People v. Arapu

2012 CO 42, 283 P.3d 680, 2012 WL 1994925

• Court: Supreme Court of Colorado
• Decided: June 4, 2012
• Docket: No. 11SA326
• Status: Published

Opinions

Justice EID

delivered the Opinion of the Court.

T1 The prosecution brings this interlocutory appeal pursuant to section 16-12-102(2), C.R.S. (2011), and C.AR. 4.1(a) seeking to reverse the trial court's ruling suppressing evidence obtained from the search of the apartment of the defendant, Andrian Arapu.

T 2 Federal Immigration and Customs Enforcement ("ICE") agents sought to contact Arapu, suspecting he was in the country illegally. In accordance with their standard protocol, ICE requested assistance from local law enforcement, in this case, the Aspen Police Department ("APD"). Detective Chi was among the APD officers providing assistance. When federal agents contacted Ara-pu, he refused to give them permission to enter his apartment, but he consented to Detective Chi entering the apartment to monitor a woman already inside. When the federal agents were arresting Arapu, he gave his consent to Detective Chi to gather his keys and phones, and to secure the apartment.

13 The woman asked to leave the apartment so that she could go to work, and Detective Chi, while still in the apartment, asked for her name, date of birth, and identification. When she could not provide identification, one federal agent entered the apartment to question her. At this point, another APD officer entered the apartment, observed a firearm, and alerted those present of her discovery. Other federal agents then entered the apartment to take pictures of the firearm. When the federal agents had finished their investigation, some twenty-five minutes after Arapu's arrest, Detective Chi gathered Arapu's keys and phones in preparation to leave and lock up the apartment. In the process, Detective Chi observed an open bag on the floor that appeared to contain cocaine. Soon thereafter, Detective Chi prepared an affidavit in support of a search warrant. The firearm and the drug-related evidence were seized in connection with the execution of the search warrant.

T 4 Arapu moved to suppress the evidence. The trial court granted the motion, ruling that Detective Chi had exceeded the seope of Arapu's consent by (1) asking the woman for identification while they were both still in the apartment, and (2) by remaining in the apartment while the federal agents conducted their investigation. The court concluded that because Detective Chi was in the apartment unlawfully when he observed the open bag and the firearm, any information regarding those observations had to be excised from the affidavit supporting the search warrant, which in turn rendered the warrant unsupported by probable cause.

15 We now reverse. We find that Arapu consented to Detective Chi's presence in his apartment to monitor the woman inside, and that such consent would reasonably include asking her for identifying information. Similarly, we find that Arapu consented to Detective Chi remaining in the apartment to gather Arapu's keys and phones, and to secure the apartment, and such consent would reasonably include remaining in the apartment until the federal agents had left. We, accordingly, find that the trial court erred in finding Detective Chi was unlawfully in the apartment when he observed the open bag containing drugs, and therefore reverse the trial court's suppression of the drug-related evidence. Because the prosecution concedes in its briefing to us that the discovery of the firearm was unlawful, we determine whether the affidavit would support a finding of probable cause if the firearm portions were excised, but with the observation of the open bag containing drugs included. We hold that it does, and that the firearm would have been discovered in a search pursuant to the redacted affidavit We therefore reverse the suppression order with regard to the firearm as well.

I.

T6 The prosecution charged Arapu with possessing a controlled substance, intending to distribute a controlled substance, inducing another person to distribute a controlled substance, and possessing a deadly weapon while committing the controlled substance crimes. Arapu claimed the police illegally entered his home, and he sought to suppress all observations made and evidence obtained at his apartment. At the suppression hearing, the trial court found the following facts based on testimony of three law enforcement officers, a woman in Arapu's apartment at the time of his arrest, and Arapu.

T7 On April 6, 2011, ICE Special Agents Carter, Hipps, and Turza sought to contact Arapu. ICE suspected Arapu was in the country unlawfully and intended to arrest him without a warrant. ICE agents typically request assistance from local law enforcement for safety purposes when contacting local residents, and, in this case, the APD provided Detective Chi, Officer Ward, and Officer Olson.

T8 Arapu answered his door when Agent Carter knocked, but he refused to let any law enforcement officers enter his apart, ment. Arapu and Agent Carter talked outside of the apartment for several minutes before Agent Carter asked permission to retrieve Arapu's immigration documents from inside the apartment. Arapu refused Agent Carter's request, but suggested that a woman named Elena Inozemtseva-who, unbeknownst to Agent Carter, was currently inside the apartment-could retrieve the immigration documents. Perceiving a risk to officer safety, Agent Carter immediately informed Arapu that "either we go in or she comes out." In response, Arapu invited Detective Chi into his apartment, apparently because Arapu knew Detective Chi from a prior incident where Detective Chi treated him fairly.

T9 The conversation between Arapu and Agent Carter continued, with Agent Carter outside the apartment, Arapu just inside the apartment, and Detective Chi further inside the apartment. Agent Carter asked Arapu if there were weapons in the apartment, and Arapu admitted that an air pistol was located in the kitchen. Detective Chi asked Arapu if he could pick up the air pistol, which he did, confirming that it was an air pistol. At this point, Detective Chi observed a fifty-round box of .38 caliber Remington ammunition, suggesting there might be a handgun in the apartment.

T10 Approximately fifteen to twenty minutes after knocking on Arapu's door, Agent Carter took Arapu into eustody. Arapu faced the apartment and asked Inozemtseva for his keys and phones while Agent Carter handcuffed him. Detective Chi then offered to bring Arapu's keys and phones to him, and to secure the apartment. Arapu replied "thanks" or "ok" in response to Detective Chi's invitation. Arapu did not ask Detective Chi to leave at that time, or place any temporal limitation on the amount of time Detective Chi could remain in the apartment.

{11 Detective Chi remained inside the apartment immediately after Arapu's arrest. Inozemtseva indicated she needed to leave for work, but before she left, Detective Chi asked for her name, date of birth, and identification. Detective Chi relayed this information to Agent Hipps, who then entered the apartment to question Inozemtseva for approximately four to nine minutes before deciding to take Inozemtseva into custody because she concluded that Inozemtseva was unlawfully present in the country. The entire exchange between Detective Chi, Agent Hipps, and Inozemtseva lasted between five to ten minutes.

112 While Inozemtseva was being handcuffed, Officer Olson stepped inside the apartment. She immediately directed Detective Chi's attention to a firearm partially covered by a hat on a shelf next to the apartment door where Arapu had been standing while he spoke with Agent Carter. Then, Agents Carter and Turza entered the apartment to take pictures of the firearm and spoke about whether the state or federal government would prosecute Arapu. About the same time-that is, approximately five to ten minutes after Arapu was arrested-Detective Chi gathered Arapu's keys and phones, and, while preparing to leave and secure the unit, he noticed an open bag under the coffee table on the floor. The bag appeared to contain drugs and drug paraphernalia. The drugs appeared to be cocaine.¹

1 13 Detective Chi obtained a search warrant for Arapu's apartment later that day. During the search, law enforcement seized 39.9 grams of cocaine, a loaded .38 caliber revolver, multiple plastic baggies (including some with residue), a seale, sereens and grinding equipment, baggies and bottles containing suspected marijuana, and co-mingled prescription drugs in an unlabeled plastic bottle.

T14 Arapu moved to suppress all of the evidence. The trial court granted the suppression motion, suppressing the firearm and drug-related evidence. In its written order, the trial court concluded the prosecution proved Arapu "invited" Detective Chi into his apartment, and that Arapu voluntarily accepted Detective Chi's offer to take his keys and phones, and to secure the apartment. Addressing the breadth of Arapu's consent under Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the trial court then concluded that Detective Chi had exceeded the scope of Arapu's consent by asking Inozemtseva for identification and by remaining in the apartment while the federal agents conducted their investigation. Because Detective Chi exceeded the scope of Arapu's consent, the trial court concluded he was not lawfully present in the apartment when he saw the cocaine and the firearm under the hat.

{ 15 The prosecution then filed this interlocutory appeal, and we now reverse.

II.

116 The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution presume that searches and seizures inside a home without a warrant are unreasonable. Payton v. New York, 445 U.S. 573, 585-87, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); People v. O'Hearn, 931 P.2d 1168, 1172-73 (Colo.1997). Absent an exception to the warrant requirement, the threshold of the home may not be crossed without a warrant. Payton, 445 U.S. at 590, 100 S.Ct. 1371; People v. Aarness, 150 P.3d 1271, 1277 (Colo.2006). One exception to the warrant requirement is consent, which may include express or implied limitations. People v. Torand, 622 P.2d 562, 565-66 (Colo.1981) (when a consenting person permits officers to search a home for specific items, officers exceed the scope of consent if they continue to search after finding those items). The test for determining whether an officer has exceeded the scope of an individual's consent to enter a home is "that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Jimeno, 500 U.S. at 251, 111 S.Ct. 1801.

117 Review of a trial court's order on the scope of a suspect's consent to search is a mixed question of fact and law. People v. Minor, 222 P.3d 952, 955 (Colo.2010). We review the trial court's factual determinations for clear error. Id. Conversely, we review legal questions de novo, including the question of "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. (quoting Jimeno ).

T 18 The trial court concluded that Detective Chi exceeded the seope of Arapu's consent both in regard to the discovery of the open bag containing drugs and the firearm. We first consider the trial court's suppression of the drug-related evidence, and then turn to the suppression of the firearm.

A.

T19 The trial court found that Detective Chi was unlawfully in the apartment when he observed the open bag containing what appeared to be cocaine because he had exceeded the scope of Arapu's consent in two different ways. First, the court found that Detective Chi exceeded the seope by asking Inozemtseva for identification while they were still in the apartment. Second, the court found that he exceeded the scope by remaining in the apartment while federal agents questioned Inozemtseva and observed and took pictures of the firearm under the hat.

T 20 Initially, Arapu consented to Detective Chi's presence in the apartment to monitor the activities of Inozemmtseva and to ensure she did not threaten officer safety. As the trial court put it, Arapu "invited] him in." Later, when it became clear that Arapu was to be taken into custody, he gave his consent to Detective Chi to remain in the apartment to gather his keys and phones, and to secure the premises. Arapu did not limit the amount of time Detective Chi could remain in the apartment.

121 The trial court determined that Detective Chi first exceeded this consent because, when Inozemtseva asked if she could leave the apartment to go to work, Detective Chi asked her for her name, date of birth, and identification while they were still inside the apartment. According to the trial court, Detective Chi was required to step outside with Inozemtseva to ask her for this information. We disagree. Arapu had consented to Detective Chi's presence in the apartment to monitor Inozemtseva, and that was exactly what he was doing in asking for her name, date of birth, and identification before she left. Detective Chi testified that he always asks for identifying information from a potential witness, such as Inozemtseva, and the trial court determined this is generally a reasonable police practice. We therefore conclude that a reasonable person would have understood Arapu's consent to monitor Inozemtseva in the apartment to include asking her for identifying information, and disagree with the trial court's conclusion to the contrary.

122 Next, the trial court determined that Detective Chi exceeded Arapu's consent by remaining in the apartment while Agent Hipps questioned Inozemtseva and then by remaining in the apartment while other federal agents observed and took pictures of the firearm under the hat.² Again, we disagree with the trial court's conclusion.

123 The trial court reasoned that Detective Chi should not have remained in the apartment while the federal agents were inside the apartment conducting their investigation. The trial court's order implies that he should have left the apartment during this time. But Arapu consented to Detective Chi remaining in the apartment to gather his keys and phones, and to secure the apartment. As noted above, Arapu placed no temporal limitation on this consent. We conclude that a reasonable person would have understood consent to secure the apartment as consent to remain in the apartment until everyone had left, at which time securing the apartment would be possible. Thus, we disagree with the trial court's conclusion that Detective Chi exceeded the scope of consent by waiting for the federal agents to leave before securing the apartment.

1 24 Ultimately, the trial court found that, because Detective Chi was in the apartment unlawfully at the time he observed the open bag containing drugs, the drug evidence had to be suppressed. Significantly, however, the trial court made no finding that the fact that Detective Chi remained in the apartment to ask Inozemtseva for identifying information and remained while the federal agents were conducting their investigation enabled Detective Chi to see the bag containing drugs. Nor did the trial court make a finding that Detective Chi extended his stay in order to obtain evidence. On the contrary, the trial court found that Detective Chi did not use this time to search for evidence but rather to ensure officer safety. In fact, as the trial court found, after gathering the keys and phones, when Detective Chi was ready to leave and lock up, he "looked down and saw an open black bag under the coffee table on the floor," which appeared to "contain drugs and drug paraphernalia."

125 Because Detective Chi was lawfully inside the apartment while he prepared to leave the apartment, under the cireum-stances, the trial court erred in its conclusion that information contained in the affidavit regarding the open bag must be excised and could not be considered in determining probable cause.

B.

126 We now turn to the trial court's conclusion that evidence of the firearm should be suppressed. In its briefing to us, the prosecution concedes that Officer Olson observed the firearm after illegally entering Arapu's apartment, and that therefore the portions of the affidavit relating to the firearm cannot be considered in determining whether probable cause existed for the search. The first question before us, then, is whether the affidavit established probable cause to search the apartment with the firearm portions stricken, but the observation of the open bag containing drugs included. Because our review of a redacted affidavit is de novo, People v. Hebert, 46 P.3d 473, 481-82 (Colo.2002) (collecting cases and holding "de novo review is the proper standard ... to determine whether a redacted affidavit is sufficient to establish probable cause"), we need not remand the case to the trial court for such a determination.

$27 "Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched." Hebert, 46 P.3d at 482 (internal citation omitted). The warrant affidavit begins by summarizing the April 6 contact with Arapu and Inozemtseva at Ara-pu's apartment. It then describes the drugs Detective Chi observed "while preparing to leave and secure the unit." Specifically, Detective Chi saw:

an open blue bag which contained a large block of a white powdery substance. The substance was in a clear plastic bag and appeared to your Affiant to be in excess of 4 grams. Through your Affiant['ls experience and training the substance is believed to be Cocaine. Your Affiant observed, sticking up in the blue bag, small 3/4" x 3/4" baggies, which your Affiant knows to be used in the packaging for sales of controlled substances like Cocaine.

{ 28 We find that these statements in Detective Chi's affidavit aver sufficient facts to conclude drug-related contraband was located in Arapu's apartment. Thus, we hold the redacted affidavit established probable cause to issue a search warrant for drugs, drug paraphernalia, and related items in Arapu's apartment.

129 Next, we consider whether the firearm would have been discovered by means independent of Officer Olson's observation, and therefore should not be suppressed. Under the independent source exception to the exclusionary rule, "unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was also discovered by means independent of the illegality." People v. Morley, 4 P.3d 1078, 1080 (Colo.2000); see also Murray v. United States, 487 U.S. 533, 542 & n. 3, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ("what counts is whether the actual illegal search had any effect in producing the warrant"). The Morley and Murray cases are instructive in our analysis because those cases are factually similar to this case.

130 In Morley, officers executed a drug sting. After the sting was complete, officers prepared a search warrant application, but also decided to enter the suspect's apartment without a warrant to preserve evidence. 4 P.3d at 1079. The warrantless entry was not justified by an exigency and was therefore illegal. See id. at 1081. Nevertheless, we cited Murray and concluded the evidence subsequently obtained from the apartment pursuant to the search warrant should not have been suppressed because the independent source rule applied, in part, because the search warrant affidavit relied on facts obtained independent of the illegal entry. Id.

{ 31 Similarly, Murray addressed a situation where federal agents entered a building without a warrant and viewed large quantities of marijuana. 487 U.S. at 585, 108 S.Ct. 2529. The agents could not justify the entry under an exception to the warrant requirement, but entered later pursuant to a search warrant that did not mention their prior observations inside the building. Id. at 536, 108 S.Ct. 2529. Under those facts, the Supreme Court found the marijuana should not be suppressed as long as "agents would have sought a warrant if they had not earlier entered the warehouse." Id. at 548, 108 S.Ct. 2529. The Court concluded the independent source rule must apply because "Llnvoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one." Id. at 541, 108 S.Ct. 2529 (citing Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)) (emphasis in original).

$82 Applying the reasoning of Morley and Murray to this case makes clear that the firearm is admissible under the independent source exception to the exclusionary rule. First, the charging document reveals the crimes charged are all predicated on possession of a controlled substance, and as discussed above, the redacted affidavit in support of the search warrant contained facts-obtained independent of Officer OIl-son's illegal observation-that established probable cause to issue a search warrant for controlled substances and related items in Arapu's apartment. We conclude that Detective Chi would have sought a search warrant for drugs regardless of whether the firearm had been seen. Second, we conclude the firearm would have been discovered when the search warrant was executed regardless of whether it had previously been seen. The search warrant authorized officers to search the entire apartment for "drug paraphernalia." This authorization suggests the scope of the warrant included a shelf near the apartment's front door in the same room where Detective Chi saw what appeared to be cocaine. Given the warrant authorized searching for drug paraphernalia, its scope included the space under a hat on the shelf where the firearm was partially concealed. Accordingly, we find that the trial court erred in suppressing evidence of the firearm.

IIL.

11 33 For the foregoing reasons, we reverse the trial court's suppression order.

Chief Justice BENDER dissents, and Justice HOBBS and Justice BOATRIGHT join in the dissent.

1 . According to Detective Chi's affidavit, he saw: an open blue bag which contained a large block of a white powdery substance. The substance was in a clear plastic bag and appeared to your Affiant to be in excess of 4 grams. Through your Affiant[')s experience and training the substance is believed to be Cocaine. Your Affiant observed, sticking up in the blue bag, small 3/4" x 3/4" baggies, which your Affiant knows to be used in the packaging for sales of controlled substances like Cocaine.

2 . We note that at one point in its opinion the trial court also seemed to fault Detective Chi for permitting the federal agents to conduct their investigation in the apartment. We are aware of no authority, and none has been brought to our attention, that would impose an obligation upon, or give authority to, a municipal law enforcement officer to direct how a federal investigation should be conducted. However, we need not address this issue because the trial court ultimately based its suppression order on the fact that Detective Chi, in addition to asking Inozemt-seva for identifying information while both were still in the apartment, remained in the apartment while the federal agents conducted their investigation.