People v. Stone

498 P.3d 666

2021 COA 104

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Adrienne Marie STONE, Defendant-Appellant.

Court of Appeals No. 19CA1772

Colorado Court of Appeals, Division II.

Announced August 5, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Scott Poland, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect individuals against unreasonable searches and seizures. Unless one of the exceptions to the search warrant requirement applies, law enforcement officers are barred from entering a person's home without a warrant. One of those exceptions applies when a person with authority over the home freely and voluntarily consents to the law enforcement officer's entry into the home. This case addresses the scope of that consent.

¶ 2 We consider in this case a novel issue of Colorado law — whether an occupant's consent to a law enforcement officer's entry into the occupant's home extends to the officer's re-entry into the home after the officer has briefly left it, where the initial entry and the re-entry are closely related in time and purpose, and the occupant did not revoke or limit the initial consent. We conclude that, under these circumstances, the occupant's initial consent extends to the officer's re-entry into the home.

¶ 3 Adrienne Marie Stone appeals her judgment of conviction based on her contention that the court erred by admitting evidence obtained during an illegal search of her house. We affirm.

I. Background Facts

A. The Officers’ Entry into Stone and N.M.’s House

¶ 4 Sergeant Betsy Westbrook of the Arvada Police Department responded to a report of a disturbance involving a seventeen-year-old, N.M., who said that Stone, his mother, had threatened him with a knife. Upon arriving at Stone and N.M.’s house, Westbrook spoke with N.M.’s sister, M.M., who was standing in front of the house. M.M. told Westbrook that, three days earlier, Stone had threatened N.M. with a knife. M.M. said that she was worried for N.M.’s safety because Stone was headed to the house, was very angry with N.M., and had told him to "pray for his life."

¶ 5 While speaking with M.M., Westbrook noticed that a young man holding a baby briefly opened the front door of the house and then closed it. Suspecting that the young man was N.M., Westbrook knocked on the door. N.M. opened the door, agreed to speak with Westbrook, and identified himself. Westbrook asked N.M. whether she could speak with him inside the house. N.M. responded affirmatively and expressly invited her inside.

¶ 6 Upon entering the house, Westbrook observed a stairway filled with boxes, clothing, and other items that "block[ed] free movement." In addition, she saw that the kitchen and living room were cluttered and that a young child was "crawling over" a baby gate set up between the living room and kitchen. Westbrook said that the child "could just climb up on different things and get over [the baby gate] easily."

¶ 7 N.M. led Westbrook into the kitchen, where he showed her a knife that he said Stone had used to threaten him. Westbrook took two photographs of the knife with her cell phone. She then left the house to retrieve her department-issued camera from her car so she could take better pictures of the interior of the house than she could with the cell phone.

¶ 8 As she stepped outside the house, Westbrook saw that Stone had arrived. Stone was upset that a police officer and M.M. were at the house. Stone also appeared to be yelling at a neighbor. Because the situation involving Stone was "rapidly unfolding," Westbrook re-entered the house without her camera.

¶ 9 Blaine Engdahl, a resource officer at N.M.’s school, also arrived at the house. After speaking briefly with M.M., Engdahl saw N.M. at the front door. He entered the house with N.M. and, like Westbrook, observed the clutter inside the house. Engdahl noted that "[t]he movement through the house was by pathways through the clutter," which extended "up the stairs to the second floor."

¶ 10 After Westbrook and Engdahl spoke with N.M. and saw the interior of the house, they returned outside, where Westbrook "made the decision to contact Jefferson County protection services" about the children. A caseworker from protection services, Misty Bogle, arrived and entered the house. Upon evaluating the condition of the house, Bogle concluded it was unfit for children and that the children needed to be removed from it.

¶ 11 While Bogle, Westbrook, and N.M. gathered the children's belongings, a code enforcement officer, Nicole Miller, and another police officer, Devoney Cooke, entered the house. Cooke photographed the interior of the house while she, Westbrook, and Miller walked through it together. Over the next couple of hours, other law enforcement officers also entered the house.

¶ 12 Stone was arrested and charged with one count of felony menacing, seven counts of child abuse, and one count of violation of a protection order that the neighbor had obtained against her. One of the counts of child abuse was later dismissed because N.M. was not under the age of sixteen at the time of the alleged abuse.

B. The Suppression Hearing and the Trial

¶ 13 Stone filed a pretrial motion to suppress evidence of the knife and the condition of the house, arguing that the "[l]aw enforcement [officers] conducted a warrantless search of [her] residence without probable cause and her consent," and that "all evidence obtain[ed] [from the search] should be suppressed."

¶ 14 The trial court conducted a hearing on the motion, at which Westbrook and Cooke testified. At the hearing, Westbrook described her interactions with N.M., the condition of the house, and the photographs she took of the knife. Westbrook did not testify that she took any photographs in the house other than those of the knife. In addition, Cooke testified about her observations when she walked through the house. Cooke said that, at Westbrook's direction, she photographed the interior of the house.

¶ 15 Following the hearing, the trial court entered an order finding that Westbrook's and Engdahl's initial entries into the house were lawful because N.M. voluntarily gave them consent to enter. It concluded, however, that Bogle's, Cooke's, and Miller's entries (as well as these of any other officials) violated Stone's Fourth Amendment rights. Thus, it excluded "all evidence secured through such actions ... includ[ing] all photographs taken during these entries."

¶ 16 At trial, Westbrook and Engdahl testified about their interactions with N.M. and the condition of the house. The jury found Stone guilty on all counts.

II. Analysis

A. Standard of Review

¶ 17 "Review of a trial court's suppression order presents ‘a mixed question of law and fact.’ " People v. Peluso , 2021 CO 16, ¶ 10, ––– P.3d ––––, –––– (quoting People v. Allen , 2019 CO 88, ¶ 13, 450 P.3d 724, 728 ). We review the trial court's legal conclusions de novo and defer to the trial court's findings of fact that are supported by competent evidence in the record. Id.

¶ 18 If we conclude that the trial court erred, we next determine whether the error is of constitutional dimension. The admission of evidence in violation of a defendant's Fourth Amendment rights is a constitutional error. See People v. Summitt , 132 P.3d 320, 323 (Colo. 2006). We must reverse if the trial court made a constitutional error unless "the evidence properly received against a defendant is so overwhelming that the constitutional violation was harmless beyond a reasonable doubt." Bartley v. People , 817 P.2d 1029, 1034 (Colo. 1991).

B. Westbrook's Entry and Re-Entry into the House

¶ 19 Stone first contends that the trial court erred by admitting Westbrook's testimony about the clutter in the house and the photographs she took during her initial entry and re-entry into the house. Before we address this argument on the merits, however, we turn to the parties’ disagreement regarding the specific photographs that the court held were inadmissible in its ruling on Stone's suppression motion.

1. The Photographs of the House

¶ 20 Stone argues that, at trial, the court erred by allowing the prosecutor to admit into evidence photographs that the court had ruled in its suppression order were inadmissible.

a. The Pre-Trial Colloquy

¶ 21 On the first day of trial, the prosecutor asked the court to clarify its earlier ruling regarding the admissibility of photographs taken during the search. Although Westbrook did not say at the suppression hearing that she had taken any photographs inside the house other than the photographs of the knife, the prosecutor told the court on the morning of trial that, during her initial entry and re-entry, Westbrook had also used her cell phone to take photographs of the interior of the house. The prosecutor said that any photographs Westbrook took of the interior of the house were similar to the photographs that Cooke took inside the house.

¶ 22 Based on the prosecutor's representation that Westbrook had taken photographs depicting the interior of the house, defense counsel did not object to the admission of the photographs. But the court nonetheless noted that Westbrook had not testified that she photographed the interior of the house. The court said to the prosecutor, "I heard [Westbrook] just as you heard her on the stand. I didn't get my camera. I took a photograph of the knife." The court said, "Maybe it was [Westbrook] just didn't explain it." The prosecutor responded, "I think I did not explain that correctly."

¶ 23 At trial, the court admitted photographs of the inside of the house, as well as photographs of the knife.

b. The Trial Court Erred by Admitting the Photographs of the Interior of the House

¶ 24 The transcript of the suppression hearing supports the court's original...