People v. Mendez
2017 COA 129
| Colo. Ct. App. | 2017Background
- A confidential informant (CI) told police he could buy methamphetamine from Mendez; police equipped the CI with an audio wire and a concealed video camera and sent him into Mendez’s apartment for a controlled buy.
- Audio was transmitted live to police; the video was recorded and reviewed after the buy. The CI returned with methamphetamine and cash; strip-searches before and after found no drugs on him.
- Police charged Mendez with distribution of a schedule II controlled substance; Mendez moved to suppress the video evidence as an unreasonable Fourth Amendment search.
- The district court denied suppression, concluding Mendez consented to the CI’s presence; at trial the People introduced the video, photos from it, and a translated transcript of recorded conversation.
- Defense argued (1) the covert video was a Fourth Amendment violation distinct from audio, (2) the prosecution failed to disclose a CI–investigator immigration discussion (Brady/Crim. P. 16), and (3) jurors should not have unfettered access to the video and transcript during deliberations.
- The court rejected suppression; found a Rule 16 discovery violation but denied dismissal (ordering only an interview of the investigator); admitted the video and allowed the jury access during deliberations. Judgment affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CI’s secret video inside home violated Fourth Amendment | Video surveillance by CI is permissible because CI was an invited guest and any observations are exposable to police | Video recording is materially different from audio and gives police virtual entry, so it was an unreasonable warrantless search | No Fourth Amendment violation; invited CI forfeited any reasonable expectation of privacy in what the CI could see or record |
| Whether prosecution’s nondisclosure of CI–investigator immigration discussion required reversal (Brady/Crim. P. 16) | Prosecutor satisfied disclosure obligations (no prejudice) | Failure to disclose was Brady/Rule 16 violation; defense was prejudiced because it could not impeach CI about motive | Trial court abused discretion in remedy (denying CI recall) but error was harmless beyond a reasonable doubt given overwhelming evidence; no reversal |
| Whether district court’s sanction (interview of investigator) cured discovery prejudice | Sanction adequate to cure prejudice | Sanction inadequate because defense could not cross-examine CI about motive for participation | Sanction was inadequate, but error harmless; conviction stands |
| Whether jury should have had unfettered access to video and transcript during deliberations | Video and transcript are non‑testimonial evidence; access allowed | Defense argued jurors would give undue weight to the recordings and transcript | Access permitted; court properly distinguished testimonial from non‑testimonial exhibits and did not abuse discretion |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (recognizes reasonable expectation of privacy framework)
- United States v. White, 401 U.S. 745 (one-party informant may record conversations without Fourth Amendment violation)
- United States v. Brathwaite, 458 F.3d 376 (5th Cir.) (invited informant’s videotaping forfeits expectation of privacy)
- United States v. Lee, 359 F.3d 194 (3d Cir.) (no constitutional distinction between consensual audio and video surveillance)
- United States v. Davis, 326 F.3d 361 (2d Cir.) (hidden camera memorialized what invited guest could see; no Fourth Amendment protection)
- United States v. Thompson, 811 F.3d 944 (7th Cir.) (collecting circuits holding no relevant distinction between secret audio and video when informant is lawfully present)
- United States v. Longoria, 177 F.3d 1179 (10th Cir.) (statements knowingly exposed to informants not protected)
- People v. Martin, 222 P.3d 331 (Colo. 2010) (standard of review for suppression rulings)