individual who owns or controls the premises to which the police are summoned, and that individual either states or suggests that it was committed by a third person").

We view these cases as well reasoned, consistent with Mathis v. People, and proper applications of the general principle that "consent is `implied' because it is found to exist merely because of the person's conduct in engaging in a certain activity." 4 Wayne R. LaFave, Search and Seizure; A Treatise on the Fourth Amendment § 8.2(l), at 122 (2004).

Here, in denying the motion to suppress the trial court explained:

The Court finds from the evidence here that [Deputy Wilson] entered by implied consent that was given by Mr. Prescott. Mr. Prescott did not verbally say yes you may come in or sure you may come in as referenced in the Clouse case, but when the officer wanted to speak to him about the event and in fact Mr. Prescott wanted to make a complaint about [the woman] and her taking his money and him wanting her to be arrested and what the officer could do to accomplish that, he did that within his room and the officer was there.

The Court finds looking at the totality of the circumstances that the officer did in fact enter by consent of Mr. Prescott so he was legally on the premises and within...