PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry Ray PORTER, Defendant-Appellee.
No. 86SA445.
Supreme Court of Colorado, En Banc.
Sept. 14, 1987.
742 P.2d 922
The majority‘s construction of section
Douglass F. Primavera, Dist. Atty., Alamosa, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, Bruce Boreson, Deputy State Public Defender, Alamosa, for defendant-appellee.
ROVIRA, Justice.
Prior to the trial of Larry Porter, the defendant, his confession was suppressed by the trial court. The basis for the suppression order was that the federal agents interrogating the defendant violated
I.
On June 4, 1986, the Federal Bureau of Investigation (FBI) in Austin, Texas, was alerted by the Colorado office of the FBI regarding a kidnapping and extortion attempt. Telephone calls demanding ransom for Kenneth Dabney of Creede, Colorado, had been received by his aunt and uncle in Creede and had been traced to Austin. One call ordered the aunt to go to a motel in Austin by 10:00 p.m. on the evening of June 4, with $324,000 in ransom money.
Dabney‘s aunt did not go to Austin. Instead, by an arrangement between the motel and the FBI, calls asking for the aunt
The defendant was taken to the FBI office in Austin, arriving there about 11:00 p.m. He was again advised of his Miranda rights and agreed to talk to FBI agents. He signed the written Miranda waiver form.
The defendant stated that he and Kenneth Dabney conspired together to deceive Dabney‘s aunt into paying the ransom, but that he did not know where Dabney was and had no way to get in touch with him. The FBI agents did not believe, with more than $300,000 in ransom demanded, the two co-conspirators would have no way to reestablish contact. Accordingly, the agents doubted the defendant‘s story and were still concerned with Dabney‘s safety.
At approximately 12:30 a.m. on June 5, 1986, the defendant was asked to take a polygraph test to confirm his story and verify that Dabney was not in danger. He agreed. The nearest polygrapher was 100 hundred miles away in San Antonio, so the defendant was placed in the county jail until the examiner arrived later that morning.
The defendant was picked up at about 8:30 a.m. and taken to the FBI office. The polygrapher arrived at about 10:00 a.m., and the examination began at 10:30 a.m. Prior to the examination, the defendant was again advised of his Miranda rights and given the questions he would be asked.
The defendant thereupon confessed, stating he had killed Dabney while attempting to kidnap him and that he had concealed the body in Colorado. The confession was reduced to writing. The defendant read it, made some corrections which he initialed, initialed each page, and then signed the last page about 3:30 p.m. He was then taken before a federal magistrate, where he was advised of his rights pursuant to
The defendant was subsequently charged in Colorado with murder, kidnapping, extortion, and a crime of violence. The defendant moved to suppress his statements and confession on numerous grounds, including violation of his right against self-incrimination under the Colorado and United States Constitutions and violation of Rule 5 of the Colorado and Federal Rules of Criminal Procedure. The trial court found that the FBI agents fully advised the defendant of his Miranda rights on at least four occasions before his confession was obtained, and that all of the defendant‘s statements were made after a voluntary, knowing, and intelligent waiver of his Miranda rights. Further, that under the totality of the circumstances, the statements were knowingly, intelligently, and voluntarily made.1 Accordingly, none of the defendant‘s constitutional rights were violated.
The court found, however, that the defendant was not taken before a magistrate as soon as possible. Instead, because of the FBI agents’ concern for the victim‘s safety, they delayed until the polygraph examination could be performed. The court found this was “unnecessary delay” under
Based on this analysis, the trial court suppressed all statements made during the polygraph test and afterward, including the written confession. The People appeal, arguing that state, not federal, law applies and that
II.
A.
As a threshold issue, we agree with the trial court and the defendant that
B.
The People argue that the trial court incorrectly applied the federal law and that a delay necessary to safeguard an innocent victim is not “unnecessary.” The defendant responds that the trial court correctly ruled that the FBI agents violated
The situation presented by this case—whether evidence obtained by nonconstitutional violation in another jurisdiction is to be admitted in a criminal proceeding in the forum jurisdiction—is rare but not unknown. Some courts have applied a conflicts of law analysis in resolving this issue. E.g., People v. Saiken, 49 Ill. 2d 504, 275 N.E.2d 381 (1971), cert. denied, 405 U.S. 1066 (1972); Burge v. State, 443 S.W.2d 720 (Tex.Crim.App.), cert. denied, 396 U.S. 934 (1969). These courts analyze the issue as if it were a civil case and apply the choice of law method of the forum state to determine whether the law of the forum state or the situs state should be followed, and what sanctions are to be used if the appropriate law is violated.
However, this approach has been criticized. Both courts and commentators have concluded that it is preferable to use an exclusionary rule analysis rather than the traditional conflicts of law approach to determine the admissibility of evidence in the forum state which is obtained in another jurisdiction. Pooley v. State, 705 P.2d 1293, 1303 (Alaska App.1985); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738, 748 (1979); State v. Lucas, 372 N.W.2d 731 (Minn.1985); W. LaFave, Search and Seizure § 1.5(c) at 116-117 (1987) (suggesting the correct inquiry is “whether the [forum] courts should attempt to deter [situs] police....“); W. Theis, Choice of Law and the Administration of the Exclusionary Rule in Criminal Cases, 44 Tenn.L.Rev. 1043, 1064 (1977) (states must determine whether to apply the exclusionary rule for statutory violations of federal law); R. Tullis & L. Ludlow, Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the Exclusionary Rule, 10 U.S.F.L. Rev. 67, 88 (1975) (indicating that exclusionary rule analysis is preferable to choice of law analysis). The exclusionary rule analysis is more appropriate even if the action violated the laws of both jurisdictions. See W. LaFave, Search and Seizure § 1.5(c) at 116-117 (1987). We agree that, in determining whether evidence obtained in violation of the statutes or rules of criminal procedure of another jurisdiction should be suppressed, an exclusionary rule analysis should be followed.
This analysis is consistent with our decision in People v. Robinson, 192 Colo. 48, 556 P.2d 466 (1976). In Robinson, the defendant was arrested in Missouri for Missouri crimes, as well as being a fugitive from Colorado. He was held seven days without presentment to a magistrate, at which time he was interviewed by officers from Colorado and confessed. On appeal, he argued that his detention violated both
We affirmed his conviction. As noted in part II.A. of this opinion, we held that
C.
In People v. Ressin, 620 P.2d 717 (1980), we adopted the analysis utilized in United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), in determining whether to extend the exclusionary rule to probation revocation proceedings. The Calandra analysis involves a balancing of the benefit of the exclusionary rule (prime purpose is deterrence of police misconduct) against the costs to society (suppression of probative evidence). We concluded that the per se extension of the rule to such proceedings would furnish little deterrence to law enforcement officers and any incidental benefits wrought by such an approach would be outweighed by the detrimental effect upon society‘s interest in the supervision and rehabilitation of probationers.4
This analysis has resulted, in several contexts, in a determination that the deterrent value of excluding evidence is too minimal to justify the cost to society of excluding probative evidence. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984) (exclusionary rule inapplicable to deportation proceedings); United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980) (exclusionary rule not applied to evidence used at trial to impeach credibility); United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976) (exclusionary rule not extended to civil proceedings commenced against a defendant by a different sovereign); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (exclusionary rule inapplicable to grand jury proceedings); People v. Wolf, 635 P.2d 213 (Colo.1981) (exclusionary rule inapplicable for statutory violation; however, where police act in willful disobedience of law, court may use supervisory power to suppress evidence).
In cases such as this one, the officers involved were investigating crimes of another jurisdiction in that other jurisdiction. Those officers had taken an oath to uphold the laws of that jurisdiction. If they fail to follow the laws of that jurisdiction, they run the risk that evidence obtained will be excluded in the cases they investigate. If that is not enough to deter them from misconduct, it does not seem likely that the slight increment in deterrence achieved by suppressing the evidence in another jurisdiction will have any effect. See Calandra (if threat of inadmissibility at trial not enough to deter officers, added increment of inadmissibility in grand jury proceedings will make no difference, therefore, exclusionary rule inapplicable to those proceedings); People v. Orlosky, 40 Cal.App.3d 935, 115 Cal.Rptr. 598 (1974) (California court will not exclude evidence obtained by statutory misconduct in Indiana “merely to add a wrist slap to a foreign police officer, whose interest in a California prosecution must be relatively remote“); W. LaFave & J. Israel, Criminal Procedure § 3.1(e) at 87 (1985) (when violation not of fourth amendment dimension, “courts do not utilize the exclusionary rule in such circumstances, and rightly so; the prospect of deterrence is remote ... and there has been no profit from the wrongdoing attrib-
In People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738 (1979), the California Supreme Court considered the deterrent effect of excluding evidence obtained by federal agents in Pennsylvania which, although seized legally under both federal and Pennsylvania law, would have been regarded as being obtained in violation of the California Constitution if obtained in California.
[The goal of deterrence] would obviously not be served by exclusion of the evidence in question, for no California law enforcement personnel participated in the seizure of the records from the telephone company in Philadelphia, and since the seizure was not illegal where it occurred, exclusion would serve no deterrent effect in either jurisdiction.6
On the other hand, the cost to society of suppressing the statements in this case will be quite high. The defendant‘s confession is likely to have significant probative value in determining whether or not he committed the crimes with which he is charged.
Our employment of an exclusionary rule analysis in resolving this case is not contrary to People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980). In Heintze, we were concerned with a violation of
In this case, however, the benefits of the exclusionary rule do not outweigh the cost to society of suppression. Suppressing the confession would have no effect on FBI officers investigating a federal crime in Texas, but would greatly affect the jury‘s ability to determine the defendant‘s guilt in this matter.
The order of the trial court is reversed.
ERICKSON, J., specially concurs in the result.
VOLLACK, J., joins in the special concurrence.
I agree with the majority‘s result and the conclusion that suppression of the defendant‘s confession is unwarranted. I write separately because I disagree with the majority‘s approach, which requires balancing on a case-by-case basis to determine the applicability of the exclusionary rule. Since the defendant‘s confession was not obtained in violation of the United States or Colorado Constitutions, it is unnecessary for us to employ a judicial balancing test to decide this case and to further confuse the law relating to the exclusionary rule.
The district court correctly held that the defendant was properly advised of his Miranda rights and that he voluntarily confessed after an effective waiver of these rights. Since
Absent a denial of constitutional rights, the exclusionary rule will not bar evidence acquired in violation of the laws of another jurisdiction from being admitted in the forum jurisdiction. People v. Price, 54 N.Y.2d 557, 431 N.E.2d 267, 446 N.Y.S.2d 906 (1981) (possible violation of California law in constitutional narcotics search was irrelevant to the legality of a search warrant issued in New York based on evidence obtained in the search); Burge v. State, 443 S.W.2d 720 (Tex.Crim.) (violation of Oklahoma law in acquiring evidence did not bar evidence from being admitted in Texas court), cert. denied, 396 U.S. 934 (1969); see Elkins v. United States, 364 U.S. 206, 223-24 (1960) (“In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.“); United States v. Mitchell, 783 F.2d 971, 973 (10th Cir.) (in addressing the legality of a search by state officers which resulted in a United States district court conviction for drug possession the court of appeals stated “we need not consider whether the Oklahoma statute was satisfied or not.... The issue in this case is one under the fourth amendment and the exclusion of evidence would only be warranted if there were a violation of the Constitution of the United States“) (footnote omitted), cert. denied, ___ U.S. ___, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986); United States v. Bedford, 519 F.2d 650, 653-54 (3d Cir.1975) (state court decision that search warrant violated state law irrelevant to validity of warrant in federal court), cert. denied, 424 U.S. 917 (1976). By adopting a judicial balancing test, the majority has created unnecessary uncertainty regarding the application of the exclusionary rule. See New Jersey v. T.L.O., 469 U.S. 325, 369-70, 105 S.Ct. 733, 758, 83 L.Ed.2d 720 (1985) (Brennan, J., joined by Marshall, J., concurring in part and dissenting in part) (in response to the majority‘s application of a judicial balancing test to define the fourth amendment standard of reasonableness for searches by school officials, Justice Brennan stated: “All of these ‘balancing tests’ amount to brief nods by the Court in the direction of a neutral utilitarian calculus while the Court in fact engages in an unan-
I am authorized to say that VOLLACK, J., joins in this special concurrence.
Notes
An officer making an arrest under a warrant or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate.... [who shall] proceed in accordance with the applicable subdivisions of this title.
If a peace officer or any other person makes an arrest, whether with or without a warrant, the arrested person shall be taken without unnecessary delay before the nearest available county or district judge.