People v. CampbellPeople v. Campbell
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
January 25, 2018
2018COA5
No. 14CA2479, People v. Campbell — Constitutional Law —
A division of the court of appeals considers whеther a defendant has a reasonable expectation of privacy under the United States and Colorado Constitutions in global positioning system (GPS) data acquired from a defendant‘s ankle monitor. The division concludes that the defendant did not have a reasonable expectation of privacy when the GPS data was voluntarily given to law enforcement officials by the company that owned the ankle monitor. The division further concludes that the trial court did not err in admitting the GPS evidence without first conducting a hearing to assess its reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001). The division also rejects the defendant‘s contentions that he was seized and searched in violation of the
Accordingly, the division affirms the judgment of conviction.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TAUBMAN
Furman and Richman, JJ., concur
Announced January 25, 2018
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant
¶
I. Background
¶ 2 In late April 2012, the victim, J.P., called 911 to report an intruder in his home. He provided the 911 dispatcher with a description of the intruder and stated that he believed the suspect had driven away in a white Ford Explorer.
¶ 3 Officers stopped a white Ford Explorer about ten minutes later approximately three miles from the victim‘s home. Campbell was the driver and only occupant of the vehicle. Officers searched Campbell and found he was wearing an ankle monitor. A detective later requested and received the GPS data from the company owning the ankle monitor. The GPS data revealed that, within the month before J.P.‘s home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at J.P.‘s house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second degree burglary, and three counts of criminal mischief.
¶ 4 On appeal, Campbell asserts that the trial court erred by denying his motions (1) to suppress evidence obtained as a result of a seizure and subsequent search of his person; (2) to suppress the GPS data obtained from the ankle monitor; (3) for a hearing to assess the admissibility of the GPS data; and (4) to suppress J.P.‘s show-up identification. We disagree with all these contеntions.
II. Motion to Suppress Fruit of Seizure and Search
¶ 5 Campbell contends that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. He argues that the officers’ use of handcuffs and firearms transformed his seizure into an arrest unsupported by probable cause. In the alternative, Campbell asserts that, even if the officers’ use of force did not constitute an arrest, the officers nonetheless lacked reasonable suspicion to conduct an investigative detention. We conclude that the stop and subsequent search were lawful.
A. Additional Facts
¶ 6 Officer Dave Smidt responded to J.P.‘s 911 call. He wаs given the location of the alleged break-in and told that the suspect was a black male driving “an older model SUV, possibly a white Ford Explorer.” Less
¶ 7 After the vehicle stopped, Officer Smidt and another officer who had arrived in a separate car conducted a “felony traffic stop” — they drew their weapons and ordered Campbell to exit the car, put his hands up, walk backwards toward them, and kneel so that he could be placed in handcuffs. After conducting a pat-down of Campbell, the officers discovered he had an outstanding arrest warrant. He was then placed in the back of one of the police vehicles. He later made incriminating statements that he sought to suppress. Additionally, Campbell sought to suppress evidence of the officers’ discovery of the ankle monitor during the pat-down search.
¶ 8 In a bench ruling on the motion to suppress, the trial court stated in its findings of fact that Officer Smidt had followed Campbell for “a number of blocks” during which time “it looked like the driver was trying to get away from him.” The officer also observed Campbell commit traffic violations, specifically “failure to signal a turn” and potentially speeding by going “faster than [was] prudent in a residential neighborhood.” The trial court concluded that the officers had reasonable suspicion sufficient to stop Campbell, and that reasonable suspicion ripened into probable cause to arrest after J.P. identified Campbell as the intruder in a one-on-one showup conducted shortly after he was first stopped. As a result, the trial court denied Cаmpbell‘s motion to suppress.
B. Standajrd of Review
¶ 9 In reviewing a ruling on a motion to suppress, we defer to a trial court‘s findings of fact if they are supported by competent evidence in the record. People v. King, 16 P.3d 807, 812 (Colo. 2001). We review conclusions of law de novo. Id.
C. Applicable Law
¶ 10 The United States and Colorado Constitutions protect against unreasonable searches and seizures.
¶ 11 “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the
¶ 12 In the context of vehicle stops, “the decision to stop an automobilе is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996); see also Cherry, 119 P.3d at 1083. Although minor traffic infractions are classified as “civil matter[s]” under Colorado statute,
D. Analysis
¶ 13 We conclude that the officers constitutionally stopped Campbell on the basis of traffic violations witnessed by Officer Smidt. Further, the officers had probable cause to believe Campbell was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. We can affirm “on different grounds than those relied upon by the trial court” if those grounds are supported by “undisputed facts in the record.” People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006), as modified on denial of reh‘g (Jan. 16, 2007). Campbell has not disputed Officer Smidt‘s testimony with regard to the observed traffic violations, and does not assert on appeal that the trial court‘s findings of fact on this point were clearly erroneous.
¶ 14 The parties initially limited their arguments to whether the officers had reasonable suspicion to stop Campbell, which was the basis for the trial court‘s denial of Campbell‘s motion to suppress. We requested supplemental briefing from both parties on the issue of whether the violations observed by Officer Smidt gave rise to probable cause to stop and arrest Campbell.
¶ 15 Officer Smidt testified that he observed Campbell turn without signaling, a class A traffic infraction under Colorado law. See
¶ 16 In their supplemental brief, the People further argue that the officers had probable cause to believe that Campbell was eluding the officers in violation of
¶ 17 Because the officers had the right to arrest Campbell for vehicular eluding, they had the right to use reasonable force in effectuating the arrest, see
III. Motion to Suppress GPS Data
¶ 18 Campbell asserts that the trial court erred in denying his motion to suppress the GPS data оbtained from the ankle monitor. As an issue of first impression in Colorado, we conclude that, because Campbell did not have a reasonable expectation of privacy in the GPS location data generated by the ankle monitor under the United States or Colorado Constitutions, the trial court did not err.
A. Additional Facts
¶ 19 When Campbell was arrested, the officers found a monitor on his ankle, which Campbell said he was wearing at the request of a private bail bondsman. The officers did not remove the ankle monitor.
¶ 20 After Campbell‘s arrest, Detective George McGlynn contacted the GPS monitoring company, Interstate Monitoring Bureau Corporation, to request the data generated by the ankle monitor. Detective McGlynn did not seek a warrant for this GPS data. Rather, Interstate Monitoring voluntarily provided the information requested. As explained during trial, the documents provided by the monitoring company detailed Campbell‘s location
¶ 21 In its bench ruling, the trial court concluded that Campbell lacked standing to challenge the allegedly unconstitutional search of the GPS data. In its findings of fact, the trial court noted that the ankle monitor had been imposed “as a condition of bond, whether it [was] court ordered or ordered by the bondsman.” The trial court reasoned that Campbell was “not asserting his own rights” because, even if the bondsman might have an expectation of privacy in the records maintained by the monitoring company, Campbell did not. In light of its conclusion that Campbell lacked standing to contest the collection of the GPS data, the trial court denied his motion to suppress.
B. Standard of Review
¶ 22 In reviewing a ruling on a motion to suppress, we defer to a trial court‘s findings of fact if they are supported by competent evidence in the record. King, 16 P.3d at 812. We review conclusions of law de novo. Id.
C. Applicable Law
¶ 23 The constitutional protections against unreasonable searches and seizures are personal. See Alderman v. United States, 394 U.S. 165, 174 (1969) (”
¶ 24 While often referred to as an issue of standing, the Rakas Court recognized that this threshold question “belongs more properly under the heading of substantive
¶ 25 To assess whether a defendant had a reasonable expectation of privacy in the place searched, we turn to the two-prong test set forth in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). People v. Gutierrez, 222 P.3d 925, 932 (Colo. 2009). Under that test, “[a] defendant must have an actual expectation that the area or activity subjected to governmental intrusion would remain free of such intrusion and such an expectatiоn must be one that ‘society is prepared to recognize as reasonable.‘” Galvadon, 103 P.3d at 929 (quoting People v. Oates, 698 P.2d 811, 814 (Colo. 1985)).
¶ 26 In a line of cases, the United States Supreme Court has held that a person has no reasonable expectation of privacy in information he or she voluntarily discloses to a third party. See Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v. Miller, 425 U.S. 435, 443 (1976); Hoffa v. United States, 385 U.S. 293, 302 (1966). Thus, “the
¶ 27 The Colorado Supreme Court, however, has held that
D. Analysis
¶ 28 To begin, we address the first prong of Katz, under which a defendant must have an actual expectation of privacy in the place searched. Campbell urges that he maintained a subjective expectation that the GPS data generated by his ankle monitor would not be exposed or otherwise subjected to “public scrutiny.”
¶ 29 As support for this assertion, he notes that the monitoring company stored the data “in a web-based secured interface.” Further, Campbell asserts that, because he wore the ankle monitor at the request of a private bail bondsman, he believed the sole purpose of the GPS monitoring was to ensure that he did not abscond from the state and thereby fail to appear in court. He did not anticipate that the data would be used “to facilitate criminal investigations.” We assume without deciding that Campbell had an actual, subjective expectation of privacy in the GPS data. See Gutierrez, 222 P.3d at 932 (deferring to trial court‘s finding that the defendant had a subjective expectation of privacy in tax returns where tax preparer kept the records in a secure cabinet).
¶ 30 Nevertheless, we conclude under the second prong of Katz that any expectation of privacy in the GPS data was not “one that society is prepared to recognize as ‘reasonable.‘” Katz, 389 U.S. at 361 (Harlan, J., concurring). Campbell asserts that “other jurisdictions have held that GPS location data implicates an individual‘s privacy interest.” However, the cases he cites in support of that argument involved circumstances in which law enforcement agents surreptitiously installed GPS tracking devices on individuals’ vehicles without obtaining warrants. See, e.g., United States v. Jones, 565 U.S. 400 (2012). Campbell correctly asserts that those cases generally acknowledge the “unique attributes of GPS surveillance.” Id. at 415 (Sotomayor, J., concurring). Certainly, several courts have recognized that long-term GPS monitoring “generates a precise, comprehensive record of a person‘s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id.
¶ 31 However, the cases cited by Campbell do not address the precise issue here — whether a defendant has a reasonable expectation of privacy in GPS location data transmitted to and collected by a third party. Under the Supreme Court precedent, Campbell had no reasonable expectation of privacy in the GPS data because he voluntarily disclosed such data to a third party — his bondsman. Campbell was aware that his bondsman had access to the GPS location data to ensure that he did not leave the state while out on bond. In short, Campbell “t[ook] the risk, in revealing his affairs to another, that the information w[ould] be conveyed by that person to the Government.” Miller, 425 U.S. at 443. Thus, even if we assume he subjectively believed his GPS data would remain private, that expectation was not one society would be prepared to call reasonable.
¶ 32 We reach the same result even under the broader protections afforded by the Colorado Constitution. In Charnes v. DiGiacomo, the supreme court distinguished Miller, 425 U.S. 435, by noting that a bank customer does not truly voluntarily disclose information about his or her financial transactions
¶ 33 Accordingly, we conclude that Campbell cannot invoke the protections of either the
IV. Admissibility of GPS Data
¶ 34 Campbell next contends that the trial court erred in admitting the GPS evidence without first holding a hearing to assess its reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001). We disagree.
A. Additional Facts
¶ 35 Before trial, Campbell moved for a Shreck hearing on the admissibility of the GPS recоrds and any expert testimony relating to that data. Campbell asserted that a hearing was necessary to assess the reliability of the evidence because Interstate Monitoring was not obligated to test the ankle monitor devices or ensure their accuracy, and because GPS technology is “fairly new.”
¶ 36 In denying the motion for the Shreck hearing, the trial court stated that “GPS has been around for a long time.” The trial court therefore concluded that “this is not the type of new and novel scientific evidence” that must be vetted by a pretrial evidentiary hearing.
¶ 37 During trial, Bruce Derrick testified as an expert in GPS devices and technology. Derrick worked for SеcureAlert, the manufacturer of the ankle monitor Campbell was wearing when arrested. He testified how GPS devices communicate location data to a monitoring center, as well as the specific mechanics of the ankle monitor device. Defense counsel cross-examined Derrick at length on the accuracy of GPS location data.
B. Standard of Review
¶ 38 We review a trial court‘s evidentiary ruling for an abuse of discretion. People v. Veren, 140 P.3d 131, 136 (Colo. App. 2005). A trial court abuses its discretion when its ruling is “manifestly arbitrary, unreasonable, or unfair.” Id.
¶ 39 We review any error in denying a Shreck hearing under the nonconstitutional harmless error standard. People v. Wilson, 2013 COA 75, ¶ 24, 318 P.3d 538, 543. Under this standard, we will reverse only if the error “substantially influenced the vеrdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).
C. Applicable Law
¶ 40
¶ 41 Once a party requests that evidence be subjected to a Shreck analysis, the
¶ 42 Concerns about conflicting theories or the reliability of scientific principles go to the weight of the evidence, not its admissibility. See Estate of Ford v. Eicher, 250 P.3d 262, 269 (Colo. 2011). Such concerns “are adequately addressed by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id. (citing Shreck, 22 P.3d at 78).
D. Analysis
¶ 43 We conclude that the trial сourt did not abuse its discretion in denying Campbell‘s motion for a pretrial hearing on the admissibility of the GPS data. GPS technology is prevalent in modern society and widely regarded as reliable. “Courts routinely rely on GPS technology to supervise individuals on probation or supervised release, and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology‘s accuracy.” United States v. Brooks, 715 F.3d 1069, 1078 (8th Cir. 2013). Indeed, the concurrence in Jones acknowledged that GPS technology in modern cell phones “permit[s] more precise tracking” than previous technology allowed. Jones, 565 U.S. at 428 (Alito, J., concurring in the judgment). The overarching concern of any Shreck analysis is thе reliability and relevance of the scientific evidence, and we conclude, like other courts, that GPS evidence is sufficiently reliable to satisfy
¶ 44 We realize that Colorado‘s standard for the admissibility of scientific evidence differs from the test laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that other state rules of evidence may differ from
¶ 45 In any event, here, Derrick was properly qualified to testify as an expert on GPS technology. Campbell conducted voir dire of Derrick and thoroughly cross-examined him on the accuracy of GPS technology generally and the ankle monitor device specifically.
¶ 46 In light of the reliability of GPS evidence, we conclude that the trial court did not err in denying Campbell‘s motion for a pretrial Shreck hearing.
V. Motion to Suppress Identification
¶ 47 Campbell‘s final contention is that the trial court erred in denying his motion to suppress J.P.‘s identification. He asserts that, because the out-of-court identification procedure was unduly suggestive and unreliable, admission of J.P.‘s in-court identification violated his constitutional due process rights. We disagree.
A. Additional Facts
¶ 48 J.P. encountered Campbell in the stairway of his house. The victim had just woken up when he heard noises downstairs, and he was nоt wearing his contact lenses or eyeglasses. It was midmorning and the house was well lit. The two men were approximately
¶ 49 When officers stopped Campbell‘s car, the victim was still on the line to the 911 dispatcher. The dispatcher told him that officers had pulled over a vehicle matching the description he had given. Shortly after the 911 call ended, an officer took the victim to the location where Campbell had been pulled over.
¶ 50 When the victim got to the scene of Campbell‘s arrest, there were four or five police vehicles, two police motorcycles, and more than eight police officers present. There were no other people aside from Campbell and the victim. When the victim was driven to the scene, Campbell was seated in the backseat of a police vehicle in handcuffs. Campbell was the only black person at the scene.
¶ 51 The victim testified that he “knew almost immediately” that Campbell had been the man who broke intо his home. An officer told him to “slow down [and] make sure.” After another minute or so, the victim again positively identified Campbell. The victim was wearing eyeglasses during the show-up identification, though he later testified that his uncorrected vision was “not bad” and he merely preferred to have eyeglasses on.
¶ 52 The trial court found that the show-up procedure utilized by the officers here was suggestive. However, the trial court nonetheless denied Campbell‘s motion to suppress the out-of-court identification because it found that the identification was reliable under the totality of the circumstances.
B. Standard of Review
¶ 53 We review a trial court‘s detеrmination on the admissibility of an identification as a mixed question of fact and law, affording deference to the findings of fact and reviewing the legal conclusions de novo. See Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
¶ 54 We review preserved errors of constitutional dimension for constitutional error, meaning we will reverse unless the People show that the error was harmless beyond a reasonable doubt. Hagos, ¶ 11, 288 P.3d at 119.
C. Applicable Law
¶ 55 In considering a challenge to an out-of-court identification, a court must follow a two-step analysis. Bernal, 44 P.3d at 191. First, a defendant must prove that the identification procedure was unduly suggestive. See id. If the defendant shows the procedure was impermissibly suggestive, the burden then shifts to the People to show that the identification was nevertheless reliable under the totality of the circumstances. Id.
¶ 56 Under the second step of this analysis, the court may consider several factors, including “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness‘s degree of attention; (3) the accuracy of the witness‘s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.” Id. at 192. Ultimately, the suggestiveness of the identification procedure must be balanced against the indicia of reliability; provided that there is not a “very substantial likelihood of irreparable misidentification,” the identification is admissible. Id.; see also People v. Weller, 679 P.2d 1077, 1083 (Colo. 1984).
D. Analysis
¶ 57 The trial court found, Campbell argues, and the People do not contest that the show-up procedure utilized here was impermissibly suggestive. We agree. When the victim arrived at the scene of Campbell‘s arrest, Campbell was handcuffed in the back of a police vehicle surrounded by officers and he was the only black person present. Moreover, the dispatcher told the victim that officers had pulled over a vehicle matching his description. This show-up procedure was impermissibly suggestive. See generally Weller, 679 P.2d at 1083 (“One-on-one showups are not favored and tend to be suggestive.“).
¶ 58 Nevertheless, we conclude that the People met their burden of proving that the identification was reliable despite the suggestive
¶ 59 The third factor — the accuracy of the witness’ description — weighs less in favor of the People. The victim‘s description of the intruder was somewhat generic, and there were inconsistencies between the description provided to the 911 dispatcher and Campbell‘s actual appearance. However, looking to the fourth factor, the victim‘s confidence in the identification was high. He quickly confirmed that Campbell was the intruder once on the scene, and he later testified that he was ninety-five percent sure his identification was accurate. He was also “very positive” on the color, make, and model of the car that he saw driving away from his home. Finally, the time between the crime and confrontation was extremely brief. The identification occurred less than an hour after the victim first saw the intruder.
¶ 60 In sum, especially in light of the strength of the final two factors, we conclude that the identification was reliable despite the suggestiveness of the procedure. We cannot say that, given the totality of the circumstances, there was a “very substantial likelihood of irreparable misidentification.” Bernal, 44 P.3d at 192. As a result, we conclude the trial court did not err in denying the motion to suppress the identification.
VI. Conclusion
¶ 61 Accordingly, the judgment is affirmed.
JUDGE FURMAN and JUDGE RICHMAN concur.