People v. Taylor

• Citation: 296 P.3d 317
• Decision Date: 07 June 2012
• Docket Number: No. 09CA2681.,09CA2681.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Donald Eugene TAYLOR, Defendant–Appellant.
• Court: Court of Appeals of Colorado

296 P.3d 317

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Donald Eugene TAYLOR, Defendant–Appellant.

No. 09CA2681.

Colorado Court of Appeals,

Div. V.

June 7, 2012.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge GRAHAM.

¶ 1 Defendant, Donald Eugene Taylor, appeals the judgment of conviction entered on a jury verdict finding him guilty of conspiracy to distribute a scheduled II controlled substance. In part, defendant appeals an order refusing to suppress evidence discovered during a warrantless search of the call history contained in his cellular telephone on his person at the time of his arrest. We conclude the search of defendant's cell phone was a lawful search incident to arrest, and, therefore, discern no error in the trial court's refusal to suppress that evidence. We reject defendant's remaining contentions and affirm the judgment of conviction.

I. Background

¶ 2 The material facts are not in dispute. On November 20, 2008, undercover officers C.S. and J.W. of the Aurora Police Department were conducting sting operations on the East Colfax corridor. Detective C.S. and Investigator J.W. were patrolling in an undercover police car when they observed defendant making gestures at them consistent with initiating a drug transaction.

¶ 3 The officers approached defendant and Investigator J.W. asked if he “could get a hookup.” Defendant asked, “[H]ook you up with what?” to which Investigator J.W. replied, “[F]orty hard,” street slang for $40 worth of crack cocaine. Defendant responded that he did not sell drugs, but he indicated that he could call someone to sell them the drugs. Defendant then instructed the officers to park across the street.

¶ 4 The officers observed defendant make a phone call on his cellular telephone, and soon thereafter a female approached and entered the car. Investigator J.W. purchased $40 of crack cocaine from the woman. After the controlled purchase, both defendant and the woman were arrested.

¶ 5 After defendant was arrested, he was searched and his cell phone was seized. One of the arresting officers, Sergeant R., opened the call log history of defendant's cell phone, noting a call was recently placed to the woman's phone.

¶ 6 Defendant was charged with distribution of a controlled substance and conspiracy to distribute a controlled substance. Following a jury trial, defendant was convicted of conspiracy to distribute and the jury deadlocked on the distribution count. The court dismissed the distribution count, and sentenced defendant to eight years in community corrections.

II. Motion to Suppress

¶ 7 Defendant contends he was subject to an unlawful search when the police reviewed his cellular telephone's call log without obtaining a warrant. ¹ We disagree and conclude the search of the cell phone's call history was a lawful search incident to arrest, and, therefore, we affirm the denial of the suppression motion.²

¶ 8 The issue before an appellate court in a suppression case is one of mixed law and fact. People v. Alameno, 193 P.3d 830, 834 (Colo.2008). We must defer to the trial court's findings of fact if those findings are supported by competent evidence in the record, but we review the trial court's legal conclusions de novo. People v. Gothard, 185 P.3d 180, 183 (Colo.2008). At a suppression hearing, a defendant has the burden of demonstrating that he is entitled to protection under the Fourth Amendment. ³People v. Galvadon, 103 P.3d 923, 927–28 (Colo.2005). “Evidence that the police did not have a warrant authorizing their search and seizure satisfies that burden.” People v. Syrie, 101 P.3d 219, 222 (Colo.2004).

¶ 9 At the suppression hearing, the trial court ruled the seizure of defendant's cell phone was lawful. The court then ruled the search of the call log was lawful, first, because it was a search incident to arrest and second, because the call log was in plain view. Based upon an objection by defense counsel, the trial court further ruled that the search of the call history was also proper based upon exigent circumstances.

¶ 10 For present purposes we assume, as apparently did the trial court, two propositions: First, defendant had a reasonable expectation of privacy in his cellular telephone's call history⁴ and second, the officer's review of the call history constituted a warrantless search within the meaning of the Fourth Amendment.

¶ 11 Under the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution, warrantless searches are per se unreasonable unless they fall under a specifically established and well-delineated exception to the warrant requirement. City of Ontario v. Quon, ––– U.S. ––––, ––––, 130 S.Ct. 2619, 2630, 177 L.Ed.2d 216 (2010) ( “Although as a general matter, warrantless searches ‘are per se unreasonable under the Fourth Amendment,’ there are ‘a few specifically established and well-delineated exceptions' to that general rule.”) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); People v. Revoal, 2012 CO 8, ¶ 10, 269 P.3d 1238. “The burden of proof ... always remains with the prosecution to establish that a warrantless search falls within one of the narrowly defined exceptions to the warrant requirement.” Syrie, 101 P.3d at 222;see People v. Winpigler, 8 P.3d 439, 443 (Colo.1999).

¶ 12 One specifically established exception to the Fourth Amendment's warrant requirement is “a search incident to lawful arrest.” United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Syrie, 101 P.3d at 222. This exception “allows law enforcement officers, when making a lawful arrest, to search an arrestee's person and the area within the arrestee's immediate control.” Gothard, 185 P.3d at 184. When searching the arrestee's person, the “search require[s] no independent justification, such as a reasonable suspicion or belief that the defendant might be armed or in possession of contraband.” People v. Tottenhoff, 691 P.2d 340, 345 (Colo.1984); People v. Bischofberger, 724 P.2d 660, 664 (Colo.1986). “These searches incident to a lawful arrest must be contemporaneous with or immediately following the arrest and confined to an area into which the defendant might reach or grab for weapons or evidence.” Gothard, 185 P.3d at 184.

¶ 13 Neither the United States Supreme Court nor the Colorado Supreme Court has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be. We conclude, under the circumstances present in this case, that the search of defendant's cell phone's call history was a lawful search incident to arrest.

¶ 14 In Robinson, 414 U.S. at 235, 94 S.Ct. 467, the Supreme Court explained the basis for searches incident to arrest:

A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm or to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.

¶ 15 Several years after Robinson was decided, the Supreme Court limited the area available for search incident to arrest to the arrestee's person and areas “within the immediate control” of an arrestee. United States v. Chadwick, 433 U.S. 1, 14–15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). What constitutes “within the immediate control” of an arrestee has been expanded and limited by the Court in the years since its inception. Compare New York v. Belton, 453 U.S. 454, 460–61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (footnote omitted)), with Arizona v. Gant, 556 U.S. 332, 343, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (rejecting a broad reading of Belton and concluding police are authorized “to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’ ”) (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)). However, the Supreme Court has not limited its holding of a “full search” upon an arrestee's person. See United States v. Edwards, 415 U.S. 800, 804–05, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (“With or without probable cause, the authorities were entitled at that point not only to search [the defendant's] clothing but also to take it from him and keep it in official custody.... The police were also entitled to take from [the defendant] any evidence of the crime in his immediate possession, including his clothing.”);...