*1 ' Bank eluded that the Federal Home Loan regu- preempt
Board’s do state regulations loans,
lation noted savings of federal
probable jurisdiction. After review statutory au- doctrine,
preemption
thority of to issue the the Board due-on-sale
regulation, “that concluded the Court scope of
due-on-sale is within the regulation authority Board’s under the HOLA pur-
consistent principal Act’s
poses.” It held that in promulgating then in- regulation due-on-sale the Board preempt conflicting
tended to restric- state
tions on practices. due-on-sale
The facts the issues of the case now
before significant us are in no manner dif- Federal,
ferent Fidelity supra. than those
We conclude that the Board’s due-on-sale
regulation precludes the application set
Western of the interest rate limitation
out in 38-30-165(l)(b), section C.R.S.1973
(1981 Supp.). judgment the Colorado Court
Appeals is affirmed. Colorado, PEOPLE State of
Plaintiff-Appellant, HOGAN, Defendant-Appellee.
Donald W. 82SA20, 82SA24, 82SA25,
Nos.
82SA26 and 82SA27. Colorado,
Supreme Court of
En Banc.
Aug. 16, 1982.
though we affirm the suppression ruling, we do so for reasons different from those upon relied by the district court. I.
At approximately 11:35 p. m. on April 1981, Officer Daniel Yount and three other officers of the Department Denver Police went to the defendant’s residence at 3806 W. Virginia Street in Denver in order to serve him with a him summons and to take station in connection municipal involving dis- ordinance violation suppres- by telephone. During turbance his sion testimony described this Officer Yount type procedure. of pickup as a routine In response court the questions from the officer testified as follows: “Q Now, you could why, tell me you went over to arrest Hogan, Mr. you get didn’t a warrant from the county court first to arrest him? Yes, “A ma’am. city It was on a ordi- violation, nance pickup had placed. been procedure in that down, Hogan case was to take Mr. serve him with a and return copy him to his home. home,
“Q his plan go Your was to city him of the ordinance vio- advise Atty., R. Dale Dist. 0. Otto Tooley, lation? Wunnicke, Moore, Atty., Asst. Dist. Brooke “A what we did at the exactly That’s David Atty., Chief Appellate Deputy Dist. time, ma’am. Denver, Purdy, Atty., Chief Dist. Deputy “Q To arrest him? for plaintiff-appellant. serve enough to long “A To detain him Walta, Gregory J. Public Colorado State him. Defender, Waldbaum, Deputy Deborah S. “Q with a To serve him Summons? Denver, defend- Defender, State Public “A Yes. ant-appellee.
“Q him back to the you Did have to take QUINN, Justice. police station to do that? interlocutory appeal by This is an headquar- him to “A We have to take from the They district court’s order have to be served with a ters. pressing evidence seized from the residence returned. That’s copy and then defendant, Al- procedure. Hogan.1 departmental Donald W. The court denied the suppressed defendant’s motion to 1. The evidence related to five cases against Although suppress photographic iden- filed ing the defendant. the hear- a statement and a suppress rulings on at issue in this the motion to was held on one These are not tification. cases, express pending subsequently appeal of applied no view on them. and we court its to the four other cases as well. All five cases have been consolidated for interlocutory appeal. of this “Q marijuana the remnants cigarettes, Then he is home? returned to his seeds residue, and a rifle mounted a wall. “A Yes ma’am.” Yount, According to en- accomplished Officer the defendant had try, Yount a criminal record handed have a dis- photograph driver’s license might containing received that he *3 bearing to the weapon in similar and the his home. For reasons defendant these point Rodney four name of At this Barringer. officers were his resi- dispatched to the for dence. officers dis- arrested the defendant and for a by separate telephone3 turbance When the officers arrived at the defend- violation, ordinance false giving informa- ant’s they residence the front knocked on Officer police tion a Yount to then officer.4 and, door. The door opened defendant the examined the rifle on the wall and unloaded name, when asked his himself identified two live rounds from the chamber. the eve- “Rodney Barringer.” Earlier secured the the de- officers house and told a ning photo- one of the officers viewed had companion fendant’s The defend- leave. graph bulletin Hogan police in a Donald taken police ant was to the station. and, based on this he the viewing, believed person defendant was the were seek- they At police the Yount tele- station Officer requested ing.2 The officers enter phoned Rodney explained who Barringer home permission. but the defendant refused containing that his wallet his driver’s identification, Upon being asked for license, credit cards some cash had and his wal- get stated that he would recently been stolen his locker at an from so, let. When turned he around to do prepared athletic club. an Officer Yount room, living officers purported- entered made recounting affidavit his observations ly protection. for their room be- own as well as the during defendant’s arrest lit, flash- dimly the officers shined their by Rodney conveyed to him A lights containing search ashtray and observed an Barringer.5 was issued ap- Hogan photograph Rodney 2. Barringer The reason the and Donald were not peared explained parties, in the bulletin was not Hogan the same and for arrested false during suppression hearing. information to a and officer [distur- by telephone. bance The arrest was made 3. Denver § Rev.Mun.Code 842.1. room, your living just in the which affiant the front affiant inside door. Your also ob- 4. Denver Rev.Mun.Code § 846.5-4. room, door[,] in the same to the served next 30/30 lever which was Marlin action rifle found affidavit, upon 5. The which the search loaded with to be two rounds. The rifle was issued, stated: as it reach of checked was within the the ar- City “Your affiant is officer and for the party dressing who in the liv- rested was still County approximate- of Denver. On 4-8-81 at ingroom. plain Your observed in affiant also ly affiant, p. your along 11:35 m. officers with view, ashtray livingroom anin located in the 46; Montoya David Archuleta Bernard 78- 80— comer[,] table the southwest several Cynthia responded OS and Brewer 78-23 marijuana cigarettes, or “roaches” remnants of Virginia 3806 W. [A]ve. for the seeds, marijuana marijuana cut and some serving Hogan (9-30-48) Donald Bruce for the and stems. left leaves Your affiant officers by Telephone. offense gan Mr. of Disturbance Ho- Montoya and Brewer to secure house and answered door and asked his Hogan City At Denver took Mr. Jail. Police by your replied name Rodney Barringer. affiant it he that was affiant, your Headquarters, ap- on 4-9-81 at related to Archuleta proximately phone your 12:30 a. m. contacted picture he affiant that had observed a Rodney Barringer R. Johnson Ar- Hogan party [S]t. of 7679 Donald stated and who he vada, your Barringer Mr. Barringer Co. related affiant photograph. looked like the p. Hogan 3-20-81 hours of that on between the 6:00 Donald then asked identi- for some p. person(s) away stepped m. 9:00 m. fication to show who he and unknown entered was and get from his at the door to locker Athletic located identification. Your Colorado Club stepped Wheatridge, affiant door, other officers inside the at Carr Co. and [S]t. removed Hogan cards, containing and Donald a wallet his wallet removed from several credit driv- stand, license, your gave papers along $20.00 which was a TV Rodney under ers and cash. reported Barringer. Barringer affiant ID for R. Mr. also related that he your looking involved, companies at the ID affiant determined the credit theft to card but of the defendant’s the search authorizing the course of their entry do not meet the para- drug dangerous drugs requirements home view doctrine. rifle, the articles a Marlin 30/30 phernalia, However, we disagree with of- the reason Barringer belonging to fered by suppres- the district court for the identity of establishing the documents during the sion of the various articles seized owner or the residence. occupant of home. subsequent search of the defendant’s These articles should not have by approxi- The warrant was executed out- pressed they on the were ground that early in the eight six to mately rather, but, side the of the warrant During 1981. morning April for the they reason were the fruit the officers observed premises search of the illegal observations at the defend- made numerous items which believed entry. ant’s Be- during illegal all, ap- seized been stolen. cause the all about record removes doubt items, ranging from proximately 76 *4 as suppressed the character of the evidence equipment, as to stereo and camera drugs affirm we illegality, fruit of the initial identifica- pieces of well as credit cards and ruling of the district court. By con- people. belonging tion to various serial num- ducting computer checks II. by contact- many bers on of the items that were People argue The previously articles ing the owners of various residence legitimately to in the defendant’s able stolen, were reported the officers illegal observed in view the they much of of verify the stolen character wall, and narcotics, the Marlin rifle on property seized. Barringer. the driver’s license As a result of the the defendant seizure disagree. We charged by in five cases York, and the commis- aggravated robbery6 (1980), controls hearing 63 L.Ed.2d sion of a crime violence.7 5.Ct. case. aspect motion to resolution of this testimony on the defendant’s our evidence, significantly that dissimilar press the court found facts not Under here, home held Supreme went to the defendant’s Court present those arrest, neither warrantless that into a home in entry effect a the warrantless justified arrest, exigent nor in the absence consent to make an order purpose, circumstances, into the home for that violates entry exigent or consent inside the officers’ observations and that to the United Amendment the Fourth entry. sig- the home were tainted The constitutional Constitution. States items not so suppressed The court then those turn not does nificance of the intrusion on the in the warrant specifically described or is to search purpose whether the much outside ground that these articles were of a arrest, character the intrusive but on therefore, and, could home: entry warrantless into the not warrant. lawfully be seized under the differ- point critical is that “[T]he ences in the intrusiveness of entries agree
We
with the court’s
merely
search and entries to
are
entry
officers’
into the defendant’s
arrest
and,
an
inside
ones
degree
made
effect
arrest
rather than kind.
therefore,
was in
violation of
two
share
intrusions
this fundamental
requirement of the Fourth Amendment.
characteristic: the
of the entrance
breach
Consequently, the officers’ observations
to an individual’s home. The Fourth
18-4-302(1),
(1978 Repl.
C.R.S.1973
6. Section
police.
not to the
Your affiant advised Mr.
8).
Barringer
report
Vol.
to make a
of the theft as soon
possible.
Your affiant also had occassion
[Pjolice Department
16-11-309,
(1978
to examine
Repl.
Denver
[sic]
7. Section
C.R.S.1973
Hogan
8).
records which showed that Donald
Vol.
felony
previous
3-10-71.”
two
convictions since
no reason here
protects
pri-
depart
Amendment
steady
the individual’s
from the
vacy in a variety
settings.
In none is
previously
course
followed in this area of
privacy
clearly
the zone of
more
defined
the law.
unambiguous
than when
bounded
The district court found that
physical dimensions of an individual’s
police officers went
to the defendant’s
home —a zone that
in clear
finds its roots
home for the
arresting him with
specific
constitutional
terms:
‘The
warrant,
out a
and the evidence demon
right of
people
to be secure in their
strates their
into the
home was
. . . houses . ..
shall not be violated.’
purpose.
suppres
furtherance of this
That
language unequivocally establishes
sion testimony of
Yount establishes
the proposition
very
core
‘[a]t
[of
quite clearly
did
mere
that the officers
the Fourth
right
stands
Amendment]
ly intend to serve
with a
the defendant
of a man to retreat
into his own home
Rather, they
summons at
in
doorstep.
his
and there be free from
gov-
unreasonable
tended to take him to the stationhouse
ernmental
intrusion.’ Silverman v. Unit-
routinely
where he would be served and
States,
505, 511,
ed
365 U.S.
81 S.Ct.
processed
Although the
before his release.
683, 5 L.Ed.2d
apply
734. In terms that
to enter the
permission
refused
equally to seizures of property and to
home, the officers nonetheless crossed the
persons,
seizures of
the Fourth Amend-
threshold in
position
order to
themselves
ment has drawn a firm line at the en-
where
could control his actions.
trance to the house.
exigent
Absent
cir-
*5
entry
our view this
only
serves
to confirm
cumstances,
may
threshold
not rea-
the officers’ intent
to take the defendant
sonably be crossed without a warrant.”
custody
into
at
time. The Fourth
589-90,
1381-82,
suppressed a defendant’s confession as the York, supra; People, supra. McCall v. fruit of the illegal arrest inside defendant’s procedure To call this but a war- anything his home. pointed We out that even entry effecting rantless for Payton prohibited Colorado law has case and, an arrest flies in facts the face of the entering private officers from resi- effect, require would reduce the warrant dence to effect an arrest in the absence of ment nullity. to a some well-defined exception to warrant requirement, exigent cir- such as consent or The remaining is whether consideration See, Moreno, cumstances. e.g., People v. entry warrantless into 488, 176 Colo. 491 (1971). P.2d 575 There is home can justified be by one of the limited Payton challenge 8. armed robberies in involved a 1971. to a New York Riddick had been authorizing police statute by to enter a identified the two victims in June 1973 and private residence without a warrant to make a during the ary learned of his address Janu- felony separate routine arrest. Two cases were 1974. About noon on March 14 a detective police, before the In Court. one case the after and three other officers knocked on the door of days investigation, two had assembled suffi- young the Riddick’s home. When his son 14, January 1970, cient evidence on door, establish opened the the officers could see Riddick probable Payton cause that Theodore had mur- sitting They in bed covered a sheet. entered manager gas days dered the of a station two placed the house and him under arrest. Before Payton’s earlier. Six officers went permitting dress, they opened him a chest of apartment January 15, 1970, to arrest him. weapons drawers close to the bed in search of knocking on the door without success drug paraphernalia. and found narcotics and they forcibly apartment entered the and found subsequently Riddick was indicted on the nar- present no one inside. In view a 30 charge cotics and was convicted. Because no casing caliber shell later admit- was seized and arrest warrants were obtained in either of the Payton’s ted at murder trial. was con- cases, the convictions were reversed and victed. The other case involved Riddick Obie proceedings. cases remanded for further 14, 1974, who was arrested on March two
331 wallet, which is not exceptions requirement. inherently suspicious or The People dispute do not that the defend- unreasonable behavior in any way.” Given ant entry. refused consent for the us, the state of the record before we cannot critical consideration is the offi- whether say that the trial court’s conclusion on justified cers’ apprehension danger exigent issue of circumstances is unwar- to secure entry warrantless into the home ranted. safety.
their own
Moreover, we cannot
eyes
close our
to the
implications
doc
which a
exigent
contrary ruling might
have
trine runs counter to Fourth Amendment
on Fourth Amendment
Giv-
doctrine.
and,
reason,
guarantees
for this
en
went
finding
the court’s
that the officers
to the
war-
exception
strictly
must be
circumscribed
defendant’s home to effect a
home,
exigencies
justify
argua-
which
its initia
rantless
arrest inside
385, 393,
Arizona,
have its
Mincey
emergency necessarily
tion.
v.
437
ble
would
U.S.
2408, 2413,
290,
presence
98
source in the officers’
at the home
S.Ct.
57 L.Ed.2d
300
(1978).
supra,
disregard
requirement.
we
of the warrant
People,
McCall v.
stat
ed that exigent
generally
purported exigency arising directly
If a
have
from a violation of the
require-
been limited to those bona fide situa
legitimately
legal
tions which
swift
ment can serve as the
basis for the
require
action,
home,
such as
pursuit
fleeing
the hot
of a
officers’ warrantless
into the
294,
suspect,
requirement
Warden v.
then the warrant
no
Hayden, 387 U.S.
87
serves
(1967);
pri-
function
meaningful
S.Ct.
to establish the existence of facts which III. render the entry truly impera warrantless only exclusionary rule Arizona, E.g., supra; tive. v. Vale Mincey the admission of ac illegally bars evidence Louisiana, 30, 1969, v. 399 90 U.S. S.Ct. 26 quired but prohibits government also the (1970); L.Ed.2d 409 v. People, supra. McCall utilizing from evidence which is the direct
It was the
prerogative
district court’s
product
illegality.
fruit or
of the initial
States,
determine from
E.g., Wong
the evidence whether the
371
Sun v. United
U.S.
prosecution proved
exigent 471,
407,
(1963);
the existence of
83
9
441
S.Ct.
L.Ed.2d
States,
justifying
the warrantless Silverthorne Lumber Co. v. United
entry
182,
into the defendant’s
Here
319
home.
the
251
40
64 L.Ed.
U.S.
S.Ct.
People
trial court
of cir-
totality
found under the
v.
(1920);
People, supra;
v.
McCall
cumstances
Lowe,
(Colo.1980).
that
the
were not con-
Because
333
police
it is true that
exigencies
ordinance. While
lored to the
presented.
Ter-
See
and could
an arrest warrant
did not have
ry
Ohio,
1,
v.
1868,
392
88
U.S.
S.Ct.
20
cooper-
compelled
have
the defendant’s
not
(1968).
L.Ed.2d 889
also Adams v.
See
Wil-
reason,
ation,
I
no
under Fourth
see
liams,
143,
1921,
407
32
U.S.
92 S.Ct.
why
police
could
principles,
Amendment
(1972).
612
L.Ed.2d
consent
not seek to obtain the defendant’s
house, the
Once inside the
officers’ obser-
ser-
station and receive
go
permissible
plain
vations were
under the
v.
vice of the summons. See United States
requires
view doctrine. Plain view
1870,
544,
64
Mendenhall,
100
446
S.Ct.
U.S.
entry,
discovery
valid
the inadvertent
Thus,
did
(1980).
L.Ed.2d 497
evidence,
probable
cause to believe the
act
the defendant’s
improperly
going
in
articles observed are connected to criminal
home.
302
People
behavior.
v.
P.2d
Hearty, 644
door,
Once at
the actions
the defendant’s
(Colo.1982);
Franklin,
People v.
640 P.2d
defendant,
of the
with facts within
along
226 (Colo.1982).
officers,
suf-
provided
knowledge
Here
limited
permissible
was a
exigencies
ficient
to allow the officers
Thus,
response
presented.
to the situation
cross the
threshold into defendant’s
entry requirement
valid
was fulfilled.
without
a warrant.
v. New
See
illegal drugs
observation of the
York,
1371,
445
100
63
U.S.
S.Ct.
ashtray
in the
room
inadvertent.
(1980);
Bustam,
L.Ed.2d 639
People v.
641
The fact that
used their flash-
Williams,
P.2d
(Colo.1982); People
968
v.
lights
change
does not
the result since the
(Colo.1980).
the exclusionary rule. It “a judge-made
rule crafted to enforce constitutional re- quirements, justified in search
context only its deterrence of future
police misconduct.” United States v. Wil- liams, (5th 622 F.2d 841-42 1980). Cir. Hull, Ronald W. HULL and Delores A. The majority opinion applies a rule of Plaintiffs-Appellants, exclusion which will have or little no effect on police here, when, conduct. For believe dangerous pre- themselves in a or CORPORATION, BOWEST carious position, they prevent will act Defendant-Appellee. harm to themselves. If at a later time No. 79CA0756. judgment is called into and evi- question excluded, dence I do not this will believe Appeals, Colorado Court of deter a response similar the future. A Div. III. good faith dangerousness mistake about the March 1982. exigencies which at moment existed 1982. Rehearing time April should not Denied require exclusion evidence found in the search. July Certiorari Granted 1982. I am persuaded expressed that the views by a majority the court in United States
v. Williams, supra, concerning the exclu-
sionary good rule the reasonable faith
exception thereto are sound and should be
applied in this case. the court There said: