Colorado Court of Appeals 10/28/2011

No. 08CA1123. People v. King.Possession—Controlled Substance—Strip Search—Warrant—Fourth Amendment—Knock and Announce.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance. The case was remanded with directions.

Defendant contended that the trial court erred in concluding that the strip search, which revealed he was concealing bags of cocaine in his anus, was within the scope of the search warrant. The Court of Appeals remanded for consideration of factors related to strip searches.  Strip searches require reasonable suspicion specific to the search and are outside the scope of a warrant allowing a search “upon person.”

Colorado criminal statutes define a strip search as “having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, or female breasts of such person.” § 16-3-405(2), C.R.S. 2011.  Where a strip search is to be performed, a warrant or probable cause that the person possesses contraband is not enough; there must be “specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity.” Citing to People v. Mothersell, 926 N.E.2d 1219, 1226 (N.Y. 2010)

Strip searches must be authorized

(1) by a warrant allowing strip searches that includes an articulable basis for the more invasive search; or

(2) by officers having particularized reasonable suspicion that the defendant has hidden contraband on his or her body.

Here, the SWAT officers did a no-knock entry to a motel room, searching the interior and cuffing King, then seating him outside with supervision.  Officers performed a strip search on defendant after finding nothing in the premises; when they asked defendant to take off his pants and defendant informed them that he was not wearing underwear. The trial court failed to make any evidentiary findings regarding the justification for the strip search (specifically, whether the officers had the requisite reasonable suspicion that defendant was hiding drugs on his body). The court of appeals concluded in this opinion that strip searches are distinct from general searches, must be authorized by warrant allowing strip searching, and the application for warrant must provide particularized reasonable suspicion that a defendant has hidden contraband on their body.  Accordingly, the trial court must consider this issue on remand.

Defendant also contended that the officers violated the “knock and announce” principle of the Fourth Amendment. Here, the no-knock method used to execute the warrant was proper because there were exigent circumstances necessitating an unannounced entry. Defendant had a history of drug dealings and the search took place at a motel where there was a bathroom nearby. The officers had a reasonable suspicion that knocking and announcing their presence likely would result in destruction of the drugs subject to seizure.

No. 09CA2783. People v. Warrick. Possession of Weapon by Previous Offender—Booking Reports—Mittimus—Authentication—Hearsay—Confrontation Rights—Opinion Testimony—Identification.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a weapon by a previous offender (POWPO) and harassment. The judgment was affirmed.

Defendant contended that the trial court abused its discretion in admitting the booking reports and the mittimus, both of which were used by the prosecution to convict defendant of the POWPO charge, because they were not sufficiently authenticated. The booking reports contained a certification from the Arapahoe County Sheriff’s Office that was signed by the custodian of records. This certification was sufficient evidence to authenticate the booking reports as public records under C.R.E. 901(b)(7). Further, the mittimus was self-authenticating under C.R.E. 902(4), because it was certified and signed, and contained the seal of the Arapahoe County District Court. Accordingly, there was no abuse of discretion in admitting these documents over defendant’s objection.

Defendant also contended that the booking reports and the mittimus were hearsay and that the trial court abused its discretion in admitting them under the public records exception. However, the trial court was appropriate in admitting the booking reports and mittimus under C.R.E. 803(8)(A) and (B).

Defendant contended that admission of the booking reports and the mittimus violated his confrontation rights under the U.S. and Colorado Constitutions. The booking reports and mittimus were not created to establish a material fact at any future criminal proceeding. Rather, they were created for routine administrative purposes. Therefore, the booking reports and the mittimus were not testimonial and did not trigger defendant’s confrontation rights.

Defendant contended that the trial court abused its discretion when it permitted the police officer to testify that conspiracy to commit robbery is a class 5 felony and that “F5” stands for class 5 felony. The officer’s testimony that conspiracy to commit a robbery is a class 5 felony “could be reached by any ordinary person” capable of looking up the applicable provision in the Colorado Revised Statutes. Therefore, the police officer’s testimony, even if it was an opinion, was not expert testimony within the meaning of C.R.E. 702.

Defendant further contended that the trial court abused its discretion and committed plain error requiring reversal of his conviction by admitting the police officer’s testimony identifying him from his booking photos. The police officer testified that he had come into contact with defendant during his investigation and stated that he had gotten a good look at him during that period. Therefore, the officer was personally familiar with defendant and did not err in identifying him.

Reprinted and edited from source material generated by the Colorado Bar Association,