People v. Thiret

• Decision Date: 16 July 1984
• Docket Number: No. 84SA107,84SA107
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Paul THIRET, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 193

685 P.2d 193

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Paul THIRET, Defendant-Appellee.

No. 84SA107.

Supreme Court of Colorado,

En Banc.

July 16, 1984.

Robert R. Gallagher, Jr., Dist. Atty., John C. Jordan, Deputy Dist. Atty., Littleton, for plaintiff-appellant.

David F. Vela, State Public Defender, Craig L. Truman, Thomas M. Van Cleave, III, Deputy State Public Defenders, Denver, for defendant-appellee.

QUINN, Justice.

The People filed this interlocutory appeal, pursuant to C.A.R. 4.1, to challenge a ruling of the district court suppressing various items of evidence including the following: a photograph and two rolls of film seized by law enforcement officers during an alleged consent search of the defendant's home; the defendant's automobile impounded by the police while it was parked outside the defendant's home and any evidence obtained from a subsequent search of the vehicle; and statements made by the defendant to law enforcement officers in his home and later at the district attorney's office following a polygraph examination. We affirm in part, reverse in part, and remand for further proceedings.

I.

On September 12, 1983, an information was filed in the Arapahoe County District Court charging the defendant, Robert Paul Thiret, with attempt to commit first degree murder, ¹ two counts of second degree kidnapping, ² child abuse, ³ sexual assault on a child, ⁴ and crime of violence. ⁵ The defendant filed several motions to suppress which were heard by the court over several days and decided on April 23, 1984.

A record of the suppression hearing reveals the following pertinent facts. At approximately 12:45 p.m. on August 22, 1983, a three-year-old girl was abducted outside her home in Sheridan, Colorado. Sergeant Louis Florez of the Sheridan Police Department responded immediately to the scene and interviewed witnesses. Marvin Edler, a painter who had been sitting outside his worksite on his lunch break, said that he saw a car parked across the street and observed the driver talking to two children sitting on the curb. A small blonde-haired child then entered the car which immediately drove off. According to Sergeant Florez, Edler described the car as "a tannish brown or possible orange Datsun with ... black block letters Datsun on the bottom half of the car." Paul Weaver, a neighbor, observed an orange Datsun with a black vinyl top, black letters on the bottom of the car, and a license plate consisting of the letters "ADC" or "ADV" with three numbers, one of which might have been a "2." Sergeant Florez broadcast these descriptions over his radio.

The following morning, August 23, John Huyler, an F.B.I. agent, received a telephone call from Wuanita Zappas regarding the abduction of the child. Zappas informed Huyler that a car matching the description of the abduction vehicle had been seen in front of her daughter and son-in-law's home in the 6400 block of Spotswood in Denver during the first week in July, and that the driver had been talking to her granddaughter who was playing in the yard. Stanley Ellis, her son-in-law, noted the license plate number and turned it over to the Littleton Police Department. Agent Huyler followed up on Zappas' phone call by verifying the information with Ellis and then checking the records office at the Littleton Police Department. He learned that the license plate number reported by Ellis was ADV627. Additional investigation revealed that the car carrying that plate number was registered to the defendant, who resided at 7900 West Layton in Denver.

Agent Huyler and another F.B.I. agent, Brian Jovick, along with two other agents, drove in an unmarked vehicle to the defendant's address in a large townhouse complex and arrived in the neighborhood at about noon on August 23. Upon arrival they observed in the driveway an orange-brown Datsun with a black vinyl top and the license plate number ADV627. Huyler and Jovick went to a phone booth at the complex to call the Sheridan Police Department. Chief Joseph Stephenson of the Sheridan Police Department and two Sheridan detectives, Richard Harris and Michael Anthony, arrived in an unmarked car at the entrance to the complex shortly thereafter. All were dressed in plain clothes. Agents Huyler and Jovick and the three Sheridan officers then drove to the defendant's house and knocked on his door.

When the defendant came to the door the F.B.I. agents and the Sheridan officers identified themselves. Agent Jovick asked the defendant if he owned the car parked in the driveway, and the defendant replied that he did. Jovick told him that a young girl had been abducted the previous day in a similar car, that they would like to talk to him about a kidnapping, and asked if they could come in. The defendant said "come on in" and opened the door. Chief Stephenson then asked the defendant if he minded if they "looked around the house," to which the defendant replied, "No, go ahead," whereupon the two F.B.I. agents and the three Sheridan police officers entered the home.

Once inside, Chief Stephenson, Detective Anthony and Agent Huyler proceeded to search the house, looking for the child and a red shirt that she had been wearing at the time of the abduction. They were joined shortly thereafter by Detective Michael Glidden of the Sheridan Police Department. It took the four officers approximately forty-five minutes to search the entire three-bedroom house from the top floor to the basement. Chief Stephenson, in describing the search, testified that they "looked through every area of the house," "removed or lifted up [every] item that a child this size could have been under," and looked under "suitcases, trunks, boxes, cardboard boxes, or anything of that nature." The only items seized were a photograph of a house ⁶ and two rolls of film. The photograph was taken from the top of a dresser and the two rolls of film from the top of a stereo speaker.

While the search was being conducted, Agent Jovick interviewed the defendant in the living room in the presence of Sheridan Detective Harris. Jovick asked the defendant some general questions about himself, his girlfriend, the existence of any past or present criminal charges, where he worked, and what he had done the day before. In response to the defendant's question about the nature of the inquiry, Jovick told him that a three-year-old girl had been abducted the previous day and that the defendant's car matched the description of the abduction vehicle. Jovick then said, "[W]e are interested in finding the girl since she has not been found." The defendant stated that on the previous day at the time of the abduction he had been taking a nap, but that his car had been in the driveway with the keys in it. Finally, Jovick asked the defendant if he would be willing to take a polygraph test to clear himself of suspicion. After questioning Jovick about the nature of the test, the defendant stated that he would take it. The entire interview at the defendant's home lasted between one-half hour and an hour. At no time was the defendant advised of his Miranda rights. ⁷ At Chief Stephenson's request, Detective Anthony then brought the defendant to the Arapahoe County District Attorney's office for the polygraph examination.

At the district attorney's office the defendant was advised of his Miranda rights and signed a written waiver. He also consented in writing to searches of his house and car. Upon completion of the polygraph examination and further questioning, the defendant was transported home with the understanding that he would return the following day for further testing.

Earlier that day, while the defendant was being interviewed at his home by Agent Jovick, Paul Weaver had been brought to the scene by Sheridan police officers. He identified the defendant's car as the one involved in the abduction. Five minutes after Detective Anthony drove away with the defendant to the district attorney's office for the polygraph examination, Sheridan police officers arranged for the towing of the defendant's Datsun to a storage bay at Bob's Towing at 4300 South Federal Boulevard, one block from the Sheridan Police Department building. Later that afternoon, pursuant to the written consent executed by the defendant, the Datsun was searched by crime lab personnel from the Arapahoe County Sheriff's Office. The record does not disclose what evidence, if any, was found in the search.

On the next day, August 24, the defendant was picked up by a Sheridan police officer and was transported to the district attorney's office for a polygraph examination. At 12:36 p.m. the defendant was advised of his Miranda rights and executed a written waiver of those rights. Following the polygraph examination the defendant was again advised of his rights at 4:04 p.m. and executed another written waiver. Charles Grant, the polygraph examiner, questioned the defendant for an hour, and the defendant indicated that he wished to go home.

At about 5:00 p.m., while Grant was arranging for the defendant's transportation home, he placed the defendant in the office of Robert Sexton, an investigator with the district attorney's office. Without readvising the defendant of his Miranda rights, Sexton began discussing the abduction with him. Shortly after the conversation began, Sexton, with the defendant's permission, closed his office door. A few minutes later the officer assigned to drive the defendant home came in and told him to let him know when he was ready to leave. The defendant, according to Sexton, acknowledged the officer's statement either by nodding his head or by saying "okay" or "yes." Sexton and the defendant then resumed their conversation in the office. Sexton testified that the defendant "[t]alked about cleaning his car the day before, what he had done the day of the kidnapping or when [the child] was missing, what he may have been doing in that area [and] who he was with that day." ...