People v. Tafoya, 97CA0564.

Citation985 P.2d 26
Decision Date04 February 1999
Docket NumberNo. 97CA0564.,97CA0564.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David B. TAFOYA, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Duncan DeVille, Special Assistant Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, David B. Tafoya, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of cocaine with intent to distribute, possession of cocaine in excess of 28 grams with intent to distribute, and possession of drug paraphernalia. He also appeals his sentencing as a habitual criminal. We affirm in part, vacate in part, and remand the cause for correction of the mittimus.

In 1994, defendant was convicted of possession of marijuana with intent to distribute. He was sentenced to a term in prison and later paroled. Pursuant to § 17-2-201(5)(f)(I)(D), C.R.S.1998, he signed an agreement containing several conditions to his parole. Among other things, defendant agreed "to allow the Parole Officer to search his person, or his residence, or any premises under his control, or any vehicle under his control."

While defendant was on parole, a police officer received information from a confidential informant, who had been reliable in the past, that defendant was to deliver a large amount of cocaine to another man named "Memo." When defendant's parole officer learned of the information, he and a police detective went to defendant's home and knocked on the front door.

A man who answered the door identified himself as "Memo." He informed them that defendant was out of the county. If this were true, defendant would have been in violation of one of the conditions of his parole.

The parole officer asked for and received permission from the man for them to search the house for defendant. They did not find defendant, but in a bathroom they saw an open, duct-taped cereal box containing a white substance. They took the box downstairs, where a dog trained to detect narcotics indicated the presence of a controlled substance.

Shortly thereafter, the police located defendant and brought him to the house. The parole officer stated that he and the police would be conducting a full search of the house. Defendant responded that he was "clean." During the search of the same bathroom where the box was found, the parole officer found drug paraphernalia and a sack containing 994.7 grams of cocaine.

Following defendant's conviction by a jury, the court conducted a bench trial on three habitual criminal counts. it found defendant guilty on all counts and thus sentenced him as a habitual criminal.

I.

Defendant contends the search of his house violated his Fourth Amendment protection against unreasonable searches because the parole officer did not have "reasonable grounds" for the search. We conclude the search was legal.

A.

Initially, we note that defendant at oral argument abandoned the argument that a warrant was required for a search of his residence. We agree that, because of defendant's status as a parolee who had consented to searches as a condition of parole, no warrant was required. See § 17-2-201(5)(f)(I)(D); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)(state statute may validly remove the requirement for a warrant before searching a probationer's home); United States v. Cardona, 903 F.2d 60 (1st Cir.1990)(applying Griffin to parolees); Latta v. Fitzharris, 521 F.2d 246 (9th Cir.1975); United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir.1971); Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031 (1997); see also People v. Anderson, 189 Colo. 34, 536 P.2d 302 (1975); see generally P. Hassman, Annotation, Validity, under Fourth Amendment, of Warrantless Search of Parolee or his Property by Parole Officer, 32 A.L.R. Fed. 155 (1977).

B.

Defendant asserts that, even though his parole agreement validly permitted warrantless searches, the search of his home was illegal because the parole officer did not have "reasonable grounds" for the search. We are not persuaded.

In People v. Anderson, supra,

the supreme court recognized that a parolee is not deprived of all the protections afforded by the Fourth Amendment against unreasonable searches. However, because of the need for supervision, as well as the greater threat of other criminal activity, a parolee is subject to restrictions not applicable to other citizens. Hence, what may constitute an unreasonable search for others may be reasonable for a parolee.

The court in Anderson concluded that a parole officer may conduct a warrantless search, but only on "reasonable grounds." It did not define the standard.

The General Assembly later enacted § 17-2-201(5)(f)(I)(D). The statute requires, as a condition of parole, that a parolee must agree to allow a parole officer to search the parolee's person, residence, or vehicle.

Still later, in Griffin v. Wisconsin, supra,

the United States Supreme Court upheld the constitutionality of a similar statute. However, a state regulation in that case expressly required "reasonable grounds" for a parole officer's search. The Supreme Court concluded that "reasonable grounds" was not the same degree of certainty as "probable cause."

The parole officer in Griffin had searched the defendant's apartment in response to a tip from a police officer that there were or "might be" guns in the apartment. The Supreme Court determined that the search was reasonable, even though the police officer's information was not based on firsthand knowledge.

Colorado's statute, § 17-2-201(5)(f)(I)(D), does not similarly require reasonable grounds, or even a reasonable suspicion, to justify a parole search. It simply requires that a parolee consent to search as a condition of parole.

Our appellate courts have not yet addressed whether, despite the absence of an express requirement in § 17-2-201(5)(f)(I)(D), a parole officer must have some basis for believing a parolee has committed a parole violation or crime in order to conduct a parole search. The majority of other courts that have considered consent provisions similar to § 17-2-201(5)(f)(I)(D) have reached one of two conclusions.

For some courts, parole searches are reasonable, even if the parole officer has no particular belief concerning a parole violation or criminal activity, so long as the searches are not made too often, for improper purposes, at unreasonable hours, or in an unreasonable manner. See Owens v. Kelley, 681 F.2d 1362 (11th Cir.1982); United States ex rel. Randazzo v. Follette, 282 F.Supp. 10 (S.D.N.Y.1968), aff'd,418 F.2d 1319 (2d Cir.); People v. Reyes, 19 Cal.4th 743, 80 Cal. Rptr.2d 734, 968 P.2d 445 (1998); State v. Zeta Chi Fraternity, 142 N.H. 16, 696 A.2d 530 (1997).

For other courts, parole searches must be based on a reasonable suspicion, supported by specific and articulable facts, that the parolee has committed a parole violation or crime. See United States v. Davis, 932 F.2d 752 (9th Cir.1991)

; United States v. Giannetta, 909 F.2d 571 (1st Cir.1990); State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984); People v. Woods, 211 Mich.App. 314, 535 N.W.2d 259 (1995); Commonwealth v. Williams, supra; State v. Velasquez, 672 P.2d 1254 (Utah 1983); State v. Massey, 81 Wash.App. 198, 913 P.2d 424 (1996).

A few courts with statutes containing similar consent provisions have specified that a parole officer must have "reasonable grounds" for a parole search. However, these courts have in fact required no more than a reasonable suspicion, supported by specific and articulable facts, to believe that the parolee has committed a parole violation or crime. See People v. Eiland, 217 Ill. App.3d 250, 160 Ill.Dec. 231, 576 N.E.2d 1185 (1991)

; Commonwealth v. LaFrance, 402 Mass. 789, 525 N.E.2d 379 (1988); Allan v. State, 103 Nev. 512, 746 P.2d 138 (1987); Pena v. State, 792 P.2d 1352 (Wyo.1990); State v. Velasquez, supra; cf. People v. Slusher, 844 P.2d 1222 (Colo.App.1992). Even in those states that by statute or regulation expressly require "reasonable grounds," the justification actually required is no greater than the "reasonable suspicion" standard. See Griffin v. Wisconsin, supra.

This is not to say that a state cannot impose a higher standard to justify parole searches. See State v. Cullison, 173 N.W.2d 533 (Iowa 1970)

(parolee accorded the same Fourth Amendment rights, privileges, and immunities as any other person). But we find nothing in the plain language of § 17-2-201(5)(f)(I)(D), in Colorado precedent, in the federal or state constitutions, or in policy that requires more than a reasonable suspicion to justify an otherwise reasonable parole search.

Contrary to defendant's argument, we do not read People v. Anderson, supra,

as requiring a different result. As earlier noted, the court in Anderson did not define "reasonable grounds." While in Colorado the term is sometimes used in connection with the standard of "probable cause," it is also used in connection with the standard of "reasonable suspicion." Compare People v. Foster, 788 P.2d 825 (Colo.1990)(probable cause in the case of a warrantless arrest requires that an arresting officer have reasonable grounds to believe that the person arrested has committed or is committing a crime) with People v. Davis, 669 P.2d 130 (Colo.1983)(reasonable grounds for order requiring nontestimonial identification requires articulable and specific basis for suspecting criminal activity). Further, as also earlier noted, Anderson was decided before § 17-2-201(5)(f)(I)(D) was enacted.

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4 cases
  • People v. Melillo
    • United States
    • Colorado Supreme Court
    • May 29, 2001
    ...of a crime, and because a sentence enhancer is not a crime, a person cannot be convicted of a sentence enhancer. See People v. Tafoya, 985 P.2d 26, 31 (Colo. App.1999) (vacating defendant's conviction and sentence for possession of twenty-eight grams or more of cocaine because that charge i......
  • People v. Carrasco, 01CA1457.
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    • Colorado Court of Appeals
    • August 28, 2003
    ...of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Tafoya, 985 P.2d 26 (Colo.App.1999). In habitual criminal proceedings, the prosecution bears the burden of proving beyond a reasonable doubt that the accused is t......
  • Tafoya v. People, No. 99SC226.
    • United States
    • Colorado Supreme Court
    • June 19, 2000
    ...together with the written and Oral Arguments of Counsel, and now being sufficiently advised in the premises, Prior report: Colo.App., 985 P.2d 26. BY THE IT IS THIS DAY ORDERED that the Writ of Certiorari heretofore granted be, and is, DENIED as having been improvidently granted. ...
  • People v. McKay
    • United States
    • Colorado Court of Appeals
    • July 6, 2000
    ..."reasonable grounds" has been variously equated with both the "probable cause" and "reasonable suspicion" standards. See People v. Tafoya, 985 P.2d 26 (Colo.App.1999). The General Assembly's intended meaning of a doubtful word or phrase may be ascertained by consideration of the language in......
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    • United States
    • Rutgers Computer & Technology Law Journal Vol. 30 No. 2, June 2004
    • June 22, 2004
    ...at 1263. (214.) People v. Slusher, 844 P.2d 1222, 1225 (Colo. Ct. App. 1992). (215.) Id. (216.) Id. (217.) Id.; see also People v. Tafoya, 985 P.2d 26, 28-29 (Colo. Ct. App. (218.) This section was adapted from Susan Kreston & Robert Morgester, Federal Privacy Statutes and Computer Rela......

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