People v. Zamora

• Decision Date: 27 June 1996
• Docket Number: No. 94CA0388,94CA0388
• Citation: 940 P.2d 939
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark A. ZAMORA, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 939

940 P.2d 939

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark A. ZAMORA, Defendant-Appellant.

No. 94CA0388.

Colorado Court of Appeals Div. V.

June 27, 1996.

Rehearing Denied Aug. 1, 1996.

As Modified on Denial of Rehearing

Dec. 12, 1996.

Certiorari Denied July 21, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Mark Zamora, appeals the judgment of conviction, entered upon a jury verdict, for second degree kidnapping and sexual assault on a child. We affirm.

On May 4, 1993, the thirteen-year-old victim was walking to school when a man drove by, stopped his car in front of her, grabbed her by the jacket, and pulled her into his car. The man took the victim to his apartment, where he sexually assaulted her. He then dropped the victim off at her school, after warning her not to tell anyone about what had happened.

When the victim got home from school, she reported the assault to her mother who immediately called police. In addition to giving a general description of her attacker, the victim remembered the location of the apartment complex where she had been taken, the apartment's layout, its messy appearance, and the presence of an unfilled waterbed frame in the bedroom.

Police investigation soon ruled out all but defendant's apartment. Defendant was not home, so the police waited, and after he returned with his girlfriend, they knocked on the door.

Defendant answered and the officers noted that he did not match the victim's description very well. Defendant exited the apartment, closing the door behind him, and initially refused the officers' request to go inside and talk. Defendant later testified that he had just taken out some marijuana with his girlfriend which he did not want the officers to see, but at the time he simply told the police his apartment was too messy for company.

The officers ostensibly honored defendant's refusal, but then employed a ruse. They assured defendant that they would ignore the messiness of his apartment, but that they just wanted a "quick look" at the layout of the apartment to aid in their investigation of a domestic dispute at an adjacent apartment.

Once defendant felt that his girlfriend had had enough time to hide the marijuana, he agreed to let the officers in. After entering, the officers noted that the apartment's layout matched the victim's description. They also saw the empty waterbed frame in the bedroom through the open bedroom door. After leaving, the officers prepared a photographic lineup from which the victim positively identified defendant. They then obtained a search warrant and arrested defendant.

At trial, defendant admitted to having sex with the victim but claimed that it was consensual. The jury found him guilty of sexual assault on a child and kidnapping.

I.

Defendant first asserts that his consent to the entry of his apartment was invalid because it was obtained through deception, and therefore, that any evidence resulting from the search should have been suppressed. We disagree.

Police may enter a home to conduct a warrantless search when the person in possession voluntarily consents to the search. The suspect need not be informed of his right to refuse the search although such knowledge should be considered in evaluating the voluntariness of the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The prosecution has the burden of proving voluntariness by clear and convincing evidence. People v. Carlson, 677 P.2d 310 (Colo.1984). Voluntariness is a question of fact to be decided by the trial court, and will be upheld on appeal unless clearly erroneous. People v. Drake, 785 P.2d 1257 (Colo.1990).

In determining consent, trial courts must look at the totality of the circumstances surrounding the voluntariness of the consent. People v. Thiret, 685 P.2d 193 (Colo.1984). Factors to consider include: the age, education and intelligence of the person consenting to the search; the duration, location and other circumstances of the search; and the consenting person's state of mind.

Consent may be voluntary even when the person is not aware of or is misinformed as to the search's purpose. People v. Santistevan, 715 P.2d 792 (Colo.1986), cert. denied, 479 U.S. 965, 107 S.Ct. 468, 93 L.Ed.2d 412 (1986).

Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority. Most courts have recognized that ruses are a sometimes necessary element of police work and have held that deception standing alone does not invalidate consent; it is one factor to be considered in assessing the totality of the circumstances. See People v. Santistevan, supra. (misrepresentation by police about the purpose of a search may weigh against a finding of consent but does not invalidate consent); People v. Daugherty, 161 Ill.App.3d 394, 112 Ill.Dec. 762, 514 N.E.2d 228 (1987) (ruses tolerable if they do not exceed the bounds of fundamental fairness such as by coercion or misrepresentation of authority; search held fundamentally unfair where officer gained entry to home by claiming he wanted to investigate recent theft and questioned owner until drugs were discovered); State v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993) (police could obtain consent to search by claiming they were looking for a third party); State v. Watson, 416 So.2d 919 (La.1982) (police may search suitcase for drugs by obtaining owner's consent to search suitcase for identification); People v. Lee, 160 Misc.2d 711, 610 N.Y.S.2d 1013 (Orange County Court 1994) (ruse held unfair where suspect volunteered her possession of drugs in response to officer's bluff that she would have to ride to station house in patrol car with a drug-sniffing rottweiler; threat to suspect's safety vitiated consent); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980) (police may misrepresent both identity and purpose to obtain consent to enter home) cert. denied sub nom. Morrison v. Pennsylvania, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Dotsey v. State, 630 S.W.2d 343 (Tex.App.1982) (police may use interrogation techniques, such as falsely claiming that a co-conspirator has incriminated suspect, in order to obtain consent to search); 3 W. LaFave, Search and Seizure § 8.2(m) (1996).

See also United States v. White, 706 F.2d 806 (7th Cir.1983) (where defendant consented to search of apartment for drugs, discovery and seizure of marked currency was within scope of search and thus permissible; court focused on whether search exceeded the scope of consent produced through the ruse); State v. Schweich, 414 N.W.2d 227 (Minn.App.1987) (where homeowner consented to police request to search for a tenant's guns, police should not have continued searching for homeowner's drugs after finding guns; search exceeded scope of consent and was impermissible). Cf. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (overbearing conduct or misrepresentation of authority will render consent involuntary). But see State v. McCrorey, 70 Wash.App. 103, 851 P.2d 1234, 1240 (1993) (court held entry impermissible stating that "police acting in their official capacity may not actively misrepresent their purpose to gain entry or exceed the scope of consent given"; ruse entries approved in conjunction with undercover police activity).

Here, the trial court considered the deception by the police as one important factor in assessing the totality of the circumstances. Nevertheless, based upon all of the factors, it determined that defendant's consent was voluntary. That determination is fully supported by the record.

Although the officers may have partially misrepresented their purpose by not disclosing they were investigating a rape rather than a domestic dispute, nevertheless, they were truthful in stating they wished to see the layout of defendant's apartment. In fact, they wanted to compare it with the victim's description of her perpetrator's apartment. The police did not feign an emergency, conceal their identities, or misrepresent their authority. Nor did they exceed the scope of the consent. Defendant permitted the officers to look at the layout of his apartment and that is all the officers did. Once they were in the apartment, they saw how messy it was, a fact already disclosed voluntarily by the defendant, and they also observed the incriminating waterbed frame in plain view. See People v. Torand, 622 P.2d 562 (Colo.1981) (scope of consensual search may be limited by defendant, but police may consider incriminating items found in plain view while conducting limited search). Further, the court found that defendant was aware of his right to refuse consent, and was not threatened or pressured in any way by the police.

Because the trial court found that the officers were not threatening or overbearing, that defendant's consent was a product of his own free will and intelligently made, and that defendant knew he could refuse entry, there is record support for its conclusion that defendant's consent was voluntary.

Contrary to defendant's contention, McCall v. People, 623 P.2d 397 (Colo.1981), does not require a different result.

In McCall, probable cause existed for the defendant's arrest. However, the police on the advice of the deputy district attorney deliberately used deception to circumvent the warrant requirement in order to increase their chances of obtaining a confession. Relying heavily on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which was announced after the trial court's ruling, our ...