Colorado Supreme Courts Grants Petition for Writ of Certiorari in Fourth Amendment Case

The Colorado Supreme Court granted on Monday en banc a petition for writ of certiorari in a case involving the Fourth Amendment.

In August 2021, the Colorado Court of Appeals unanimously affirmed a judgment involving the reentry of a police officer into a home after getting consent to enter it initially. 

Appeals court records state Sergeant Betsy Westbrook of the Arvada Police Department responded to a disturbance report involving 17-year-old N.M. who claimed his mother Adrienne Stone threatened him with a knife. Westbrook asked to speak with N.M. inside the house and N.M. complied. When inside the home Westbrook noticed a stairway filled with items that blocked free movement. Westbrook also claimed the kitchen and living room were cluttered and a young child was seen crawling over a baby gate set up between the living room and kitchen.

Eventually, N.M. showed Westbrook the knife Stone was accused of threatening him with. Westbrook took photographs with her cell phone of the knife and left to get a department-issued camera out of her vehicle in order to take better pictures of the interior of the house. 

When Westbrook stepped outside Stone arrived at the house and then Westbrook reentered the home without her camera. A school resource officer at N.M.’s school also arrived and entered the home with N.M., observing the clutter. Jefferson County protection services were contacted and a staff member went into the home and determined it was unfit for children and the kids needed to be removed. More law enforcement also entered the house afterward.

Stone was charged with felony menacing, seven counts of child abuse and one count of a violation of a protection order. One count of child abuse was later dropped because N.M. wasn’t under the age of 16 at the time of the alleged abuse.

Stone filed a pretrial motion suppressing evidence of the knife and the condition of the house arguing law enforcement officers conducted a warrantless search of her residence without probable cause or her consent and all evidence from the search should be suppressed. The trial court ruled the initial entries into the house of Westbrook and the resource officer were lawful because N.M. voluntarily gave them consent. 

The trial court further concluded other officials’ entry into the home violated the Fourth Amendment. The trial court excluded evidence obtained through their action which included photographs. 

Stone was found guilty on all counts and appealed. Stone contended N.M. was a minor at the time and lacked the authority to allow a law enforcement officer into the house and even if N.M. had such authority, his consent didn’t extend to Westbrook’s reentry. The appeals court wasn’t persuaded, saying there are multiple factors concerning consent, not just someone’s age, including the totality of the circumstances.

The appeals court further concluded that absent an objection to subsequent closely related entries and searches, the initial consent can be extended to more entries, as long as it’s close in time when concerning the initial entry. There was also no evidence N.M. revoked his consent. 

Stone also appeared to challenge the admissibility of the resource officer’s testimony, arguing they entered the house illegally. The appeals court wrote Stone doesn’t provide any citations to the record or legal authority in support of her argument, adding for those reasons, the appeals court didn’t address it on the merits.

The petition for writ of certiorari looks at whether an occupant’s consent to a law enforcement officer’s entry into someone’s home for one purpose extends to the officer’s reentry into the home for a different purpose after the officer left the residence briefly.

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