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                                                         ADVANCE SHEET HEADNOTE
                                                                  September 10, 2018

                                  2018 CO 71
No. 18SA56, People v. Pappan—Searches and Seizures—Emergencies and Exigent
Circumstances—Plain View Doctrine.

       In this interlocutory appeal, the supreme court considers whether the trial court

erred in suppressing two laser-sight rifles seized from the defendant’s residence during

a warrantless search conducted after the defendant and two other occupants exited the

residence. The supreme court holds that the warrantless search was justified under the

exigent circumstances exception to the warrant requirement. More specifically, the

court concludes: (1) that the officers had an objectively reasonable basis to believe there

was an immediate need to protect their lives or safety by clearing the residence for other

occupants, and (2) that the manner and scope of the search was reasonable because it

was protective in nature and narrowly tailored to neutralize the threat confronting the

officers. The court further holds that the seizure of the laser-sight rifles was justified by

the plain view doctrine.      Accordingly, the decision of the trial court is reversed.
                      The Supreme Court of the State of Colorado
                        2 East 14th Avenue • Denver, Colorado 80203


                                       2018 CO 71

                            Supreme Court Case No. 18SA56
                        Interlocutory Appeal from the District Court
                   Las Animas County District Court Case No. 17CR193
                           Honorable Leslie J. Gerbracht, Judge

                                   Plaintiff-Appellant:
                           The People of the State of Colorado,
                                            v.
                                  Defendant-Appellee:
                                Michael Andrew Pappan.

                                     Order Reversed
                                         en banc
                                    September 10, 2018



Attorneys for Plaintiff-Appellant:
Henry L. Solano, District Attorney, Third Judicial District
Matthew P. Holmes, Deputy District Attorney
 Trinidad, Colorado

Attorneys for Defendant-Appellee:
Megan Ring, Public Defender
Dariel Weaver, Deputy Public Defender
 Trinidad, Colorado




JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE GABRIEL dissents, and JUSTICE HART joins in the dissent.
¶1     The People brought this interlocutory appeal pursuant to section 16-12-102(2),

C.R.S. (2017), and C.A.R. 4.1, seeking review of the trial court’s order suppressing

evidence of two laser-sight rifles seized during a warrantless search of defendant

Michael Pappan’s residence. We now reverse the trial court’s suppression order. We

hold that the officers’ warrantless search was justified by exigent circumstances. More

specifically, we conclude: (1) that the officers had an objectively reasonable basis to

believe there was an immediate need to protect their lives or safety, and (2) that the

manner and scope of the search was reasonable. We further hold that the warrantless

seizure of the laser-sight rifles was justified by the plain view doctrine.

                            I. Facts and Procedural History

¶2     Around 6:40 in the evening, an individual called 911 to report that he observed a

man in the green house directly across the street pointing a laser-sight rifle at him.

Apparently scared for his safety, after requesting assistance, the 911 caller left his

residence in his car and parked nearby. Trinidad Police Department officers responded

to the call shortly thereafter. Officer De La Fuente, among the first officers on scene,

testified that she was familiar with the neighborhood and was aware that the 911 report

was consistent with the types of crimes that are common in that area.

¶3     Upon arriving, the officers observed that a female standing on the front porch of

the green house avoided them by immediately going inside the house and locking the

screen door behind her, despite their commands to stop and their requests to talk to her.

Officer De La Fuente followed her and tugged on the screen door to open it; she then

asked the female to come outside and pulled her out to the porch. While standing just


                                              2
inside the doorway, Officer De La Fuente noticed a male, later identified as Pappan,

running down the stairs from the second floor; he was yelling as he asked questions and

made comments. The officer asked him to come out to the porch as well, and he did so.

Because he disregarded another officer’s commands while on the porch, he was placed

in handcuffs and detained. Based on information the officers received from the female,

they next called out for a child to come out of the house. A child exited, but only after

multiple requests by the officers.

¶4     The atmosphere on the porch was chaotic.        Further, none of the parties the

officers had contacted had the laser-sight rifle referenced by the 911 caller, and the

officers had not yet identified a suspect or obtained reliable information about whether

there were other parties inside the residence.1 Concerned for their safety, the officers

“cleared” the house for other occupants. They made a peaceable entry into the house,

albeit with their guns drawn. Inside, in an upstairs room, they saw in plain view and

collected two laser-sight rifles. No other individuals were found in the house.

¶5     Pappan    was    subsequently    charged    with      felony   menacing,   reckless

endangerment, and disorderly conduct. Following a pretrial hearing, the trial court

granted Pappan’s motion to suppress evidence obtained during the search of his home,

finding that “it would have been better practice for the police to obtain a search

warrant.” The People then filed this interlocutory appeal.



1The officers had a difficult time locating the 911 caller and did not speak with him
until later in their investigation.



                                            3
                                II. Standard of Review

¶6     In reviewing an order addressing a motion to suppress evidence, we defer to the

factual findings made by the trial court. People v. Funez-Paiagua, 2012 CO 37, ¶ 6, 276

P.3d 576, 578. So long as the trial court’s factual findings are supported by competent

evidence, we will not disturb them. Id. However, our review of the trial court’s legal

conclusions vis-à-vis the constitutionality of the challenged search and seizure is de

novo. Id.; see also People v. Syrie, 101 P.3d 219, 222 (Colo. 2004) (“The legal conclusions

of the trial court are subject to de novo review and reversal [is required] if the court

applied an erroneous legal standard or came to a conclusion of constitutional law that is

inconsistent with or unsupported by the factual findings.”).

                                      III. Analysis

¶7     The People argue that the trial court erred in granting Pappan’s motion to

suppress because the exigent circumstances present, in conjunction with the plain view

doctrine, justified the officers’ warrantless search and seizure. We agree.2

                                   A. Relevant Law

¶8     The Fourth Amendment to the United States Constitution and article II, section 7

of the Colorado Constitution prohibit “all unreasonable searches and seizures.”

Mendez v. People, 986 P.2d 275, 279 (Colo. 1999). Although neither constitutional

provision specifies when law enforcement must obtain a warrant before conducting a



2Pappan’s motion did not challenge, and the trial court did not address, the legality of
Officer De La Fuente’s initial entry just inside the doorway of Pappan’s residence to
pull the female out to the porch. We limit our analysis accordingly.


                                             4
search, the United States Supreme Court has inferred from the text of the Fourth

Amendment that “a warrant must generally be secured.” Kentucky v. King, 563 U.S.

452, 459 (2011). It is now “a bedrock principle . . . that ‘searches and seizures inside a

home without a warrant are presumptively unreasonable.’” People v. Brunsting, 2013

CO 55, ¶ 18, 307 P.3d 1073, 1078 (quoting King, 563 U.S. at 459). But this presumption

may be overcome in some situations. Id. at ¶ 19, 307 P.3d at 1078–79. Because the

“ultimate touchstone” of search and seizure jurisprudence is reasonableness, there are

certain exceptions to the warrant requirement. King, 563 U.S. at 459 (quoting Brigham

City v. Stuart, 547 U.S. 398, 403 (2006)). When police officers conduct a warrantless

search, the People bear the burden of establishing that the search “is supported by

probable cause and is justified under one of the narrowly defined exceptions to the

warrant requirement.” People v. Winpigler, 8 P.3d 439, 443 (Colo. 1999).

¶9     Pappan concedes that the People made “a clear showing of probable cause,” and

the record shows that the officers had probable cause to believe that a crime had been

committed and that evidence of that crime, namely a laser-sight rifle, would be located

in his residence.   The parties disagree, however, on whether the People met their

burden of demonstrating both that the exigent circumstances exception justified the

warrantless search of Pappan’s residence, and that the plain view exception justified the

warrantless seizure of the two laser-sight rifles.

¶10    We have repeatedly acknowledged that there is an exception to the warrant

requirement “when exigent circumstances exist that necessitate immediate police

action.” Id.; see also Brunsting, ¶ 25, 307 P.3d at 1079 (when exigent circumstances are


                                              5
present, “the public’s interest in a timely police response . . . outweighs the individual’s

privacy interests.”). In Brunsting, we held that “officer safety concerns fall within the

exigent circumstances exception when (1) the officers have an objectively reasonable

basis to believe there is an immediate need to protect the lives or safety of themselves or

others, and (2) the manner and scope of the search is reasonable.” Brunsting, ¶ 32, 307

P.3d at 1081. In applying the first part of this test, we considered “the totality of the

circumstances . . . ‘as they would have appeared to a prudent and trained police officer

at the time of the challenged entry.’” Id. at ¶ 33, 307 P.3d at 1081 (quoting Winpigler, 8

P.3d at 446). The second part of the test required us to focus on the totality of the

circumstances surrounding the search actually conducted. Id. at ¶ 39, 307 P.3d at 1082.

¶11    Another well-established exception to the warrant requirement is the plain view

doctrine, which provides that police officers “are not required to close their eyes to any

evidence that they plainly see while conducting otherwise legitimate searches.” People

v. Gothard, 185 P.3d 180, 183 (Colo. 2008) (quoting People v. Pitts, 13 P.3d 1218, 1222

(Colo. 2000)). There are three requirements to the plain view doctrine: (1) the intrusion

must have been legitimate; (2) the officers must have had a reasonable belief that the

evidence seized was incriminating; and (3) the officers must have had a lawful right of

access to the evidence. Id. The first prong is met when probable cause and exigent

circumstances justify the officers’ presence. Id. at 183–84. “The second prong exists

when police have probable cause to believe the evidence is incriminating, and the

incriminating nature is immediately apparent” to the officers. Id. at 184. “As with

other exceptions to the warrant requirement, the exigent circumstances exception may


                                             6
combine with the plain view doctrine to justify a warrantless search and seizure.”

People v. Kluhsman, 980 P.2d 529, 535 (Colo. 1999).

                                     B. Application

                        1. Exigent Circumstances Exception

¶12    Based on the evidence presented at the hearing, we conclude that when the

officers entered Pappan’s residence, they had an objectively reasonable basis to believe

there was an immediate need to protect their lives or safety. We further conclude that

the evidence introduced at the hearing established that the manner and scope of the

warrantless search was reasonable.        Therefore, we hold that the People satisfied

Brunsting’s two-part test for application of the exigent circumstances exception when

officer safety concerns are implicated.

a. The Officers Had an Objectively Reasonable Basis to Believe There Was an
               Immediate Need to Protect Their Lives or Safety

¶13    In determining that the officers had an objectively reasonable basis to believe

there was an immediate need to protect their lives or safety, we consider the totality of

the circumstances. However, we view the circumstances as a prudent and trained

officer would have at the time of the search.

¶14    It was close to night time when the officers responded to Pappan’s house

pursuant to a 911 call. A man in Pappan’s residence had reportedly pointed a laser-

sight rifle at the neighbor who lived in the house across the street. The neighbor was

sufficiently concerned for his safety that after calling 911 he drove away from his




                                             7
residence in his car and parked nearby. The officers were aware that the 911 report was

consistent with the types of crimes that are common in that area.

¶15    The first person the officers encountered, a female on the front porch of Pappan’s

house, immediately avoided them by going inside the house and locking the screen

door behind her, despite their commands to stop and their requests to talk to her.

Officer De La Fuente had to yank the screen door open and pull her out to get her on

the porch. Moments later, Officer De La Fuente saw Pappan running down the stairs

from the second floor of the residence and heard that he was yelling. Although he

complied with her request to come out to the porch, he subsequently disregarded

another officer’s commands. As a result, the officers placed him in handcuffs and

detained him. The officers then had to call for a child to come out of the house multiple

times before the child finally exited. At the hearing, Officer De La Fuente described the

situation as chaotic.

¶16    Importantly, the officers realized that none of the individuals on the porch were

in possession of a laser-sight rifle or any type of firearm. Consequently, they had a

reasonable basis to believe that the laser-sight rifle the 911 caller complained about was

still in Pappan’s house.     Moreover, the officers did not yet know whether the

perpetrator who pointed the laser-sight rifle at the 911 caller remained in the house.

Nor did the officers have reliable information as to whether there were other

individuals in the house, including on the second floor. And, because the officers had a

difficult time locating the 911 caller, he was not available to provide additional

information to them at that time.


                                            8
¶17    Under the totality of the circumstances, as they would have appeared to a

prudent and trained officer, Officer De La Fuente and her fellow officers faced a serious

risk to their lives or safety that understandably caused them concern. While standing

on the front porch of Pappan’s house, the officers were vulnerable to being ambushed

by an individual in the house with access to the laser-sight rifle reportedly on the

premises. Therefore, they had objectively reasonable grounds to believe there was an

immediate need to protect themselves. The threat they faced was real, and the fear they

felt was objectively reasonable. Ignoring the situation they confronted would have

imperiled their safety.

¶18    Pappan nevertheless argues that the officers’ concern for their safety did not

justify clearing his residence for other occupants because they had already concluded

he was the individual who reportedly pointed a laser-sight rifle at the 911 caller.

However, the trial court did not make a finding as to when, in relation to the search

conducted, the officers identified the male detained on the porch as the suspect.3

Further, the dispatch CD, which contains the 19 audio-recorded communications

dispatch had with the 911 caller and the responding officers, suggests that the officers

identified the male on the porch as the suspect after they cleared the house and learned




3The trial court found that “it was clear on the dispatch tape that the reporting party
unequivocally stated it was Mr. Pappan with the firearm,” and that dispatch
communicated this information to at least one unknown officer at some unknown time.
But the trial court did not find that this information was provided to the responding
officers before they cleared Pappan’s residence for other occupants, and the record
would not have supported such a finding.


                                           9
that there were no other male occupants present.4              Immediately after the officers

informed dispatch that they were going to clear Pappan’s residence for other occupants,

there were no communications with dispatch for a handful of minutes. This radio

silence is consistent with the officers clearing Pappan’s residence for other occupants.

During the next radio communication by the officers who cleared the house, they

informed dispatch for the first time that the male on the porch, Pappan, was the suspect

who allegedly pointed a laser-sight rifle at the 911 caller.

¶19    In any event, Pappan’s contention is inconsequential. Even if the officers had

known before the search that the male detained on the porch was the suspect, their

actions still would have been justified because there could have been other parties in the

residence and the laser-sight rifle had not yet been located. The threat would have been

just as real, and the officers’ concern for their lives or safety would have been just as

objectively reasonable. Thus, contrary to Pappan’s assertion, application of the exigent

circumstances exception in this case does not hinge on whether the officers identified

the male on the porch as the suspect before or after conducting their search.

¶20    We recognize that Pappan and the female indicated to the officers before the

search that there were no other occupants in the house. But the officers were not

required to rely on that information or to accept it as accurate. Both Pappan and the


4 Officer De La Fuente testified on cross-examination that when Pappan came down the
stairs, she realized that his gender fit the perpetrator’s gender. Pappan’s gender,
though, could not rule out the potential that a different male was the perpetrator. It
was only after the officers cleared the house and discovered there were no other males
present that Pappan could be singled out as the suspect.



                                             10
female had refused to heed the officers’ commands and had been less than cooperative.

Additionally, the possibility existed that Pappan, as a male, would later be identified as

the suspect. Moreover, as Officer De La Fuente testified, she typically assumes that

people are lying to her because it is not uncommon for people to lie to police officers.5

¶21    The trial court acknowledged Officer De La Fuente’s testimony that the officers

did not know when they conducted the search whether there were other people in the

house. However, it pointed out that the officers “did not search the basement.” This

observation is of no import to our analysis. First, the trial court did not find incredible

Officer De La Fuente’s testimony that she and her fellow officers entered the house for

officer safety reasons. Nor did the trial court question Officer De La Fuente’s general

credibility. Second, the dispatch CD corroborates Officer De La Fuente’s testimony.

The CD reflects that the officers informed dispatch that they were going to clear the

house to make sure no one else was inside. Finally, we decline Pappan’s invitation to

speculate that the officers’ failure to check the basement reflects they were not

genuinely concerned about their safety and were, instead, looking for an excuse to

search the house for evidence.       Once the two laser-sight rifles were located and

collected, the officers may reasonably have concluded there was no need to check the

basement because any threat to their safety had been neutralized. It is equally plausible

5 This opinion should not be misinterpreted as establishing exigent circumstances to
clear a residence without a warrant whenever police officers assume a resident is lying
to them about whether there are other occupants inside. Rather, we simply conclude
that where, as here, there is an objectively reasonable basis to believe police officers
have an immediate need to clear a residence for occupants in order to protect their lives
or safety, they are not required to accept as true a representation by a resident that there
is no one else inside.


                                            11
that the officers viewed the basement as an area of the house that posed no imminent

threat to their safety, especially since they had not observed anyone walk upstairs from

the basement.

¶22    That there were officers stationed around Pappan’s residence at the time of the

search does not alter our analysis either. This circumstance did not affect the threat to

the officers or their concern for their safety. To be sure, Officer De La Fuente testified

that at least one officer had a visual on each exit of the residence. But the fact remains

that the officers had probable cause to believe there was a laser-sight rifle inside the

residence that may have been accessible to an unknown individual. Having a visual on

all the exits of the residence did not protect the officers from someone armed with a rifle

lying in wait.

¶23    In sum, we find that the People demonstrated at the hearing that the officers had

objectively reasonable grounds to believe that they had an immediate need to protect

their lives or safety. We therefore proceed to explore the reasonableness of the officers’

response to the perceived danger.

      b. The Manner and Scope of the Warrantless Search was Reasonable

¶24    When we assess whether the manner and scope of a warrantless search was

reasonable, we again look at the totality of the circumstances. Here, though, our focus

is on the circumstances surrounding the search conducted.

¶25    We begin this part of our analysis, as we did in Brunsting, by drawing guidance

from our decision in People v. Aarness, 150 P.3d 1271 (Colo. 2006). In Aarness, police

officers received an anonymous tip indicating that Aarness had outstanding warrants


                                            12
for his arrest. Id. at 1274. The same tip included Aarness’s height, weight, hair color,

and eye color, and reported that Aarness was armed with a loaded handgun. Id. After

verifying the existence of the outstanding warrants, six officers responded to Aarness’s

apartment. Id. Three of them knocked on the door with their guns drawn. Id. When

Aarness’s brother opened the door, the officers saw Aarness sitting in a recliner. Id.

Because Aarness immediately shoved his hand between the cushion and the armrest of

the recliner, the officers believed he was reaching for a weapon and ordered him to

show his hands. Id. Concerned for their safety, the officers pulled Aarness’s brother

out of the apartment and ordered two other individuals to exit the apartment. Id. A

few seconds later, Aarness complied with the officers’ order to raise his hands. Id. The

officers nevertheless entered the apartment with guns drawn, arrested Aarness, and

cleared the apartment for other occupants. Id.

¶26   We concluded that the manner and scope of the officers’ entry to arrest Aarness

and clear the apartment was reasonable in light of the officer safety concerns present.

Id. at 1279–80. In so doing, we considered, among other factors, “whether the entry

[was] made peaceably” and “[w]hether the entry [was] made at night.” Id. at 1279.

¶27    In Brunsting, we also relied on People v. Smith, 13 P.3d 300 (Colo. 2000), and

Smith is equally instructive here. There, a police officer conducted a traffic stop shortly

before 3:00 a.m. for driving with an obstructed windshield. Id. at 303. After the driver

handed him her license and informed him she did not have registration paperwork

because the vehicle she was driving belonged to a friend, the officer returned to his

patrol car and ran checks on the license plate number of the vehicle and on the vehicle


                                            13
identification number. Id. The latter check revealed that the vehicle was stolen. Id.

While in his patrol car, the officer noticed that the driver made a call using a cell phone.

Id. A Suburban with tinted windows then pulled up behind the officer’s patrol car. Id.

Because the driver of the Suburban, Smith, left his headlights on, the officer could not

determine how many people were in that vehicle. Id. Concerned for his safety and

fearing “an ambush,” the officer called for backup. Id. Another officer responded

within two to five minutes, and the two officers approached the Suburban with their

guns drawn and ordered Smith to turn off the ignition and drop his keys outside his

window. Id. He complied. Id. After additional backup arrived, the officers yelled at

Smith to exit his vehicle slowly with his hands in the air. Id. at 303–04. Once out of the

Suburban, the officers ordered Smith to turn around so they could conduct a visual

search for weapons, ordered him into a kneeling position with his hands behind his

head, commanded him to lie prone, handcuffed him, and took him into custody. Id. at

304.

¶28    Because a subsequent search of the Suburban yielded a loaded handgun and

crack cocaine, Smith was charged with several drug and weapon offenses. Id. In

reversing the trial court’s order granting Smith’s pretrial motion to suppress, we

examined the totality of the circumstances and ruled that “it was clearly reasonable for

the officers to believe that the occupant(s) of the Suburban could pose a threat to their

safety.” Id. at 305. We therefore concluded that the officers “were entitled to order

Smith out of the car, and conduct a protective search for weapons.” Id. Significantly,

although we acknowledged that the officers’ intrusions were unconventional, we


                                            14
reasoned that they were justified based on the circumstances, which reflected that the

force used constituted a reasonable precaution necessary for the protection and safety of

the officers:

       The degree of force that the officers used was significant, but was not
       disproportionate to the circumstances in which they found themselves.
       The officers’ display of weapons and means of detaining Smith were
       legitimate safety precautions taken in response to the uncertain danger
       posed by the Suburban’s occupant(s). The officers were entitled to use
       some force until they secured the situation, were able to ascertain Smith’s
       identity, whether he was armed, and the reasons for his presence at the
       scene.

Id. at 305–06.

¶29    Here, contrary to the general rule governing searches and seizures, the officers

searched Pappan’s home without obtaining a warrant. But the warrantless search was

justified by the circumstances, which reflected that the officers needed to take

immediate action to protect themselves. As they stood on the porch of Pappan’s home,

the officers were as vulnerable as the arresting officers were in Aarness when they saw

Aarness shove his hand between the cushion and the armrest of his recliner, and as

vulnerable as the first responding officer was in Smith when the Suburban pulled up

behind his patrol car. Officer De La Fuente and her fellow officers reasonably feared

that they would be ambushed by an unknown individual inside the house with access

to the laser-sight rifle believed to be on the premises.

¶30    Given the seriousness of the imminent threat present, the manner and scope of

the officers’ search was reasonable.      The search was protective in nature and was

narrowly tailored to neutralize the threat confronting the officers. The officers entered



                                             15
the house peaceably, albeit with their guns drawn, to clear the house for other

occupants. They walked through the first two floors of the house strictly to check for

people. There was no way for the officers to protect themselves from the danger they

faced other than to do a walk-through inside the house to determine whether anyone

else was there. And, after securing the two laser-sight rifles and ensuring there were no

other occupants in the house, the search ended.

¶31   Considering the totality of the circumstances, we are convinced that the manner

and scope of the officers’ search was reasonable. Hence, we find that the People met the

second element of the test we set forth in Brunsting.

                               2. Plain View Exception

¶32   Having determined that the officers’ safety concerns fell within the exigent

circumstances exception to the warrant requirement, we next address whether the

seizure of the two laser-sight rifles was justified. Based on the plain view doctrine, we

conclude that it was.

¶33   Because we have already found that probable cause and exigent circumstances

justified the officers’ entry into Pappan’s residence, the first prong of the plain view

doctrine, which requires that the intrusion be legitimate, was met. The remaining two

prongs were likewise satisfied. First, when the officers saw the laser-sight rifles, they

had probable cause to believe that the rifles constituted incriminating evidence because

the 911 caller had reported that the firearm pointed at him was a laser-sight rifle. Under

the circumstances, the incriminating nature of the rifles was also immediately apparent




                                           16
to the officers.6 Second, the officers had a lawful right of access to the laser-sight rifles

because they were conducting a legitimate search and were not required to close their

eyes to incriminating evidence that was plainly visible.

¶34    In short, the plain view doctrine authorized the officers to seize the two laser-

sight rifles without a warrant. Therefore, the warrantless seizure did not violate the

Fourth Amendment to the United States Constitution or article II, section 7 of the

Colorado Constitution.

                                     IV. Conclusion

¶35    We hold that the trial court erred in finding that the officers violated Pappan’s

constitutional right to be free from unreasonable searches and seizures. Therefore, we

reverse the trial court’s suppression order and remand the case for further proceedings.



JUSTICE GABRIEL dissents, and JUSTICE HART joins in the dissent.




6 The officers did not seize the third firearm located in Pappan’s residence. Because that
firearm was not consistent with the rifle described by the 911 caller, the officers lacked
probable cause to believe it constituted incriminating evidence. Nor was the
incriminating nature of the unrecovered firearm immediately apparent to the officers.


                                             17
JUSTICE GABRIEL, dissenting.

¶36    The majority concludes that exigent circumstances justified the warrantless

search of defendant-appellee Michael Pappan’s home. Because I believe that the district

court correctly found that the evidence presented at the suppression hearing did not

support such a conclusion, I respectfully dissent.

                                   I. Factual Background

¶37    I need not repeat the majority’s recitation of the salient facts. I do, however,

highlight the following facts, virtually all of which were undisputed, because these facts

inform my analysis of this case.

¶38    The matter at issue unfolded when a 911 caller alleged that his across-the-street

neighbor was pointing a rifle with a laser scope at the caller’s house. At no time did the

caller or anyone else report that any shots were fired.

¶39    A number of officers responded, and Officer De La Fuente saw a woman who

turned out to be Pappan’s wife go into the house and lock the door.               Officer

De La Fuente ordered the woman to come outside, and she did so. The officer then

ordered all other parties in the house to come out, and when she did, she saw Pappan,

who fit the description of the suspect whom the officers were seeking, come down the

stairs and leave the house.

¶40    At this point, the record reveals that Officer De La Fuente understood that a child

remained in the house. The child soon came out, however, and Officer De La Fuente

thus had every reason to believe—and on the facts presented, any objectively

reasonable officer in her position would have believed—that everyone who had been in
                                             1
the house was now out of the house. Indeed, the officer confirmed this by asking the

people who had come out whether anyone remained inside. All responded that no one

was still in the house.

¶41    Notwithstanding the foregoing, and based solely on the fact that Officer

De La Fuente does not believe what people tell her, she and several officers entered the

house, which was by then completely secured by other officers, presumably to conduct

a protective sweep.

¶42    Although Officer De La Fuente ultimately testified—and the People now

contend—that such a sweep was necessary to ensure that no one else was in the house,

no evidence suggested that anyone else was inside, and the officers did not search the

entire house, as they would have done in a typical protective sweep. Instead, they

searched only the first and second floors (but not the basement), and they stopped their

search as soon as they confiscated several weapons from the second floor, thus

suggesting that the search here was not actually a protective sweep, but rather was a

search for evidence.

                                      II. Analysis

¶43    I begin by setting forth the applicable law and then apply that law to the facts of

this case.

      A. The Fourth Amendment and the Exigent Circumstances Exception

¶44    The Fourth Amendment provides, in pertinent part, “The right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. Const. amend. IV. Likewise, the Colorado
                                            2
Constitution provides, in pertinent part, “The people shall be secure in their persons,

papers, homes and effects, from unreasonable searches and seizures.” Colo. Const.

art. II, § 7.

¶45     It has long been settled that the physical entry into a person’s home is the “chief

evil against which the Fourth Amendment is directed.” People v. O’Hearn, 931 P.2d

1168, 1173 (Colo. 1997) (internal quotations omitted); see also Payton v. New York,

445 U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a firm line at the

entrance to the house. Absent exigent circumstances, that threshold may not reasonably

be crossed without a warrant.”).      Accordingly, “[i]t is a ‘basic principle of Fourth

Amendment law’ that searches and seizures inside a home without a warrant are

presumptively unreasonable.”       Payton, 445 U.S. at 586 (quoting Coolidge v. New

Hampshire, 403 U.S. 443, 477 (1971)); accord O’Hearn, 931 P.2d at 1173.

¶46     Notwithstanding the foregoing, courts have recognized several exceptions to the

warrant requirement, and the People bear the burden of establishing one of these

exceptions. People v. Amato, 562 P.2d 422, 423 (Colo. 1977).

¶47     As pertinent here, one such exception is the so-called “exigent circumstances”

exception. People v. Brunsting, 2013 CO 55, ¶ 25, 307 P.3d 1073, 1079. This exception is

limited to situations in which, due to an emergency, a compelling need for immediate

police action militates against strict adherence to the warrant requirement. People v.

Gomez, 632 P.2d 586, 592 (Colo. 1981). The exception is thus a narrow one, and it

applies only when the People establish both probable cause to search and exigent



                                             3
circumstances justifying a warrantless entry. People v. Jansen, 713 P.2d 907, 911 (Colo.

1986).

¶48      Exigent circumstances have been limited to only a few factual circumstances.

The People assert that this case involves one such circumstance, namely, the scenario in

which a colorable claim of emergency threatens the life or safety of another. Brunsting,

¶ 26, 307 P.3d at 1079. To establish such a scenario here, the People were required to

show both an immediate crisis inside the house and the probability that police

assistance would have helped alleviate that crisis. Id. at ¶ 29, 307 P.3d at 1080. These

requirements are consistent with the fact that the primary purpose of such a warrantless

entry is to render emergency assistance and not merely to search for evidence.

People v. Allison, 86 P.3d 421, 426 (Colo. 2004).

                                       B. Application

¶49      Applying the foregoing principles to the evidence presented in this case leads me

to conclude that the district court correctly found that the People did not satisfy their

burden of establishing the applicability of the exigent circumstances exception here.

¶50      Although the People’s briefs in this case principally contest facts that the district

court found against the People, I see no evidence supporting the People’s contention

that the officers on the scene had an objectively reasonable basis to believe that they had

an immediate need to enter the home to protect their lives and safety or the lives and

safety of others.

¶51      As noted above, the record demonstrates that all of the people whom the officers

believed to have been in the house had exited, and they all told Officer De La Fuente
                                               4
that no one remained in the house. The record reveals no evidence to the contrary and

specifically no evidence of a second person allegedly menacing the across-the-street

neighbor (or even of a report of such a second person) and no evidence of an ongoing

threat. To the contrary, the record indicates that the neighbor reported that one man

was pointing a gun at the neighbor’s house, and Officer De La Fuente testified at the

suppression hearing that Pappan, who had exited the house, fit the description of that

man, whether she knew his precise identity or not. In addition, the record contains no

evidence that any shots were fired or that anyone was about to fire any shots.

¶52    Thus, the only evidence justifying the officers’ warrantless entry into Pappan’s

home was Officer De La Fuente’s statement that she does not believe what people tell

her. In my view, however, a presumption that everyone lies, absent any factual basis to

support a conclusion that anyone was lying, cannot suffice to justify a warrantless entry

into a suspect’s home. If it could, then the exigent circumstances exception would have

no limit. Police officers would always be permitted to enter a suspect’s home simply by

stating a subjective, albeit factually unsupported, view that they did not believe that the

house was empty, even if they were told precisely the opposite and even if they had no

factual basis to disbelieve what they were told.

¶53    Nor do I believe that a warrantless search can be supported by an officer’s

subjective assumption that a second suspect might possibly be in a home, absent any

factual basis to support such an assumption.        Again, if such an assumption were

sufficient, then the exigent circumstances exception would be rendered meaningless.



                                            5
Exigent circumstances would exist in virtually every case because police officers could

almost always truthfully say that a second suspect was a possibility.

¶54    Last, I find it telling that the People have offered no response to Pappan’s

argument that the officers’ purported protective sweep here was invalid and a pretext

for an exploratory search for evidence, given that the police did not search the entire

house and stopped their purported sweep as soon as they confiscated the guns from the

second floor. Obviously, were the police truly engaged in a protective sweep for other

people in the house, they would have searched the entire house, and they would not

have stopped their search once they confiscated several guns from the second floor.

Based on the People’s own reasoning, another gunman could have been hiding in the

basement.

¶55    On this point, I am not persuaded by the majority’s statements that (1) once the

guns were seized, the officers “may reasonably have concluded” that they did not need

to search the basement and (2) “it is equally plausible” that the officers perceived no

threat that anyone may have been in the basement.          Maj. op. ¶ 21.    No evidence

supports either of these assertions as to what the officers may have perceived (Officer

De La Fuente, the People’s only witness at the suppression hearing, did not so testify).

Nor do I believe that this court should speculate as to such facts, particularly given that

the People had the burden of proving the applicability of the exigent circumstances

exception in this case.

¶56    Nor am I persuaded by the majority’s reliance on People v. Aarness, 150 P.3d

1271, 1274 (Colo. 2006), and People v. Smith, 13 P.3d 300, 303–04 (Colo. 2000). See maj.

                                            6
op. ¶¶ 25–29. As the majority’s recitation of the facts of those cases makes clear, there,

the evidence established a clear and non-speculative threat to the officers at issue. See

id. at ¶¶ 25, 27 (noting that in Aarness, the officers saw the defendant shove his hand

between the cushion and armrest of a recliner in which he was sitting, causing the

officers to fear that he was reaching for a weapon, and that in Smith, an officer who had

initiated a traffic stop shortly before 3:00 a.m. saw the driver make a cell phone call,

after which a Suburban with tinted windows pulled up behind the officer’s patrol car,

leading the officer to fear an ambush). The evidence in this case, in contrast, revealed

no such ongoing threat. Rather, the People seek to justify the search and seizure at issue

based on possibilities, speculation, and assumptions, without any supporting evidence.

For the reasons set forth above, I do not believe that this kind of conjecture suffices to

satisfy the People’s burden of proof.

¶57    In sum, like the district court, I do not believe that the People have established

the exigent circumstances necessary to justify the warrantless home entry at issue. As a

result, in my view, the seizure of the guns at issue cannot be justified under the plain

view doctrine. See People v. Gothard, 185 P.3d 180, 183 (Colo. 2008) (noting that to

satisfy the plain view doctrine, the People must show, among other things, that the

initial intrusion was legitimate). I therefore would affirm the district court’s order

suppressing the fruits of the unconstitutional search and seizure at issue.

                                    III. Conclusion

¶58    Today, the majority adopts a standard for exigent circumstances that in my view

(and notwithstanding the majority’s assurance to the contrary, see maj. op. ¶ 20, n.5)
                                            7
would allow a warrantless entry into a suspect’s home based on nothing more than a

police officer’s presumption, unsupported by any evidence, that people always lie.

Because I believe that such a standard diminishes the protections afforded by the

United States and Colorado Constitutions, and because I perceive no other evidence

supporting a finding of exigent circumstances in this case, I would defer to the district

court’s findings and conclude that the warrantless search and seizure at issue were

unconstitutional, thus requiring suppression of the fruits of that search and seizure.

¶59   Accordingly, I respectfully dissent.

      I am authorized to state that JUSTICE HART joins in this dissent.




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