I.
Facts and Procedural History
¶4
In 2020, an unknown individual broke into Z.H.'s home and
assaulted her. The individual fled before the police could
arrive. In her initial interviews with law enforcement, Z.H.
said that although she didn't recognize the perpetrator
during the assault, she thought it could be a classmate she
had noticed on the public bus she took to and from school.
Z.H. eventually identified this classmate to the police as
Castro-Velasquez.
¶5
A detective filed an affidavit seeking a Rule 41.1 order to
collect Castro-Velasquez's DNA via buccal swabs. After
the court granted the order, the detective contacted
Castro-Velasquez and told him that he had a judge's order
to collect his DNA. The detective asked Castro-Velasquez to
come to the station later that evening. But after they got
off the phone, the detective realized that the terms of the
Rule 41.1 order required that it be executed during the
daytime. At some point after 5 p.m., the detective tried to
reinitiate contact with Castro-Velasquez and sent a text
asking him to find a time to come to the police station the
next day. Castro-Velasquez didn't respond.
¶6
The next morning, the detective and a colleague visited
Castro-Velasquez's home. The detectives began
audio-recording the interaction just before they knocked on
his door. The recording captures the ensuing conversation
between the detectives and Castro-Velasquez. After
Castro-Velasquez invited them in, the
detectives questioned him about the incident, eliciting a
confession and details about the assault. After the
questioning, the detectives reminded Castro-Velasquez that
they had a court order to collect his DNA, placed him in
handcuffs, and took him to the police station to execute the
Rule 41.1 order.
¶7
The People charged Castro-Velasquez in a six-count criminal
complaint related to Z.H.'s assault. Castro-Velasquez
moved to suppress the statements he made to the detectives,
arguing that the detectives had violated his rights under the
Fourth Amendment, Crim. P. 41.1, and Harris in
obtaining the statements. The trial court denied the motion
in a written order. The case proceeded to trial, and a jury
convicted Castro-Velasquez of various offenses related to the
assault.
¶8
Castro-Velasquez appealed, and a division of the court of
appeals reversed his convictions and remanded the case for a
new trial. People v. Castro-Velasquez, No. 22CA2184,
¶ 28 (June 20, 2024). It concluded that, at the time
Castro-Velasquez made the inculpatory statements, the
execution of the Rule 41.1 order had commenced because
Castro-Velasquez had been seized within the meaning of the
Fourth Amendment. Id. at ¶ 18. Therefore, the
division determined that the trial court should have
suppressed his statements. Id. at ¶ 26.
¶9
We granted the People's petition for certiorari
review.[1]
II.
Analysis
¶10
We begin by identifying the standard of review. Next, we
review constitutional limitations governing certain
police-citizen encounters; an exception that allows for the
collection of nontestimonial identification evidence; and
Crim. P. 41.1, which proceduralizes that exception. Then we
apply those principles to the facts of this case.
A.
Standard of Review
¶11
Appellate review of a trial court's denial of a motion to
suppress evidence presents a mixed question of fact and law.
People v. Gothard, 185 P.3d 180, 183 (Colo. 2008).
Under this standard, we typically defer to the trial
court's findings of fact when they are supported by
competent evidence in the record. People v. D.F.,
933 P.2d 9, 14 (Colo. 1997). But "where the statements
sought to be suppressed are audio- and video-recorded, and
there are no disputed facts outside the recording controlling
the issue of suppression, we are in a similar position as the
trial court" to assess the facts related to suppression,
so our review is de novo. People v. Madrid, 179 P.3d
1010, 1014 (Colo. 2008). We also review de novo the
attendant legal conclusions, such as whether a defendant was
seized for Fourth Amendment purposes. People v.
Ortega, 34 P.3d 986, 990 (Colo. 2001).
B.
The Fourth Amendment
¶12
The Fourth Amendment and its analogue in the Colorado
Constitution protect individuals from unreasonable searches
and seizures. U.S. Const. amend. IV; Colo. Const. art. II,
§ 7. Consistent with the text of these protections,
individuals are entitled to be "secure in their
persons" unless the police have "probable
cause" for the search or seizure. U.S. Const. amend. IV;
Colo. Const. art. II, § 7; see also Safford Unified
Sch. Dist. No. 1. v. Redding, 557 U.S. 364, 371 (2009)
("[T]he required knowledge component of probable cause
for a law enforcement officer's evidence search is that
it raise a 'fair probability,' or a 'substantial
chance,' of discovering evidence of criminal
activity." (internal citations omitted) (quoting
Illinois v. Gates, 462 U.S. 238, 243 n.13 (1983))).
¶13
These constitutional protections apply when a person has been
seized. A person has been seized for constitutional purposes
when, "in view of all of the circumstances surrounding
the incident," a reasonable person wouldn't feel
free to leave. People v. Brown, 2022 CO 11, ¶
16, 504 P.3d 970, 975 (quoting Brendlin v.
California, 551 U.S. 249, 255 (2007)). Despite societal
pressure to cooperate with the police, not all police-citizen
encounters amount to a seizure. People v. Johnson,
865 P.2d 836, 842 (Colo. 1994).
¶14
Accordingly, Colorado law recognizes three categories of
police-citizen encounters: (1) a consensual interview, (2) an
investigatory stop, and (3) an arrest. Brown, ¶
15, 504 P.3d at 975. A consensual interview involves a
non-coercive request for cooperation. Id. No
coercion means no seizure, and no seizure means that a
consensual interview doesn't implicate the Fourth
Amendment. Id. On the other end of the spectrum is a
more formal and sustained seizure of a person in the form of
an arrest, which, consistent with the Fourth Amendment
baseline noted above, requires probable cause. People v.
Castaneda, 249 P.3d 1119, 1122 (Colo. 2011). An officer
has probable cause to arrest when all facts and circumstances
known to the officer at the time of arrest justify the
officer's belief that there is a fair probability that
the person arrested has committed, or is committing, a crime.
Brown, ¶ 18, 504 P.3d at 975-76.
¶15
This leaves the middle category: an investigatory stop, which
requires reasonable suspicion. Terry v. Ohio, 392
U.S. 1, 30 (1968). Officers possess reasonable suspicion when
the "facts demonstrate that a prudent officer has an
articulable basis for suspecting that a defendant is involved
in criminal activity," a threshold lower than probable
cause. People v. Brown, 217 P.3d 1252, 1256 (Colo.
2009).
¶16
In exchange for a lower threshold justifying the seizure,
investigatory stops must be "brief in duration, limited
in scope, and narrow in purpose." People v.
Pacheco, 182 P.3d 1180, 1183 (Colo. 2008) (quoting
People v. Garcia, 11 P.3d 449, 453 (Colo. 2000)). In
judging whether an investigatory
stop has been appropriately constrained, courts consider
"the length of the detention, the extent of and reasons
for any movement of the suspect from one location to another,
the diligence exercised by the investigating officer in
pursuing the investigative purpose that justified the
detention, and the availability of less intrusive
means." People v. Ball, 2017 CO 108, ¶ 9,
407 P.3d 580, 584. And because the purpose of an
investigatory stop is to confirm or dispel the officer's
articulable suspicion, the stop "may be no more
intrusive than required to diligently do so."
Id., 407 P.3d at 583. If the interaction provides
the officer with probable cause, the Fourth Amendment permits
the officer to elevate the seizure to a formal arrest.
Id. at ¶ 11, 407 P.3d at 584.
¶17
Crim. P. 41.1 seizures occupy a similar spot along this
continuum of permissible governmental intrusion on individual
liberty. We adopted the rule in response to the Supreme
Court's opinion in Davis v. Mississippi, 394
U.S. 721, 727 (1969). See People v. Madson, 638 P.2d
18, 31 (Colo. 1981). In Davis, the Court built on
Terry's foundation regarding investigatory stops
to hold that, in limited circumstances, it is consistent with
the Fourth Amendment for the police to collect nontestimonial
identification evidence, like a suspect's fingerprints,
without probable cause. Davis, 394 U.S. at 727-28.
C.
Seizure for Nontestimonial Identification Evidence and Crim.
P. 41.1
¶18
Rule 41.1 authorizes a court to issue an order for the
collection of nontestimonial identification evidence under
certain circumstances. The order must be supported by (1)
"probable cause to believe that an offense has been
committed," (2) "reasonable grounds . . . to
suspect that the person named or described in the affidavit
committed the offense," and (3) an affirmation that the
collected evidence "will be of material aid in
determining whether the person named in the affidavit
committed the offense." Crim. P. 41.1(c).
¶19
In Harris, we discussed the protections that must
attend the execution of a Rule 41.1 order. There, an officer
obtained a Rule 41.1 order and served it on Harris at his
work site before immediately taking Harris into custody.
Harris, 762 P.2d at 652. On the way to the hospital
to conduct the court-ordered procedures, the officer asked
Harris questions, which the officer later testified were
"part of the plan" to obtain incriminating
information. Id. at 652-53. But Rule 41.1 allows
officers lacking probable cause to seize a suspect only for a
very limited purpose, which excludes interrogation.
Id. at 656. So, when the officer exceeded that
limited purpose, he violated Harris's Fourth Amendment
rights. Id. at 656-58. Because of the "special
insult to human dignity" posed by the collection of
nontestimonial evidence, People v. Williams, 557
P.2d 399, 406 (Colo. 1976), a reviewing court's role is
to ensure that officers only exercise this authority with the
strict understanding
that "Crim. P. 41.1 simply does not authorize a police
officer to intentionally and purposefully elicit information
from a criminal suspect . . . on less than probable
cause," Harris, 762 P.2d at 658.
¶20
In evaluating when the limitations of the rule apply,
Harris was an easy case. When an officer arrives at
a defendant's work site, serves a defendant with a Rule
41.1 order, and immediately transports him to the hospital in
the officer's vehicle for execution of the order,
it's simple for the reviewing court to identify when
execution of the order began and the point after which any
inculpatory statements elicited by the officer went beyond
the permitted duration, scope, and purpose of the authorized
seizure. See Harris, 762 P.2d at 657.
¶21
But under other circumstances, determining when an officer
has begun to execute a Rule 41.1 order can be far less clear.
We have long interpreted Crim. P. 41.1 with reference to the
limitations imposed by Davis and its progeny.
See, e.g., Harris, 762 P.2d at 654-55. Thus, we hold
that the execution of a Rule 41.1 order begins when an
officer exerts the level of control that would cause a
consensual interview to become a seizure that is cognizable
under the Fourth Amendment; that is, when a reasonable person
wouldn't feel free to leave. See Brown, ¶
16, 504 P.3d at 975.
D.
Application
¶22
The affidavit submitted in support of the Rule 41.1 order
here shows that, when the detectives arrived at
Castro-Velasquez's home, they possessed only reasonable
suspicion, not probable cause, that Castro-Velasquez was the
individual who had committed the alleged assault. Armed with
that intermediate level of confidence, the scope of the
permissible seizure was limited by the scope of the order and
subject to the constitutional constraints on investigatory
stops. See Harris, 762 P.3d at 656. Therefore,
because "searches and seizures inside a home without a
warrant are presumptively unreasonable," Groh v.
Ramirez, 540 U.S. 551, 559 (2004), the Rule 41.1 order
was the only valid authority for this seizure, and the
execution of the Rule 41.1 order began when Castro-Velasquez
reasonably no longer felt free to leave. This means that the
detectives could seize Castro-Velasquez only for the purpose
of collecting nontestimonial identification evidence and not
for the purpose of conducting an interrogation. See
Crim. P. 41.1(h)(2); Harris, 762 P.2d at 658.
1.
The Execution of the Crim. P. 41.1 Order Began Before
Castro-Velasquez's Interrogation
¶23
During the phone call and text message exchange with
Castro-Velasquez the night before the interrogation, the
detective told Castro-Velasquez that he needed to come to the
police station so law enforcement could collect his DNA.
But the next morning, before Castro-Velasquez responded to
the text message or appeared at the station, the detectives
went to his home.
¶24
The division below concluded, and we agree, that by the time
Castro-Velasquez met the detectives at the door to his home,
he reasonably believed that they were there to execute the
order he had been informed of the night before. See
Castro-Velasquez, ¶ 18; see also People v.
Melton, 910 P.2d 672, 677 (Colo. 1996) (indicating that
an officer's subjective intent for initiating the
interaction is relevant to the Fourth Amendment analysis when
that intent is communicated to the suspect), superseded
on other grounds by rule as stated in, People v.
Zhuk, 239 P.3d 437, 439 (Colo. 2010). Therefore, the
threshold between a consensual encounter and an investigatory
stop had been crossed, and Castro-Velasquez had been seized
for purposes of the Rule 41.1 order, as soon as the
detectives knocked on his door. Harris, 762 P.2d at
654.
¶25
Simply put, if a suspect is informed by detectives of a
judicial order authorizing the collection of his DNA to
investigate a crime, and that defendant is faced with those
detectives at his doorstep roughly sixteen hours later, a
reasonable person in the suspect's position would harbor
the objectively reasonable belief that the officers are there
to execute the order and that he may not simply leave. At
that point, the suspect is seized for Fourth Amendment
purposes. Id. And unless the officers independently
possess probable cause to
believe the suspect committed the crime at issue, they are
strictly prohibited from "intentionally and purposefully
elicit[ing] information from" the suspect in a manner
not authorized by the order. Id. at
658.[2]
¶26
The standard used to assess a seizure differs from the
standard used to assess custodial interrogation under
Miranda v. Arizona, 384 U.S. 436 (1966). See
People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002). A
suspect gains the benefit of the protections provided under
Harris before being subjected to
Miranda-like custodial interrogation. This must be
the case for two reasons: one formal and one functional.
First, in Harris, we never referenced
Miranda custody as the controlling standard. And
second, if such a rule were to be implemented, it would be
far too easy for officers to circumvent Harris by
disclosing the existence of a Rule 41.1 order to a defendant
and then slow-rolling the imposition of Miranda-like
custody.
¶27
This rule operates in the same manner whether a suspect
appears at the station or is met at his home. In the former
circumstance, it may be easier to expeditiously begin the
procedures approved in the Rule 41.1 order. But that
doesn't mean that in the latter circumstance an officer
may use the time during transit to interrogate the suspect.
¶28
The People emphasize that Castro-Velasquez invited the
detectives inside. Even so, he only did so after the
detectives told his family members, "[W]e need to talk
to Angel." And once inside, the detectives continued to
exert control over Castro-Velasquez, telling him at one point
that they were "pushing [him]" to share more about
what he might know about the crime. When Castro-Velasquez
denied knowing anything about the alleged assault, the
detectives responded, "[Y]ou do, Angel." To be
clear, we don't include these details to suggest that the
detectives coerced Castro-Velasquez into making the
inculpatory statements he wishes to suppress, but only as
further evidence that a reasonable person in
Castro-Velasquez's position could infer from the tenor of
the interaction that this wasn't a consensual interview;
he wasn't free to terminate the conversation at will; and
the execution of the Rule 41.1 order had begun.
2.
Castro-Velasquez's Statements Must Be Suppressed
¶29
From this conclusion, the division below applied
Harris and determined that the appropriate remedy
was suppression of the statements Castro-Valasquez made in
response to the detectives' questioning.
Castro-Velasquez, ¶ 22; see Harris,
762 P.2d at 657 ("Factors relevant to this determination
include: the subjective intent of the police in executing the
order; an objective assessment of the officer's
actions in light of the facts and circumstances known to him;
[and] the identity of the party who initiated the
conversation ...."); see also People v. Diaz,
53 P.3d 1171, 1177 (Colo. 2002) ("Suppression of the
illegally obtained evidence was the . . . required remedy for
the unconstitutional police search and seizure."). We
agree.
¶30
Two details in the record epitomize why Harris
mandates suppression. First, at the motions hearing, the
testifying detective admitted that the conversation was
intended to "illicit responses about what
[Castro-Velasquez] did the night of the crime." This is
precisely the conduct Harris prohibits. 762 P.2d at
657. Second, the circumstances of the conversation confirm
that the detectives drove the questioning. At the hearing, a
detective agreed that Castro-Velasquez "did not just
blurt out the information" but that "[i]t was in
response to questions." Again, this appears to be an
exemplar of the conduct that Harris deemed improper.
Id. at 658.
¶31
Lastly, like the division, we can't conclude beyond a
reasonable doubt that Castro-Velasquez's inculpatory
statements didn't contribute to his guilty verdicts; so,
under constitutional harmless error review, reversal is
appropriate. See Castro-Velasquez, ¶ 27;
see also Bernal v. People, 44 P.3d 184, 200 (Colo.
2002) ("To be classified as constitutional harmless
error, a court must be confident beyond a reasonable doubt
that the error did not contribute to the guilty
verdict."). Considering the probative value of a
defendant's confession, there is at least a
reasonable doubt that the now-suppressed statements played a
role in the jury's guilty verdict. See Hagos v.
People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119.