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People v. Stone.

2021 COA 104. No. 19CA1772. Fourth Amendment—Warrantless Search—Consent Exception—Evidence.

August 5, 2021

Seventeen-year-old N.M. reported to police that defendant, his mother, had threatened him with a knife. When Officer Westbrook arrived at defendant and N.M.’s residence, N.M. invited her inside and showed her the knife that he said defendant had used to threaten him. Westbrook took photographs of the knife with her cell phone, and then left the house to get her department-issued camera so she could take better pictures of the home’s unkempt and unsafe interior. As she stepped outside, Westbrook saw that defendant had arrived and was yelling at a neighbor, so Westbrook reentered the home without her camera. Based on conditions inside the home, Westbrook contacted child protection services, and the reporting caseworker determined that the children needed to be removed. Over the next couple of hours, other law enforcement officers entered the house and photographed the interior. Defendant was arrested on various charges related to child abuse.

Defendant filed a pretrial motion to suppress evidence of the knife and the home’s condition. After a hearing, the trial court entered an order finding that Westbrook’s initial entry into the house was lawful. But it concluded that the entry of some other officials violated defendant’s Fourth Amendment rights and excluded evidence secured through their actions, including photographs. A jury found defendant guilty of one count of felony menacing, six counts of child abuse, and one count of violation of a protection order that the neighbor had obtained against her.

On appeal, defendant argued 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 reentry into the house. Here, the prosecutor did not introduce evidence establishing that Westbrook took the photographs, and Westbrook testified at the suppression hearing that, while in the house, she only photographed the knife. The trial court thus erred by admitting photographs of the house’s interior taken by an officer who entered the house illegally. However, admission of the photographs was harmless beyond a reasonable doubt because the improperly admitted photographs were cumulative of Westbrook’s testimony regarding her observations inside the house.

Defendant also argued that the trial court erred by admitting the photographs Westbrook took of the knife and her trial testimony regarding her observations of the interior of the house because Westbrook violated defendant’s Fourth Amendment rights when she entered the house without defendant’s consent. In certain circumstances, a co-occupant can validly consent to a search of the residence even though the law enforcement officers are investigating a different co-occupant. Here, N.M. had actual authority to consent to Westbrook’s entry, and he voluntarily gave Westbrook consent to enter the house. Further, N.M. did not revoke his consent or otherwise object to Westbrook’s reentry into the house. Therefore, the trial court did not err.

The judgment of conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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