People v. Arapu

Chief Justice BENDER,

dissenting.

34 The majority holds that the seope of Arapu's consent to Detective Chi's presence in his apartment was broader than the seope found by the trial court. Because I believe that the trial court's factual determination of the seope of consent was supported by credible evidence, and thus not clearly erroneous, I would affirm its suppression order. Hence, I respectfully dissent.

I.

135 Prior to making its ruling, the trial court held two hearings, at which it heard testimony from four witnesses, including the defendant, and considered eleven exhibits. Ultimately, in a lengthy written order, the trial court found as a matter of fact that Detective Chi's actions exceeded the narrow scope of Arapu's consent and therefore suppressed all of the evidence uncovered pursuant to a search warrant that was based on Detective Chi's unlawful observations.

136 The trial court found that on the morning of April 6, 2011, three special agents from U.S. Immigration and Customs Enforcement and four Aspen Police Department officers, including Detective Chi, traveled to Arapu's apartment in Aspen based on a tip that he was in the United States illegally. At about 8:50 a.m., the officers arrived at Arapu's apartment. -After identifying themselves, the officers asked Arapu if they could enter his apartment. He said no and stepped out onto the landing in front of his apartment, leaving the door slightly ajar, to speak with the federal agents.

T 37 The trial court found that after speaking with the agents for a few minutes regarding his immigration status, Arapu stated that he wished to retrieve his immigration papers because they would help him answer the agents' questions. Because the agents had safety concerns about Arapu retrieving anything from his apartment, one of the agents suggested that he would retrieve the papers. Arapu denied this request and instead stated that a woman, Elena Inozemtseva, was inside his apartment and that she could retrieve the papers for him. At about the same time, one of the agents observed through the open apartment door that there was a partially dressed woman located within the apartment.

138 The agents stated that it was unsafe for them to be questioning Arapu while there was another individual inside his apartment and told him that either the woman had to come out of the apartment or he had to allow an officer inside to monitor her. The trial court found that Arapu again denied the request of the federal agents to enter his apartment, but that he agreed to allow Detective Chi into the apartment to monitor Inozemtseva. Apparently, Arapu had known Detective Chi previously and trusted him. Detective Chi entered the apartment and the agents resumed questioning Arapu.

1 89 The trial court found that, at approximately 9:10 a.m., the federal agents informed *688Arapu that they were going to take him into custody. In response, Arapu asked Inozemt-seva to collect his keys and cellphones and to lock the apartment. Detective Chi, who was still in the apartment, offered to do this task instead, and the trial court found that Arapu accepted this offer by stating "Thanks" or “OK.”

1 40 After Arapu had been taken into custody and was removed from the seene, the trial court found that Inozemtseva gave Detective Chi Arapu's keys and cellphones. At this point, Detective Chi asked Inozemtseva for her name, date of birth, and identification. Inozemtseva stated that she did not have any identification, but agreed to write her name and date of birth on a piece of paper that Detective Chi then handed to one of the federal agents outside the door. Ino-zemtseva stated that she needed to leave for work, but was stopped by one of the federal agents as she attempted to exit the apartment. The trial court found that Inozemtse-va then retreated into the apartment and was followed by the federal agent. Inozemtseva produced an expired passport to the agent. In response, the agent informed Inozemtseva that she was also being taken into custody.

¶ 41 As the agent was handcuffing Ino-zemtseva, another agent stepped into the apartment and alerted Detective Chi to the presence of a handgun underneath a hat on a shelf near the door. At this time, two additional federal agents stepped into the apartment and began photographing the gun. The trial court found that this occurred at around 9:20 a.m., or five to ten minutes after Arapu had been removed from the apartment.

11 42 Onee the agents finished photographing the gun, Detective Chi finally moved to clear and secure the apartment. At this time, however, he noticed an open black bag on the floor underneath a coffee table. Inside the bag was a plastic bag that appeared to contain a significant amount of cocaine as well as other plastic baggies consistent with the distribution of cocaine. Detective Chi called in another Aspen police officer to take pictures of the drugs. Thereafter, at about 10 am., Detective Chi cleared and secured the apartment. Later that day, Detective Chi included these observations in an affidavit that served as the sole basis for a warrant to search Arapu's apartment.

€43 The trial court found that Detective Chi violated the narrow seope of the consent that Arapu gave him to enter the apartment. Arapu only consented to have Detective Chi enter the apartment to: (1) monitor Inozemt-seva while Arapu was questioned outside of the apartment; and (2) collect his keys and cellphones and secure the apartment once he was in custody. Because it found that Detective Chi began questioning Inozemtseva after Arapu had already been removed from the scene and that it was unrelated to the task of collecting Arapu's keys and phones and securing the apartment, this action did not fall under either of the narrow forms of consent that Arapu gave.

4 44 Accordingly, the trial court found that Detective Chi was unlawfully present in Ara-pu's apartment when he observed the drugs in the black bag on the floor. Additionally, the trial court found that Arapu did not consent to the entry of any of the federal officers and thus found that any observations of the gun were unlawful. Thus, the trial court found that the search warrant was predicated on observations made in violation of the Fourth Amendment and suppressed the observations and any evidence uncovered as a result of the search warrant.

IL.

1 45 "It is clear that the seope of a consent search is limited by the breadth of the consent given." United States v. Pena, 920 f.2d 1509, 1514 (10th Cir.1990). Accordingly, the scope of a warrantless search that is based on consent is constitutionally limited to what "the typical reasonable person [would] have understood by the exchange between the officer and the suspect[.]" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); see also People v. Dumas, 955 P.2d 60, 62 (Colo.1998) ("A warrant-less search conducted on the basis of consent is limited by the terms given by the consenting party.").

¶ 46 "Whether a search remained within the boundaries of the consent is a fuctual *689question to be determined from the totality of the cireumstances, and the trial court's factual determinations will be upheld on appeal unless they are clearly erroneous." People v. Olivas, 859 P.2d 211, 214 (Colo.1993) (emphasis added); see also People v. Minor, 222 P.3d 952, 955 (Colo.2010). "It is the function of the trial court and not the reviewing court to weigh the evidence and determine the credibility of witnesses," and thus, "we will not substitute our judgment for that of the trial court...." People v. Mendoza-Balderama, 981 P.2d 150, 157-58 (Colo.1999). Accordingly, we must defer to the trial court's resolution of this factual question, so long as its underlying factual findings "are supported by competent evidence in the record." People v. D.F., 933 P.2d 9, 14 (Colo.1997).

IIL

T 47 The present case involves two related factual questions: (1) what permission did Arapu give to Detective Chi to enter his apartment; and (2) did Detective Chi's actions exceed that permission? Unlike questions of law, these purely factual determinations are reserved primarily for the trial court. Accordingly, we afford them great deference and will not disturb them unless it can be said that they are unsupported by the record and thus clearly erroneous.

11 48 Applying this standard, I believe that the trial court's finding that Detective Chi's actions exceeded the narrow seope of Arapu's consent is supported by competent evidence from the record and thus its decision to suppress the evidence uncovered as the fruit of an illegal search was not clearly erroneous.

A.

149 Initially, I disagree with the majority's finding that Detective Chi's questioning of Inozemtseva was implicitly within the consent that Arapu gave when he permitted Detective Chi to enter the apartment to ensure officer safety. Id. at 121. The majority reasons that this consent extended to Detective Chi's questioning of Inozemtseva in the apartment after Arapu had been arrested and removed. Id.

50 This reasoning, however, ignores two essential facts: (1) Arapu consented to Detective Chi's entry only for the narrow purpose of monitoring Inozemtseva while he was questioned by Agent Carter;1 and (2) Detective Chi did not question Inozemtseva until after Agent Carter had completed his questioning of Arapu, arrested him, and removed him from the apartment. Therefore, at the time that Detective Chi began questioning Inozemtseva inside Arapu's apartment, the consent that Arapu gave to Detective Chi's presence had already expired. Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 ("The scope of a search is generally defined by its expressed object."). Onee Agent Carter completed his questioning of Arapu, Detective Chi was no longer lawfully within the apartment pursuant to the initial consent he received from Arapu.

T 51 The majority provides no support for its assertion that a reasonable person would understand that consent to allow a law enforcement officer to enter an apartment to ensure officer safety implicitly includes authority to question any individual that may be found within that home. Maj. op. at 1 21; cf. Wayne R. LaFave, Search and Seigure: A Treatise on the Fourth Amendment § 8.1(c) (2004) (collecting federal cases that support the principal that "[wlhen a purpose is included in the request [to search], then the consent should be construed as authorizing only that intensity of police activity necessary to accomplish the stated purpose"). This conclusion is further undermined by the trial court's finding that Inozemtseva asked Detective Chi to allow her to leave and the likelihood that Detective Chi could have lawfully questioned her once she left the apartment.

B.

152 Next, the majority claims that Detective Chi's decision to remain in Arapu's apartment for upwards of ten minutes after *690Arapu had been arrested and removed was within the seope of Arapu's consent to allow Detective Chi to collect his phones and keys and to lock the apartment. Maj. op. at 11 23-24. The majority reasons that because Arapu's consent to Detective Chi's offer to complete this task did not include a "temporal limitation," it is reasonable to assume that this consent did not expire "until everyone had left, at which time securing the apartment [was] possible." Id. at 1 28.

153 This reasoning contravenes the "reasonable person" standard outlined in Jimeno. Rather than consider what a reasonable person would have inferred from a suspect's consent to allow an officer to gather his belongings and lock his apartment, the majority highlights Arapu's failure to set forth a time constraint to conclude that Detective Chi was lawfully present in the apartment so long as it was not yet empty. Before anyone began questioning Inozemtseva, the trial court found that she had already given Detective Chi the keys and cellphones. Thus, all that remained for Detective Chi to do was clear and secure the apartment. Instead, he allowed three federal agents to unlawfully enter and question Inozemtseva-who was attempting to leave-about her immigration status. Because, as a matter of law, I believe that an objectively reasonable person would understand consent to secure a dwelling to last only as long as it takes to do so, I would hold that the trial court's finding was not clearly erroneous.

54 In my view, it is inconsistent for the majority to acknowledge that the prosecution concedes that the officer that entered the apartment to view the gun did so unlawfully, id. at 1 26, while also maintaining that Detective Chi could not reasonably be expected to secure the premises until all of the "trespassers" that entered the apartment after the discovery of the gun had left. Under the objectively reasonable standard, I believe that an officer tasked with securing an apartment is also responsible for removing those that are unlawfully present. The only individual that was lawfully present, Inozemtse-va, was attempting to leave.

55 Lastly, I disagree with the majority's implicit alternative reasoning that Detective Chi's unconsented lingering in Arapu's apartment was harmless because he found the drugs at the time he moved to secure the apartment and thus would have seen them whether he had instantly moved to secure the apartment or, as he did, waited upwards of ten minutes to do so. Id. at 124. I find this reasoning speculative. See People v. Diaz, 53 P.3d 1171, 1176 (Colo.2002) ("Evidence is not admissible under the inevitable discovery exception based on speculation that the evidence would have been discovered anyway. The prosecutor must establish that there was a reasonable probability that the evidence would have been discovered in the absence of police misconduct, and that the police were pursuing an independent investigation at the time the illegality occurred." (Citations omitted)); see also LaFave, supra, § 11.4(a) ("[The 'inevitable discovery' rule simply is inapplicable in those situations where its use would, as a practical matter, operate to nullify important Fourth Amendment safeguards."). Even if the contraband were in plain sight, then it stands to reason that Detective Chi's presence in the apartment for upwards of ten minutes to watch the interrogation of Inozemtseva provided a much greater opportunity to discover the contraband than if he had been moving with purpose through the apartment to collect Arapu's belongings and to secure the apartment.

IIL

156 For the foregoing reasons, I would affirm the trial court's order suppressing the evidence obtained as a result of the unlawful search in excess of Arapu's narrow consent. Hence, I respectfully dissent.

I am authorized to state that Justice HOBBS and Justice BOATRIGHT join in the dissent.

. Arapu only consented to Detective Chi's entry because Agent Carter told him that he either had to order Inozemtseva (who was "half-dressed") outside (around 9 a.m. in early April in Aspen) or he had to permit Detective Chi's entry to allow him to monitor Inozemtseva.