No. 92SC33Supreme Court of Colorado.
Decided March 29, 1993.
Certiorari to the Colorado Court of Appeals
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General; Alexander M. Hunter, District Attorney, Twentieth Judicial District; Bryan W. Quiram, Special Assistant Attorney General, Deputy District Attorney, for petitioner.
Eisner Schild, Peter Schild, for Respondent.
EN BANC
JUSTICE ERICKSON delivered the Opinion of the Court.
[1] The court of appeals in People v. Burola, No. 90CA1908 (Colo.App. Nov. 21, 1991), reversed the judgment of conviction and the sentences imposed on the respondent, Jesus Burola, for conspiracy to distribute and sell cocaine, and for distribution and sale of cocaine. The trial court had denied Burola’s motion to suppress cocaine and money seized by the police when a codefendant was arrested. The court of appeals subsequently reversed the trial court based on its separate conclusions that the inevitable discovery exception to the exclusionary rule did not apply to primary evidence and that the admission of the evidence was not harmless beyond a reasonable doubt. We granted certiorari and now affirm, and return the case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion. I
[2] On October 26, 1989, a police informant placed a call from the police department to Burola’s girlfriend and arranged to buy two ounces of cocaine at her apartment that afternoon.[1] The police wired the informant with a one-way transmitter so that they could monitor the controlled drug purchase and conduct surveillance. Shortly after the informant arrived at the apartment, Ricardo Baca, the alleged supplier of
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the cocaine, appeared and entered the apartment through the back door.
[3] The police became concerned about the safety of the informant because the transmitter worked only intermittently and the individuals in the apartment were speaking primarily Spanish. The police officers knocked on the door of the apartment, and after Burola’s girlfriend denied them entrance, they admittedly entered the apartment unlawfully. As the police officers made their entry into the apartment, Baca jumped out of a bedroom window into the backyard. Baca was immediately arrested. The police officers searched him and discovered 41.9 grams of cocaine and the money used to purchase the cocaine in his pockets. The police also arrested Burola and his girlfriend, and seized additional cocaine they discovered during a post-arrest search of the apartment. [4] At a pretrial hearing, Burola moved to suppress the evidence seized from Baca and from inside the apartment. The prosecution stipulated that it would not use any of the items seized inside the apartment. The prosecution also stipulated that the initial entry into the apartment was unlawful and that Baca had jumped out of the window because of the unlawful entry. The prosecution claimed, however, that the evidence seized from Baca was admissible under either the inevitable discovery or independent source exceptions to the exclusionary rule.[2] [5] The trial court agreed that the evidence received from Baca was admissible under the inevitable discovery exception to the exclusionary rule and denied Burola’s motion to suppress the evidence. A jury subsequently convicted Burola of conspiracy to distribute and sell 28 grams of cocaine, and distribution and sale of 28 grams of cocaine, pursuant to section 18-18-105, 8B C.R.S. (1986). [6] Burola appealed the trial court’s denial of his motion to suppress the evidence seized from Baca. The court of appeals found that the evidence was primary evidence and that the inevitable discovery exception did not apply to primary evidence. Based on that conclusion and its finding that the admission of the evidence was not harmless beyond a reasonable doubt, the court of appeals reversed the trial court. [7] We granted certiorari to review the decision of the court of appeals. We hold that the inevitable discovery exception to the exclusionary rule applies to both primary evidence and to secondary evidence, but conclude that the inevitable discovery exception is not applicable to the facts of this case. We agree with the court of appeals conclusion that the admission of the cocaine and money in this case was not harmless beyond a reasonable doubt. II A
[8] The exclusionary rule is a judicially created remedy designed primarily to deter unlawful searches and seizures by the police. People v. Fournier, 793 P.2d 1176, 1179 (Colo. 1990); People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988); e.g., United States v. Calandra, 414 U.S. 338
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(1974). Under the exclusionary rule, evidence that has been obtained in violation of the Fourth Amendment must be suppressed from presentation during the prosecution’s case-in-chief. Fournier, 793 P.2d at 1179 Schoondermark, 759 P.2d at 718; see generally United States v. Leon, 468 U.S. 897 (1984).
[9] Primary evidence (also referred to as “direct” evidence), is evidence that is a direct product of an unlawful search, while secondary evidence (also referred to as “derivative” or “indirect” evidence) is evidence that is subsequently obtained from the primary evidence. See Schoondermark, 759 P.2d at 718 (citing Nardone v. United States, 308 U.S. 338, 340-41 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 (1920)).[3] The exclusionary rule applies to both the unlawfully obtained evidence itself and also to secondary evidence that is obtained from the primary evidence. Schoondermark, 759 P.2d at 718. [10] In Schoondermark, we recognized, however, that not all evidence obtained in violation of the Fourth Amendment must be suppressed under the exclusionary rule. Id. Schoondermark stated, “[t]hree doctrines, which have been labeled independent source, attenuation, and inevitable discovery, have been recognized as exceptions to the exclusionary rule and justify admission of evidence even though it is derived from information obtained in violation of the fourth amendment.” Id. While Schoondermarkinvolved the independent source exception to the exclusionary rule, in this case, we address the inevitable discovery exception.
B
[11] The initial question is whether the court of appeals properly interpreted the language in Schoondermark to mean that the inevitable discovery exception to the exclusionary rule applies only to secondary evidence. In our view, the court of appeals erred in stating that the inevitable discovery exception applies only to secondary evidence. At no point in our general discussion of the three exceptions to the exclusionary rule in Schoondermark did we declare such a limitation. Nor have we approved of such a restriction in any other case.
(Mass. 1989); see also United States v. Pimentel, 810 F.2d 366, 368-69 (2d Cir. 1986). While the inevitable discovery exception has been applied most frequently to secondary evidence, there is no logical reason not to apply the exception to primary evidence. See Stephen H. LaCount Anthony J. Girese, The “Inevitable Discovery” Rule, an Evolving Exception to the Constitutional Exclusionary Rule, 40 Alb. L. Rev. 483, 507 (1976). [13] In fact, numerous courts specifically have refused to limit the inevitable discovery exception to secondary evidence. See United States v. Whitehorn, 829 F.2d 1225,
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1232 (2d Cir. 1987) (rejecting distinction between direct and indirect evidence), cert. denied, 487 U.S. 1237 (1988); Pimentel, 810 F.2d at 369
(holding that inevitable discovery exception applies to both direct and indirect products of the unlawful search); O’Connor, 546 N.E.2d at 339
(concluding that application of the inevitable discovery exception was not automatically precluded for primary evidence). Other courts, while not stating that the inevitable discovery exception also applies to primary evidence, have concluded that primary evidence was admissible under the exception that otherwise would have been excluded. See, e.g., United States v. Mancera-Londono, 912 F.2d 373 (9th Cir. 1990); United States v. McConnell, 903 F.2d 566 (8th Cir. 1990), cert. denied, 111 S. Ct. 1393 (1991); State v. Vincik, 436 N.W.2d 350 (Iowa 1989) Clough v. State, 555 P.2d 840 (Nev. 1976).
C
[15] The inevitable discovery exception to the exclusionary rule allows evidence initially discovered in an unconstitutional manner to be received, but only if the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means Nix, 467 U.S. at 444; Schoondermark, 759 P.2d at 718; People v. Briggs, 709 P.2d 911 (Colo. 1985); see also 4 Wayne R. LaFave, Search and Seizure § 11.4(a), at 378 (2d ed. 1987) (stating that the inevitable discovery exception asks whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully). The fact that makes discovery of the evidence inevitable must “arise from circumstances other than those disclosed by the unlawful search itself” because otherwise the inevitable discovery exception will swallow the exclusionary rule. United States v. Thomas, 955 F.2d 207, 211 (4th Cir. 1992).
(1983). Although the opinions of the federal circuit courts of appeal are divided, the better-reasoned decisions have similarly concluded that the inevitable discovery exception requires an independent police investigation.[4]
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[17] Moreover, courts have recognized the danger of admitting unlawfully obtained evidence under the inevitable discovery exception “on the strength of some judge’s speculation that it would have been discovered anyway.”See, e.g., United States v. Romero, 692 F.2d 699, 704 (10th Cir. 1982) (quoting United States v. Castellana, 488 F.2d 65, 68 (5th Cir. 1974) rev’d on other grounds, 500 F.2d 325 (5th Cir. 1974) (en banc)).D
[18] In analyzing whether the inevitable discovery exception applies to the facts of this case and the record before us, we cannot conclude that the prosecution established that the evidence seized from Baca ultimately or inevitably would have been discovered by lawful means. E.g., Owens, 782 F.2d at 151-52 (rejecting prosecution’s claim that cocaine in hotel room would have been inevitably discovered when room was cleaned because “of the highly speculative assumption of `inevitability’ that would be required to apply” the inevitable discovery exception).[5]
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warrant nearly always can be obtained after the search has occurred, a contrary holding would practically destroy the requirement that a warrant for the search of the home be obtained before the search takes place.”
[22] Id. at 846 (citations omitted); see also United States v. Silvestri, 787 F.2d 736, 744-45 (1st Cir. 1986) (recognizing that the protection provided by the Fourth Amendment would be substantially weakened by allowing the admission of evidence found during a warrantless search merely because the prosecution could subsequently show that sufficient probable cause existed to justify the issuance of a warrant), cert. denied, 487 U.S. 1233 (1988). [23] Finally, in this case, there is no evidence of independent investigatory measures by which the evidence seized from Baca would have been inevitably discovered. See United States v. Buchanan, 904 F.2d 349, 357 (6th Cir. 1990) (inevitable discovery exception did not apply because unlawful entry onto premises tainted the only investigation that was ongoing); Owens, 782 F.2d at 152 (same); cf. Fletcher v. Wainwright, 399 F.2d 62, 64 (5th Cir. 1968) (holding that evidence thrown out of motel room window and subsequently discovered by police was not admissible where police initially had entered the room unlawfully). [24] For the foregoing reasons, we cannot agree with the trial court’s conclusion that the evidence the police seized from Baca falls within the inevitable discovery exception to the exclusionary rule.III
[25] Having found that the admission of the evidence under the inevitable discovery exception was erroneous, we next address whether the trial court’s admission of the evidence constitutes harmless error. It is well settled that if an asserted error is of constitutional dimension, reversal is required unless the court is convinced that the error was harmless beyond a reasonable doubt. E.g., Chapman v. California, 386 U.S. 18, reh’g denied, 386 U.S. 987 (1967); Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991); see also People v. Myrick, 638 P.2d 34, 38 (Colo. 1981) (holding that a constitutional error is harmless only when the case against a defendant is so overwhelming that the violation was harmless beyond a reasonable doubt).
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this case was not harmless beyond a reasonable doubt.
IV
[29] Accordingly, we affirm and return the case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.
(citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392
(1920); People v. Madson, 638 P.2d 18, 33 (Colo. 1981)). The prosecution has never claimed that there were exigent circumstances justifying a warrantless search of the apartment. Nor did the prosecution contend in the trial court that Burola lacked standing to object to the introduction of evidence seized from Baca. The court of appeals found that the prosecution lost the right to raise the standing question by failing to raise the issue in the trial court. See Steagald v. United States, 451 U.S. 204 (1981). Because the prosecution did not seek certiorari on the standing question, we do not address it.
(6th Cir. 1990) (rejecting inevitable discovery argument because government agents were not pursuing an alternate line of investigation) United States v. Silvestri, 787 F.2d 736, 746 (1st Cir. 1986) (stating that an active pursuit of independent investigation requirement may be appropriate in illegal search cases where no warrant is ever obtained) cert. denied, 487 U.S. 1233 (1988); but see United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989) (holding that there is no requirement that evidence be obtained from a previously initiated independent investigation).
“[Defense Counsel]: Are you always a truthful person?
“[Informant]: I’d say 75 percent of the times I am.
“[Defense Counsel]: Twenty-five percent of the time you lie?
“[Informant]: Yes.
“[Defense Counsel]: Generally you lie if you think it will work to your benefit; isn’t that true?
“[Informant]: No, that’s not true.
“[Defense Counsel]: You just arbitrarily choose 25 percent of the time to lie?
“[Informant]: Yes.”
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