People v. Russom, 02CA1920.

• Decision Date: 01 July 2004
• Docket Number: No. 02CA1920.,02CA1920.
• Citation: 107 P.3d 986
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry J. RUSSOM, Sr., Defendant-Appellant.
• Court: Colorado Court of Appeals

107 P.3d 986

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry J. RUSSOM, Sr., Defendant-Appellant.

No. 02CA1920.

Colorado Court of Appeals, Div. II.

July 1, 2004.

Certiorari Denied January 24, 2005.

Ken Salazar, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kathy Goudy, Carbondale, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Larry J. Russom, Sr., appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of unlawful distribution of a controlled substance, one count of conspiracy to distribute a controlled substance, one count of possession with intent to distribute a controlled substance, a special offender count for possession of a gun, and three special offender counts for distribution of a controlled substance on school grounds. Defendant also appeals his sentence. We affirm.

During undercover operations, the police and a confidential informant made controlled purchases of various quantities of cocaine from defendant. Based on one officer's affidavit, the police requested and obtained a search warrant for defendant's residence, which allowed for an unannounced (no-knock) entry. After once postponing execution of the warrant because defendant was not in the residence, the police executed the search warrant seven days after it was issued. During the execution of the warrant, police shot defendant as he reached for a gun.

Later, the police obtained and executed two more search warrants for evidence of the shooting, as well as firearms and narcotics. During the searches the police found two rifles, marijuana, cocaine, and cash, which included some of the marked bills from one of the controlled buys. Approximately seven weeks after execution of the first search warrant, defendant was arrested and charged with three counts of unlawful distribution of a controlled substance, two conspiracy counts, one count of unlawful possession with intent to distribute, one count of possession of marijuana, and five special offender counts.

The jury acquitted defendant of one count of distribution of a controlled substance and the corresponding conspiracy count, the possession of marijuana count, and one special offender count, but convicted him of the remaining eight counts. The trial court sentenced defendant to three concurrent eight-year terms in the custody of the Department of Corrections for the distribution and possession with intent to distribute counts and a four-year sentence on the conspiracy count, to be served consecutively to the eight-year sentence. This appeal followed.

I.

Defendant first contends that the trial court abused its discretion by providing the jury with equipment to allow it to replay audiotapes that were admitted into evidence. We disagree.

Jurors may have access during deliberations to nontestimonial recordings that depict the event itself rather than a narration thereof. See People v. Aponte, 867 P.2d 183, 188 (Colo.App.1993)

(videotape and transcription of drug transaction could be given to the jury during deliberations).

Here, during one of the controlled buys, a police informant wore a recording device and recorded the transaction. At trial, the audio recording of that purchase was admitted into evidence. During deliberations, the jury asked the court to provide equipment to allow it to replay the tape. Over defendant's objection, the court granted the request.

The audiotape at issue here does not contain testimonial statements of witnesses. Rather, it is a tangible exhibit with verbal content and is nontestimonial in character because it depicts the actual commission of the crime itself. Thus, we perceive no abuse of discretion in the trial court's decision to provide equipment with which to replay the recording. See People v. Aponte, supra; see also United States v. Koska, 443 F.2d 1167 (2d Cir.1971)

(jury in bribery case could properly take into its deliberations tape recording and accompanying transcript of conversation in which the bribe was offered).

In light of this determination, we need not address the application of People v. McKinney, 80 P.3d 823 (Colo.App.2003)(cert. granted Dec. 1, 2003), or the application of C.R.C.P. 47(m) here.

II.

Defendant next contends that the trial court erred in denying his motion to suppress evidence obtained during the search of his residence. Specifically, he asserts that (1) the affidavit supporting the warrant demonstrated a lack of probable cause; (2) there were insufficient exigent circumstances to justify the warrant's no-knock authorization; and (3) because the search warrant was not executed until seven days after it was issued, the warrant was stale. We address and reject each contention in turn.

A.

To be constitutionally proper, a search warrant must be based upon probable cause supported by oath or affirmation particularly describing the place to be searched and the objects to be seized. People v. Meraz, 961 P.2d 481 (Colo.1998).

Probable cause for a search warrant exists if the affidavit submitted in support of the warrant alleges sufficient facts to cause a person of reasonable caution to believe that contraband or other evidence of criminal activity is located at the place to be searched. People v. Miller, 75 P.3d 1108 (Colo.2003).

Whether facts in an affidavit establish probable cause depends on a practical, nontechnical totality of the circumstances approach. People v. Abeyta, 795 P.2d 1324, 1327 (Colo.1990). In assessing whether an affidavit establishes probable cause, a court can consider only that information contained within the "four corners" of the affidavit. People v. Meraz, supra.

The duty of a court reviewing a magistrate's determination of probable cause is to ensure that the magistrate had a substantial basis for concluding that probable cause existed, and any doubts must be resolved in favor of the magistrate's determination. People v. Leftwich, 869 P.2d 1260 (Colo.1994).

In reviewing suppression issues, we give deference to the trial court's findings of historical fact and will not overturn them if supported by competent evidence in the record. As a reviewing court, our role is to determine whether the trial court's legal conclusions are supported by sufficient evidence and if it applied the correct legal standards. We review the legal issues de novo because the legal effect of the facts is a question of law. People v. Allison, 86 P.3d 421 (Colo.2004).

Here, the affidavit in support of the search warrant, signed under oath by one of the officers involved in the controlled purchases, detailed each purchase, named defendant as the person who provided the cocaine for purchase, and listed defendant's residence as the place where the last purchase occurred. In addition, the affidavit stated that after completing the last purchase, the confidential informant asked defendant whether he could come back later to purchase more cocaine and defendant answered affirmatively, telling him that he could park in front of the house the next time. The affidavit also listed drugs, money, and any drugmaking equipment or paraphernalia as the items that were to be seized during the search.

Because the affidavit describes an ongoing drug trafficking operation at defendant's home, we conclude that the affidavit established probable cause for the issuance of the search warrant.

Defendant's reliance on People v. Miller, supra,

to support a contrary result is misplaced. In Miller, the supreme court determined that a search warrant was not supported by probable cause because the accompanying affidavit contained information that was nearly a month old and did not establish that the defendant was engaging in a course of conduct at the location to be searched.

Here, in contrast, the affidavit was dated the same day as the last controlled purchase and alleged a continuing activity of selling drugs. In addition, the information in the affidavit pertaining to defendant's residence was corroborated by police surveillance. Accordingly, Miller is distinguishable.

B.

We reject defendant's contention that there were insufficient exigent circumstances to justify the warrant's no-knock authorization.

In general, the Fourth Amendment requires law enforcement officers to knock and announce their presence when executing a warrant. People v. Gifford, 782 P.2d 795 (Colo.1989). However, in cases involving exigent circumstances, as when there is a threat of physical violence or evidence would be at risk of destruction in the event of an announced entry, a no-knock entry is permissible. The showing required for no-knock authorization is not high. Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

To justify a no-knock entry, the police must have an objectively reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile or that it would inhibit the effective investigation of a crime by, for example, allowing the destruction of evidence. Richards v. Wisconsin, supra.

In reviewing a challenge to the no-knock execution of a search warrant, we review the execution from the perspective of reasonable officers who are legitimately concerned not only with doing their job, but also with maintaining their own safety. United States v. Colonna, 360 F.3d 1169 (10th Cir.2004).

Here, the affidavit alleged that defendant was known to carry a gun in a holster and to have a shotgun by his front door because he was paranoid that someone was going to kill him. Based on this information, the police requested that the search warrant be an immediate entry warrant for the safety of the officers.

Because the warrant alleged specific facts indicating that the officers might reasonably be in danger if they were required to knock and announce their entry, we conclude that there were sufficient exigent circumstances to justify...