People v. Rivera

• Decision Date: 14 May 1990
• Docket Number: No. 88SC497,88SC497
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Robert I. RIVERA, Respondent.
• Court: Colorado Supreme Court

Page 786

792 P.2d 786

The PEOPLE of the State of Colorado, Petitioner, v. Robert I. RIVERA, Respondent.

No. 88SC497.

Supreme Court of Colorado,

En Banc.

May 14, 1990.

Rehearing Denied June 18, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Paul H. Chan, Asst. Atty. Gen., Denver, for petitioner.

James F. Dumas, Jr., Aurora, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In People v. Rivera, 765 P.2d 624 (Colo.App.1988), the Court of Appeals held that the trial court erroneously denied the motion of defendant Robert I. Rivera to suppress evidence obtained from an electronic monitoring of a conversation between Rivera and Richard White. The Court of Appeals held that the decision of White to participate in the electronic monitoring was not voluntary and therefore was ineffective pursuant to section 16-15-102(10), 8A C.R.S. (1986). In so doing, the Court of Appeals reversed a jury verdict finding Rivera guilty of possession of a weapon by a previous offender, in violation of section 18-12-108, 8B C.R.S. (1986). We granted certiorari to consider the question of whether White voluntarily consented to participate in the monitored communication with Rivera within the requirements of section 18-9-304, 8B C.R.S. (1986). ¹ We reverse and remand with directions. ²

I

Rivera was convicted for possessing a .22-caliber revolver seized by police officers during a search of Rivera's residence. A warrant for the search had been obtained on the basis of an affidavit reciting that on November 18, 1985, in an electronically recorded conversation, Rivera and White discussed a planned armed robbery. Prior to trial Rivera moved to suppress any evidence concerning the November 18 conversation on the ground that White's participation constituted eavesdropping pursuant to section 18-9-304, 8B C.R.S. (1986). The People opposed the motion on the ground that White's participation did not constitute eavesdropping because he had voluntarily consented to the electronic monitoring of the conversation. ³

At the suppression hearing, three police detectives testified with respect to the conversation between White and Rivera. In addition, White filed an affidavit in which he denied that he participated in a monitored conversation. ⁴ The trial court found that the officers had monitored the conversation by means of an electronic recording device affixed to White prior to the commencement of the discussion. Concluding that White voluntarily consented to participate in the electronically recorded conversation, the trial court denied Rivera's motion to suppress.

In reaching its decision, the trial court entered several pertinent findings of fact. Those findings essentially establish that on November 18, 1985, Denver Police Department detective Mark Vasquez arrested White for the offense of possession of a weapon by a previous offender. While confined in the Denver City Jail pursuant to that arrest, White initiated a conversation with Vasquez, asked what he might do to "get out of" his difficulties, and suggested that he had information concerning two amphetamine dealers. Vasquez replied that he was interested in information concerning Rivera's participation in aggravated robberies, that he could make no promises, but that if White cooperated he would talk to the district attorney. White indicated that he needed to think about the matter, and the conversation ended.

Vasquez next spoke with White on the morning of November 18. Prior to that time, Vasquez had learned that the district attorney had refused to file the possession of weapon charge against White. ⁵

Vasquez testified that he took White into an interview room and asked if White had thought about the matter; that White said "yes," indicated that he was willing to cooperate, and that he knew Rivera was in the process of planning a robbery. On cross-examination, Vasquez testified that he told White on November 18 that he would guarantee that the weapons charges would not be filed but that he did not reveal the district attorney's decision. He also testified that White understood that Vasquez would not file the possession of weapon charge "in return for cooperation in the Robert Rivera investigation."

The trial court found that White was promised leniency; "that the leniency promised was initially that the officer would recommend to the prosecution that they be lenient with him if he cooperated and Detective Vasquez after learning that the district attorney's office had failed to file the possession of a weapon by a previous offender charge against the defendant for a lack of evidence then advised Ricky White, the informant, that he would guarantee that the charges would not be filed." The trial court later categorized Vasquez' discussion with White as "a deceitful but knowledgeable statement ... that the pending case against [White] would be dismissed." Finally, the court stated that "from the totality of the circumstances by not only the preponderance of the evidence but by clear and convincing evidence ... there was no coercion, threats of penalty to the informant to obtain his consent and that there was a promise, even though a deceitful one, but a promise...." The court then concluded that White had voluntarily consented to participate in the monitored conversation with Rivera.

On appeal, the Court of Appeals acknowledged that it was bound by the trial court's findings of fact but concluded that the evidence was insufficient as a matter of law to sustain the trial court's ultimate finding that White's consent was voluntary. The Court of Appeals held that there can be no lawful consent secured by fraudulent inducement, and that therefore the prosecution had failed to sustain its burden of proof by a preponderance of the evidence that White's decision was voluntary.

II

The General Assembly has adopted a comprehensive wiretapping and eavesdropping statute regulating the manner in which information may be obtained by means of electronic monitoring devices. §§ 16-15-101 to -104, 8A C.R.S. (1986). The act authorizes an aggrieved person to request suppression of the content of any intercepted oral communication or evidence derived therefrom if the communication was unlawfully intercepted. § 16-15-102(10), 8A C.R.S. (1986). Rivera's suppression motion was premised on this statutory provision. Whether Rivera's conversation with White was unlawfully intercepted depends on whether White's conduct constituted eavesdropping as defined in section 18-9-304, 8B C.R.S. (1986). ⁶

In People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976), we recognized that under section 18-9-304(1)(a), no unlawful interception occurs if one party to an electronically monitored conversation voluntarily consents to such monitoring. Id., 189 Colo. at 201, 539 P.2d at 1258. ⁷ See also People v. Palmer, 652 P.2d 1092 (Colo.App.1982). Section 18-9-304(1)(a) parallels 18 U.S.C. § 2511(2)(c) of the federal eavesdropping statute, which states as follows:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

18 U.S.C. § 2511(2)(c). The federal statutory scheme has been upheld in the face of constitutional challenges based on the fourth and fifth amendments to the United States Constitution. E.g., United States v. Hodge, 539 F.2d 898 (6th Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977); United States v. O'Neill, 497 F.2d 1020 (6th Cir.1974); United States v. Cafero, 473 F.2d 489 (3d Cir.1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974); United States v. Tortorello, 480 F.2d 764 (2d Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86. But see Kirk v. State of Louisiana, 526 So.2d 223 (La.1988) (Louisiana statute prohibiting private citizens from obtaining evidence by electronic recording of conversations without the consent of all participants but allowing police officials to obtain evidence in such manner upon the consent of one participant violates equal protection guarantees of the United States and Louisiana constitutions). In People v. Velasquez, 641 P.2d 943 (Colo.1982), cert. denied, 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 this court held that section 16-15-102(10) which permits electronic surveillance of conversations in the absence of a warrant upon the agreement of one of the parties thereto, did not violate the prohibition against unreasonable searches and seizures contained in the Colorado Constitution, article 2, section 7. Rivera does not challenge the validity of our eavesdropping statute on federal or state constitutional grounds.

Although this court has not previously had occasion to examine directly the consent requirement of section 18-9-304(1)(a), 8B C.R.S. (1986), numerous federal decisions have established a framework of jurisprudence under 18 U.S.C. § 2511(2)(c) upon which we may draw for guidance. Valid consent under the federal statute requires that a party's consent be voluntary and uncoerced. United States v. Kolodziej, 706 F.2d 590, 593 (5th Cir.1983); United States v. Juarez, 573 F.2d 267, 278 (5th Cir.1978), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262; United States v. Osser, 483 F.2d 727, 730 (3d Cir.1973), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321. The government has the burden of proving voluntariness, and may in general satisfy that burden by introducing sufficient evidence to establish that the informer proceeded with the transaction after understanding what the nature of the transaction would be. United States v. Jones, 839 F.2d 1041, 1050 (5th Cir.1988), cert. denied, 486 U.S. 1024, 108 S.Ct. 1999, 100 L.Ed.2d 230; United States v....