People v. Cleburn , 782 P.2d 784 ( 1989 )

Justice LOHR

delivered the Opinion of the Court.

The prosecution has filed this interlocutory appeal pursuant to C.A.R. 4.1 challenging an order of the Fremont County District Court suppressing a rifle and statements made by the defendant to a deputy sheriff. The trial court concluded that the statements had been made during a custodial interrogation without the required reading of Miranda¹ warnings and were involuntary. The trial court also ruled that the rifle had been seized after a warrant-less search conducted without the voluntary consent of the defendant. We affirm the trial court’s ruling and remand the case for further proceedings.

I.

The essential facts are not in dispute.² At approximately 5:00 p.m. on September 7, 1988, Deputy Sheriff Don Alder went to a location in western Fremont County to investigate a report that someone had menaced another person with a rifle and had fired the rifle at the victim. Alder spoke with the victim, who described the person who had menaced him. From the description, Alder determined that the defendant, Charles Cleburn, was a likely suspect. Alder, together with posseman Dan Ogden,³ went to Cleburn’s residence, which was in a sparsely populated area.

At approximately 7:00 p.m. Alder and Ogden arrived at Cleburn’s house. Both were armed and dressed in uniforms. Alder was a previous acquaintance of Cleburn and the two were on friendly terms. The trial court described what followed as “sort of a ‘good ol’ boy’ scenario.” Alder knocked at Cleburn’s door, and told him that he needed to talk to him, and Cleburn told Alder and Ogden to “come on in.” The three men, along with Cleburn’s wife, spoke in Cleburn’s kitchen. Alder addressed Cleburn by his nickname, “Bo,” and asked if he had experienced a “run-in with a young kid” that afternoon. Cleburn said “yes.” Alder said that the youngster had reported that “there was a weapon” and asked Cleburn if he had used any sort of a weapon. Cleburn’s wife replied that Cleburn had a BB gun, and Cleburn pointed to such a gun leaning against a wall of the kitchen.

Alder then asked Cleburn a series of questions about any other guns he might own, inquiring first about a hunting rifle. Cleburn admitted owning a .270 rifle and went to his bedroom to get it. Alder followed Cleburn into his bedroom and Cle-burn showed Alder the .270 rifle, which Cleburn had retrieved from a walk-in closet. In response to further questions by the deputy, Cleburn produced two shotguns and a .22 rifle from the closet. Alder then told Cleburn that the victim had mentioned a lever-action rifle, and Alder asked Cle-burn if he had “something like that, like a .30-30.” Cleburn admitted having such a gun. Alder asked if he could see it, but said “you don’t have to let me.” Cleburn showed him the rifle. Alder then asked if he could look in the closet to see if there were any other guns, again telling Cleburn that he did not have to let him. Cleburn agreed to the inspection, and the deputy examined the closet. Satisfied that there were no other guns in the closet, Alder asked if he could take the .30-30 with him, and Cleburn agreed.

Alder then returned to his car with the rifle and “got to thinking a little bit.” Shortly thereafter he went back to Cle-burn’s door, asked Cleburn to come outside and placed him under arrest. Cleburn was subsequently charged in the District Court for Fremont County with one count of menacing by the use of a deadly weapon, § 18-3-206, 8B C.R.S. (1986), a class 5 felony.

In a pretrial ruling, the trial court granted a motion by the defendant to suppress the statements made by Cleburn to Alder prior to the formal arrest on the grounds that they were made during custodial interrogation without the benefit of a Miranda advisement and were involuntary. The trial court also suppressed the .30-30 rifle seized by Alder on the grounds that the rifle was discovered as a product of the illegal custodial interrogation and that Cle-burn had not voluntarily consented to the search. The prosecution then brought this interlocutory appeal.

II.

First, we must consider whether Cle-burn’s statements should have been suppressed. An advisement of rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is required before an individual in police custody may be subjected to interrogation by law enforcement officers. People v. Sandoval, 736 P.2d 1201, 1203 (Colo.1987). In this case, as the trial court recognized and as the prosecution has conceded, there is no question that an interrogation took place and that no Miranda warnings were given. Our task is to decide whether the trial court was correct in ruling that the interrogation was custodial.

The test for whether a person is in police custody is “whether a reasonable person in the suspect’s position would consider himself deprived of his freedom of action in any significant way.” Sandoval, 736 P.2d at 1203. The fact that a person is interrogated in his own home does not make the interrogation noncustodial as a matter of law. Orozco v. Texas, 394 U.S. 324, 326-27, 89 S.Ct. 1095, 1096-97, 22 L.Ed.2d 311 (1969). Application of the “reasonable person” test requires an objective assessment of whether a reasonable person in the defendant’s circumstances would have believed that he was free to leave the officer’s presence, and does not turn on the subjective beliefs of either the suspect or the law enforcement officer. People v. Thiret, 685 P.2d 193, 201 (Colo.1984). In making this determination, the trial court must consider the totality of circumstances surrounding the interrogation. Sandoval, 736 P.2d at 1203. Among the factors the court should consider are:

[T]he time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer’s tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer’s response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant’s verbal or nonverbal response to such directions.

Thiret, 685 P.2d at 203.

The trial court made detailed findings regarding these factors and determined that “from the overall totality of the circumstances, there was [a deprivation of freedom].” In particular the trial court noted: (1) the presence of two armed law enforcement officers in the defendant’s house for the purpose of talking to the defendant about a crime; (2) the fact that the deputy initiated the conversation; (3) the officer’s purpose of obtaining evidence against the defendant; (4) the deputy’s subtle coercive influence over the defendant as a friend; and (5) the relatively long twenty to thirty minute interrogation.

The determination of whether an interrogation is custodial — whether a reasonable person would have believed that he was not free to leave — is a factual determination to be made by the trial court. People v. Johnson, 671 P.2d 958, 962 (Colo.1983). We will overturn a trial court’s factual finding only if it is not supported by competent evidence in the record. People v. Parks, 195 Colo. 344, 349, 579 P.2d 76, 79 (1978); People v. Ellis, 189 Colo. 242, 245, 539 P.2d 132, 135 (1975). Because we find the trial court’s finding supported by the record, we affirm its order suppressing Cleburn’s statements.⁴

III.

We next address the trial court’s order suppressing the rifle seized at Cleburn’s home. Warrantless searches or seizures are impermissible if they do not fall within one of the recognized exceptions to the warrant requirements of the United States and Colorado Constitutions. U.S. Const, amend IV; Colo. Const. art. II, § 7. One exception is a search to which the defendant consents. Thiret, 685 P.2d at 200-01. The prosecution argues that there was no search because Cleburn voluntarily revealed evidence of a crime.

This court has held that “[a] search consists of a looking for or seeking out that which is otherwise concealed from view.” People v. Carlson, 677 P.2d 310, 316 (Colo.1984). In this case the officers entered Cleburn’s house seeking a .30-30 rifle that was concealed from view in Cleburn’s bedroom closet. Their actions clearly constituted a search. The question is whether Cleburn consented to that search and the subsequent seizure of the gun.

For consent to be valid it must be found to have been given freely and voluntarily in light of the totality of the circumstances. Thiret, 685 P.2d at 201. Voluntary consent cannot be “the result of duress or coercion, express or implied, or any other form of undue influence exercised against the defendant.” Id. In determining whether consent has been voluntarily given, the trial court should consider the defendant’s age, education, intelligence and state of mind as well as the duration, location and other circumstances of the search. Carlson, 677 P.2d at 318. Knowledge of the right to refuse permission to conduct a search is also a relevant factor, although “not a prerequisite to establishing the voluntary character of a consent search.” Id.; People v. Helm, 633 P.2d 1071, 1076 (Colo.1981). The burden is on the People to show by clear and convincing evidence that consent was voluntary. People v. Carlson, 677 P.2d 310, 318 (1984); Helm, 633 P.2d at 1077 n. 8; People v. Lowe, 200 Colo. 470, 616 P.2d 118, 124 (1980).

When consent is given after an interrogation in violation of Miranda, the consent is likely to be constitutionally infirm, tainted by the unconstitutional interrogation. See Lowe, 616 P.2d at 124 (suppressing items obtained in search because search and consent to search were fruits of unlawful custodial interrogation); cf. People v. Donald, 637 P.2d 392, 394 (Colo.1981) (consent to search apartment would likely be infirm as product of illegal entry); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (suppressing statements made incident to an unlawful arrest and subsequently seized narcotics as “fruits” of unlawful action). Because the defendant had already admitted owning the rifle and being involved in a “run-in” with the victim, he had nothing to lose by giving Alder the rifle. These circumstances support the trial court’s determination that the rifle was obtained as a result of the illegal custodial interrogation.

The trial court also held that the People had not met their burden of establishing the voluntariness of the consent by clear and convincing evidence. The trial court noted that the questioning began at 7:00 p.m., there were two armed deputies in the defendant’s home, the prior relationship between one of the deputies and the defendant made the questioning subtly coercive, the defendant was in custody, and the defendant had already made incriminating statements without the benefit of a Miranda advisement.

Voluntariness is a question of fact. People v. Carlson, 677 P.2d 310, 318 (Colo.1984). A trial court's finding, therefore, must not be overturned if the record contains competent evidence supporting it. People v. Cummings, 706 P.2d 766, 769 (Colo.1985); People v. Medina, 180 Colo. 56, 58, 501 P.2d 1332, 1332 (1972). Because we find the trial court’s ruling supported by the record, we affirm the order suppressing the rifle seized at the defendant’s home.

IV.

In summary, we affirm the trial court’s order suppressing statements made by the defendant and the rifle seized at his home. The case is remanded for further proceedings consistent with this opinion.

VOLLACK, J., dissents. ROVIRA and MULLARKEY, JJ., join in the dissent.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . The evidence was presented by a single witness, Fremont County Deputy Sheriff Don Alder, who was called by the prosecution. The following facts are taken from the trial court’s ruling, supplemented to some extent by Alder’s uncontradicted testimony.

3 .The record does not specifically disclose whether the "posseman” was a law enforcement officer. The trial court observed that the posse-man was "the same thing” as a deputy sheriff. The prosecution has not taken issue with this, so we consider both Alder and Ogden to be law enforcement officers and sometimes refer to them both as deputies.

4 . The trial court’s order suppressing the statements is supported on the basis that they were obtained by custodial interrogation without the benefit of Miranda warnings. Therefore, we need not consider whether the court correctly concluded that the statements were also involuntary.