People v. Harris , 12 Brief Times Rptr. 1017 ( 1988 )

ROVIRA, Justice,

dissenting:

I respectfully dissent from Part II.B. of the majority opinion, which holds that the statements Harris voluntarily made while he was in lawful custody for execution of a Crim.P. 41.1 order should have been suppressed.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Supreme Court held that statements obtained in violation of the fourth amendment, even if made voluntarily for purposes of the fifth amendment, are admissible only if the making of the statements was “sufficiently an act of free will to purge the primary taint” of the illegal seizure. 422 U.S. at 602, 95 S.Ct. at 2261 (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)). The Court explained that:

Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited.

422 U.S. at 603, 95 S.Ct. at 2261 (emphasis in original).

The Court declined, however, to adopt a per se rule that statements made following an illegal arrest must be excluded. Instead, the Court announced the following test:

The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive_ The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant.

422 U.S. at 603-04, 95 S.Ct. at 2261-62.

The giving of Miranda warnings, under the circumstances of this case, suggests rather strongly that Harris’s decision to talk with DeLaria was the product of his free will.

Detective DeLaria testified at the suppression hearing that after serving Harris with the Crim.P. 41.1 order, he transported Harris to the hospital where several tests were to be performed. On the way to the hospital, he read the proper Miranda warnings to Harris and emphasized that even if Harris chose to waive his rights to remain silent and to have an attorney present during questioning, he could decline to answer any question DeLaria propounded. In addition, DeLaria explained that once the questioning began, Harris could terminate the interview completely if he desired and that he could request an attorney before continuing to answer questions. After being so informed, Harris agreed to talk with DeLaria, at which point DeLaria informed Harris that he was investigating a sexual assault that took place on the University of Colorado campus and that Harris had been identified as having been near the scene of the crime at about the time the crime was committed. Harris then explained that he had been drinking that evening and was “out running it off” because his wife did not like him to drink.

It is clear from the record before us that Harris understood his rights to remain silent and to have an attorney present during questioning, and that with full knowledge of these rights he voluntarily chose not to exercise them but instead to cooperate with DeLaria. We therefore need not be concerned that the responses Harris gave might have been unreliable as the product of duress, or that Harris was unaware of the nature of the investigation DeLaria was conducting. Harris’s statements were not spontaneous—in which ease it is clear they would have been admissible—but neither do they reflect an improvident or ill-considered decision to cooperate solely because Harris was in the lawful custody of a police officer.

Brown also requires that the court consider whether any intervening events or the passage of time between the defendant’s arrest and his making of the statements might have severed the causal connection between the arrest and the subsequent making of the statements. I agree with the majority’s view that no notable events interrupted DeLaria’s questioning of Harris and that Harris made the statements shortly after the questioning began.

Finally, we must consider “particularly, the purpose and flagrancy of the official misconduct.” The Court’s emphasis of that factor is especially important where, as here, we are not concerned with determining whether a constitutional violation has occurred, but only with whether we should suppress statements a defendant concededly has made voluntarily after a knowing and intelligent waiver of his right to remain silent.

In those cases suppressing statements for violations of the fourth amendment, both the United States Supreme Court and this court have found clearly illegal police misconduct warranting the sanction of the exclusionary rule. In Brown v. Illinois itself, the defendant arrived at the back door of his apartment to see a stranger pointing a gun at him from inside the apartment, which the stranger—a Chicago policeman—had entered and searched illegally. Another officer, also brandishing his weapon, approached Brown from behind and informed Brown that he was under arrest. In condemning the illegal search and seizure, and in suppressing statements Brown subsequently made while in the illegal custody of the police, the Court concluded that “[t]he manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.” 422 U.S. at 605, 95 S.Ct. at 2262.

In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and in Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), police acting on the uncorroborated tips of informants took defendants into custody without probable cause for the purpose of interrogating them. The Court held that statements each made should have been suppressed, and in discussing the police misconduct the Court emphasized that the police action “had a ‘quality of purposefulness’ in that it was an ‘expedition for evidence’ admittedly undertaken ‘in the hope that something might turn up.’ ” Dunaway, 442 U.S. at 218, 99 S.Ct. at 2259 (quoting Brown, 422 U.S. at 605, 95 S.Ct. at 2262). See also Taylor, 457 U.S. at 693, 102 S.Ct. at 2668.

Finally, in People v. McCall, 623 P.2d 397 (Colo.1981), police officers investigating a possible murder discussed “how the three suspects might be made to incriminate themselves before they were taken into custody.” 623 P.2d at 399. The officers then appeared at McCall’s house where—after the officers overcame McCall’s parents’ objections to the questioning of their son by telling the parents that McCall was not a suspect and was not under arrest—the officers separated McCall from his parents and interrogated him. We held that the statements McCall made and evidence derived from those statements should have been suppressed, and we explained:

[T]he evidence depicts a deliberate choice on the part of law enforcement officials to exercise deception in gaining entry into the defendant’s home and to employ trickery in their efforts to extract an incriminating statement from him. This type of official misconduct belies any legitimate claim to exemption from the sanctions of the exclusionary rule.

623 P.2d at 404.

That DeLaria should not have questioned Harris is mandated by decisions of the United States Supreme Court that are controlling. The question now, however, is the extent to which DeLaria’s actions demand the sanction of suppression so as to deter future violations of this sort. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974) (“[t]he [exclusionary] rule is calculated to prevent, not to repair”) (quoting Elkins v. United States, 364 U.S 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (I960)).

The majority opinion concludes that the district court erred in finding no misconduct on the part of DeLaria in questioning Harris during the execution of the Crim.P. 41.1 order.¹ In support of that finding, the majority suggests that the Crim.P. 41.1 order was utilized as part of some improper plot to detain Harris and to exploit that custody to get Harris to make incriminating statements. Close attention to the record, however, reveals nothing more sinister than a diligent detective utilizing an opportunity to question a potential witness or suspect who apparently was willing to provide what information he could.

The majority finds that:

Although the Crim. P. 41.1 order was procured for a legitimate purpose, the court of appeals correctly held that the police officer’s execution of the Crim.P. 41.1 order was a ruse intended to put the defendant in a position where he might talk.

At 657 (emphasis added).

With respect to the procurement of the order, the record demonstrates that DeLa-ria participated only tangentially—if at all—in discussions leading to the decision to obtain the order. Neither Gary Arai, the detective who applied to the court for the order and who provided the affidavit in support thereof, nor the district attorney who reviewed the affidavit prior to its submission, suggested that DeLaria question the defendant while executing the order. In addition, it cannot be inferred from the record that either of the two intended or expected DeLaria to question Harris. In short, the trial court’s finding that the procurement of the order was not part of any ruse to get Harris to talk is the only conclusion supported by the record.

The majority then focuses its attention on DeLaria’s subjective mental state in executing the order and concludes, apparently, that because DeLaria intended to question Harris when he executed the order, he must have executed the order as a “ruse” to question Harris under coercive circumstances. As noted above, the purported ruse could not have included the perfectly proper procurement of the order in the first place. Thus it must have been DeLa-ria’s intent to question Harris alone that constituted the improper “plan” he was carrying out.

I cannot agree with the majority’s interpretation of the evidence for two reasons. First, apart from the simple fact that De-Laria intended to question Harris while executing the order, there is no evidence that DeLaria would not have questioned him but for the order or that DeLaria delayed his investigation until he could take advantage of the order to extract incriminating statements from Harris. In fact, DeLaria testified that he did not personally consider Harris a suspect in the case but, rather, that he thought Harris “could have been a witness too.” And, as the majority notes, DeLaria did not pursue the questioning to the point of asking whether Harris committed the crime: DeLaria was conducting a routine background interview to help further his investigation of the crime in question. The majority’s construal of DeLaria’s testimony as suggesting anything more than that—and especially in finding among these facts evidence of some nefarious ruse—reads too much into DeLa-ria’s words.

Second, to find that DeLaria’s intent to question Harris during the execution of the order is itself substantial police misconduct renders the fourth consideration under Brown—the flagrancy of police misconduct—a virtual nullity. It is difficult to imagine circumstances under which an officer’s interrogation of a suspect in custody pursuant to a Crim.P. 41.1 order would be less culpable than DeLaria’s conduct here.

We are not today presented with a case in which the police acted in a manner “calculated to cause surprise, fright, and confusion.” Brown, 422 U.S. at 605, 95 S.Ct. at 2262. Nor are we confronted here, as we were in McCall, with the authorities’ deliberate, preplanned deception and trickery in obtaining statements from a suspect. By interpreting DeLaria’s intent to question Harris as the sort of misconduct that justifies suppression of Harris’s statements, the majority applies a rule intended to deter police misconduct in a case in which that misconduct did not “rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of [defendant’s] statements.” Rawlings v. Kentucky, 448 U.S. 98, 110, 100 S.Ct. 2556, 2564, 65 L.Ed. 2d 633 (1980).

Accordingly, I would reverse the judgment of the court of appeals on the issue of whether Harris’s statements should have been suppressed.²

1 . The trial court found, in pertinent part:

If the evidence had suggested that the 41.1 order was a ruse that the police officers engaged in ... to get Mr. Harris in a position where he might talk then the result might be different but the evidence in this case is absolutely clear and undisputed that the officers’ motivation in getting this 41.1 order was purely and simply to get what the 41.1 order provided they could get....

2 . The majority opinion, having concluded that the interrogation of the defendant violated his fourth amendment rights, goes on to consider whether the defendant's cross-examination of a rebuttal witness was improperly limited and whether the prosecutor’s comments during closing argument were improper. In light of the majority’s resolution of the fourth amendment issue, I do not think it necessary for the majority to consider the latter two issues since there is little likelihood that those alleged errors will be repeated in a new trial. Accordingly, I express no opinion on either of those issues.