People v. Rivera

Justice LOHR

dissenting:

The majority holds that the trial court applied the proper standards in determining that informant Richard White voluntarily consented to the electronic monitoring of a conversation between him and the defendant, Robert I. Rivera, and therefore Rivera’s motion to suppress evidence obtained from such monitoring was properly denied. I respectfully dissent and would remand the case to the trial court for application of the proper test.

Prior to trial on criminal charges, the defendant moved to suppress evidence obtained by electronic monitoring of a conversation between him and Richard White. The defendant based this motion in part on section 16-15-102(10), 8A C.R.S. (1986), which provides, as relevant here, that an “aggrieved person ... may move to suppress the contents of any. intercepted ... oral communication, or evidence derived therefrom, on the grounds that: The communication was unlawfully intercepted,_” For the purpose of section 16-15-102(10), an oral communication is unlawfully intercepted if it is obtained by eavesdropping, in violation of section 18-9-304(1), 8B C.R.S. (1986). People v. Morton, 189 Colo. 198, 201, 539 P.2d 1255, 1258 (1975). Section 18-9-304(1) provides in pertinent part:

Any person not visibly present during a conversation or discussion commits eavesdropping if he:
(a) Knowingly overhears or records such conversation or discussion without the consent of at least one of the principal parties thereto, ...

The issue in this case is whether White, who was a principal party to the conversation, voluntarily consented to the electronic monitoring. See Morton, 189 Colo. at 201, 539 P.2d at 1258.

The majority adopts a test for determining the voluntariness of consent to the electronic monitoring of a conversation for purposes of applying the eavesdropping statute, § 18-9-304, 8B C.R.S. (1986), drawn from the corresponding federal standard. As I understand the majority, when a defendant seeks to suppress evidence pursuant to section 16-15-102(10), 8A C.R.S. (1986), on the ground that the government did not obtain the voluntary consent of one of the parties to the electronically monitored conversation, the burden is on the People to establish by a preponderance of the evidence that, based on the totality of the circumstances, one of the parties did voluntarily consent to such monitoring. A party’s consent is not voluntary for the purposes of making this determination if it is the product of threats, coercion, undue influence or improper conduct by a government official. A good faith promise to the allegedly consenting party by a government official to seek leniency or other concessions with respect to criminal charges pending against the consenting party does not vitiate an otherwise valid consent. On the other hand, when consent “is the product of improper police conduct, such as coercion or promises which have no realistic basis in fact,” maj. *793op. at 790, it is involuntary for purposes of applying section 18-9-304. I agree with the foregoing standards.

As the majority acknowledges, the issue presented by the motion to suppress is whether White’s consent to the electronic monitoring of a conversation with the defendant was the product of detective Vasquez’s improper conduct in promising White that the charges against him would be dropped if he gave his consent, when in fact the district attorney had already decided not to file charges regardless of whether White consented. If this promise were the motivating factor, White’s consent would not be voluntary, for it would be based on a promise having no realistic basis in fact. The trial court’s rulings do not convince me that it applied this component of the voluntariness test.

The trial court began by finding that Richard White was wired for sound ... he consented to ... being wired for sound; ... he was promised leniency; ... the leniency promised was initially that the officer would recommend to the prosecution that they be lenient with him if he cooperated and Detective Vasquez after learning that the District Attorneys Office had failed to file the possession of a weapon by a previous offender charge against [White] for a lack of evidence then advised ... White that he would guaranty that the charges would not be filed.
The Court finds this act on the part of the detective ... reprehensible and deceitful, but in and of itself would not affect the law....

The trial court then embarked on a lengthy recitation of the federal caselaw governing voluntariness of consent in the electronic monitoring context.

The trial court’s actual application of the test to the issue of the voluntariness of White’s consent is by contrast quite cursory, consisting entirely of the following findings:

the Court finds from the totality of the circumstances by not only the preponderance of the evidence but by clear and convincing evidence that there was no coercion [or] threats of penalty to the informant to obtain his consent and that there was a promise, even though a deceitful one, but a promise, does not vitiate his consent. The Court finding there was consent to the conversation the Motion to Suppress based on lack of consent is denied.

In my view, the latter findings may be read to equate detective Vasquez’s “deceitful promise” with a legitimate promise of leniency for purposes of determining the vol-untariness of White’s consent. I see no basis for the majority’s assumption, derived from these rulings, that the trial court “determined that Vasquez’ deceitful statement did not influence White's decision because White had decided to participate in the proposed monitored transaction before Vasquez made the deceitful remark.” Maj. op. at 792.1

I would reverse the judgment of the court of appeals and direct that the matter be returned to the trial court with directions to determine based on the existing record whether under the totality of the circumstances White’s consent was induced by detective Vasquez’s improper conduct in making a deceitful promise. If White’s consent was improperly induced, the defendant’s judgment of conviction should be reversed; if not, it should be affirmed. Accordingly, I respectfully dissent.

QUINN, C.J., and ERICKSON, J., join in this dissent.

. The Colorado Court of Appeals held that the trial court erred in denying the defendant’s motion to suppress because "there can be no lawful consent secured by fraudulent inducement.” People v. Rivera, 765 P.2d 624, 627 (Colo.App. 1988). I agree with this principle, as the majority apparently also does. See maj. op. at 791. I am unable to determine, however, whether the trial court in fact found that White’s consent was the product of the fraudulent promise and therefore would remand for further findings.