2021 COA 104
Colo. Ct. App.2021Background
- Police responded to a disturbance report that Stone had threatened her son N.M. with a knife; N.M. opened the door and expressly invited Officer Westbrook into the house.
- Inside, Westbrook observed cluttered, hazardous conditions and N.M. showed her a knife; she photographed the knife with her cell phone, then stepped outside to get her camera.
- Westbrook re-entered the house shortly thereafter (without reaching her car) as Stone arrived; other officers, a school resource officer (Engdahl), a child-protection caseworker (Bogle), and code enforcement later entered and photographed the interior.
- Stone moved to suppress evidence from the warrantless entries; the trial court ruled N.M. validly consented to Westbrook’s entry (and re-entry) but excluded evidence from Bogle, Cooke, and Miller as unlawful.
- At trial the prosecution introduced interior photographs (the court later concluded Cooke took them) and witness testimony; Stone was convicted and appealed, arguing unlawful search and erroneous admission of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of interior photographs | Prosecutor said Westbrook took photos of interior; photos were admissible | Photos were taken during unlawful entries and the prosecutor failed to show Westbrook took them | Court erred admitting interior photos but error was harmless beyond a reasonable doubt (photos cumulative of admissible testimony) |
| Validity of N.M.’s consent to entry | N.M., though a minor, voluntarily and validly consented and had actual authority as a resident/co-occupant | N.M. lacked legal authority because he was a minor; officer should have waited for Stone | N.M.’s consent was voluntary and he had actual authority to permit Westbrook’s entry |
| Scope of consent — did consent cover re-entry | Initial consent covers closely related, brief re-entry when purpose and time are continuous | Re-entry exceeded the scope of consent; officer should have sought a warrant after seeing conditions | Initial consent extended to Westbrook’s brief re-entry because it was closely related in time and purpose and was not revoked |
| Admission of Engdahl/Bogle testimony | Engdahl’s testimony described interior conditions and was cumulative; Bogle’s testimony was excluded | Stone contended Engdahl and Bogle entered illegally | Argument regarding Engdahl was undeveloped; any error would be harmless because testimony was cumulative; Bogle’s observations were excluded so issue moot |
Key Cases Cited
- Matlock v. United States, 415 U.S. 164 (co-occupant consent can validate a warrantless entry)
- Schneckloth v. Bustamonte, 412 U.S. 218 (voluntariness of consent determined under totality of the circumstances)
- Georgia v. Randolph, 547 U.S. 103 (present co-occupant’s express refusal defeats another occupant’s consent)
- Fernandez v. California, 571 U.S. 292 (objecting occupant who is removed loses right to veto another’s consent if not present for the threshold colloquy)
- Illinois v. Rodriguez, 497 U.S. 177 (apparent authority doctrine requires reasonable belief that third party has authority)
- Phillips v. State, 625 P.2d 816 (Alaska) (initial valid consent can extend to closely related subsequent entries)
- People v. Stock, 397 P.3d 386 (Colo.) (warrantless entries presumptively unreasonable; prosecution must prove an exception applies)
- People v. Berdahl, 440 P.3d 437 (Colo.) (consent is voluntary if the product of an essentially free and unconstrained choice)