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People v. Mendez

Court of Appeals of Colorado, Fifth Division

October 19, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Victor Manuel Mendez, Defendant-Appellant.

         Adams County District Court No. 13CR1830 Honorable John E. Popovich, Judge

          Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Meredith Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          ROMÁN JUDGE.

         ¶ 1 Defendant, Victor Manuel Mendez, appeals the judgment of conviction entered after a jury found him guilty of distribution of a schedule II controlled substance. Mendez asserts the use of video surveillance inside his home constituted an unreasonable search in violation of the Fourth Amendment to the United States Constitution. In a case of first impression in Colorado, we conclude that the use of video surveillance by a confidential informant (CI) when the CI is invited into the surveilled area does not violate the Fourth Amendment. Mendez also challenges as abuses of discretion the district court's remedy for a discovery violation and the jury's unfettered access to certain evidence during deliberations. We affirm.

         I. Background

         ¶ 2 A CI approached a police investigator with a potential target for a controlled drug buy. The CI informed the investigator that he knew someone with several pounds of methamphetamine. The CI had previously worked with Colorado drug task forces in exchange for financial compensation. But in this case, the CI also inquired whether the investigator would be able to help him with his immigration status. The investigator said he would look into the request but never got back to the CI.

         ¶ 3 In the meantime, the investigator arranged for the CI to purchase methamphetamine from Mendez in a controlled drug buy. Prior to the buy, police strip-searched the CI and found no drugs on his person. With the CI's consent, police equipped him with an audio recording wire, as well as a concealed video camera. The video camera was capable of recording both audio and video transmissions. The investigator then drove the CI to Mendez's apartment, gave him $100.00 to purchase methamphetamine, and waited in a nearby vehicle.

         ¶ 4 During the controlled buy, audio from the CI's wire was transmitted simultaneously to the police. The audio and video transmissions from the video camera were not transmitted simultaneously, although police were able to view the video recording after the buy had been completed.

         ¶ 5 When the CI returned to the police vehicle after the buy, he gave the investigator a plastic container of methamphetamine and $80.00 in cash, was taken to the police station, and was strip- searched a second time. The People then charged Mendez with distribution of a schedule II controlled substance.

         ¶ 6 Prior to trial, Mendez filed a motion to suppress evidence obtained during the CI's entry into his apartment, arguing that the use of video surveillance constituted an unlawful search of his home under the Fourth Amendment. The district court denied the motion, concluding that because Mendez consented to the CI's entry into his home, the Fourth Amendment was not implicated. Mendez did not challenge the evidence as an unlawful search under the Colorado Constitution.

         ¶ 7 At trial, the People presented testimonial evidence from the CI and the investigator, as well as the video recording (which included audio), several photos taken from the video recording, and a written transcript of the audio taken from the video recording. The transcript included the conversation held between Mendez and the CI, translated from Spanish into English. In the conversation, Mendez stated he did not have $100.00 worth of methamphetamine but could sell $20.00 worth of methamphetamine to the CI. A photo from the recording showed Mendez, wearing a red and white striped shirt, in his apartment. Another photo showed a man wrapping something in plastic, and, while his face was not visible, the man was wearing the same shirt.

         II. Analysis

         ¶ 8 Mendez contends his conviction must be reversed because (A) the video recording of the controlled buy should have been suppressed as the result of an unreasonable search under the Fourth Amendment; (B) the district court failed to provide an adequate remedy for a discovery violation; and (C) the district court abused its discretion in failing to limit the jury's access to the video recording and transcript during deliberations. We discern no reversible error.

         A. Warrantless Search

         ¶ 9 According to Mendez, the district court erred in denying his motion to suppress the video recording of the controlled drug buy. Specifically, he asserts the use of video surveillance inside his home constituted an unreasonable search in violation of the Fourth Amendment.[1] We are not persuaded. Rather, we agree with several federal circuits that have addressed this issue.

         1. Standard of Review

         ¶ 10 Our review of a district court's denial of a motion to suppress presents mixed questions of law and fact. People v. Martin, 222 P.3d 331, 334 (Colo. 2010). Although we defer to the district court's factual findings where there exists sufficient evidence in the record to support them, we review the district court's conclusions of law de novo. Id.

         2. Applicable Law

         ¶ 11 The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV; People v. Allison, 86 P.3d 421, 426 (Colo. 2004). The central inquiry in determining whether the Fourth Amendment applies "is whether the defendant had a reasonable expectation of privacy from government intrusion in the area searched." People v. Galvadon, 103 P.3d 923, 924 (Colo. 2005).

         ¶ 12 "As the Supreme Court has recognized, '[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'" Hoffman v. People, 780 P.2d 471, 474 (Colo. 1989) (alteration in original) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). "This principle applies with equal force to statements knowingly exposed to government informants." United States v. Longoria, 177 F.3d 1179, 1182 (10th Cir. 1999).

         ¶ 13 Thus, a "defendant does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to police." People v. Strozzi, 712 P.2d 1100, 1102 (Colo.App. 1985). Likewise, an informant "who conceals his police connections may either report or record a conversation with a defendant without violating defendant's Fourth Amendment rights." Id. (emphasis added); see also United States v. White, 401 U.S. 745, 749 (1971) (holding that a defendant has no reasonable expectation of privacy regarding conversations held in his home and audio-recorded by a third party).

         3. Discussion

         ¶ 14 Mendez concedes that audio surveillance by a CI welcomed into his home does not violate the Fourth Amendment. But he urges that video surveillance is different, as it allows police to "essentially gain virtual entry into the apartment in the form of a video camera." Thus, according to Mendez, the CI's use of video surveillance in this case was an unreasonable search.[2]

         ¶ 15 We disagree and note, as a federal circuit court observed in affirming a district court's language, "every federal appellate court to decide the issue [has] concluded that there is no constitutionally relevant distinction between secret audio and video recordings when the informant gathers the information from a location where he is lawfully entitled to be." United States v. Thompson, 811 F.3d 944, 947 (7th Cir. 2016) (affirming district court's findings in United States v. Thompson, No. 14-CR-90-WMC, 2015 WL 667925, at *8 (W.D. Wis. Feb. 17, 2015)); see also United States v. Brathwaite, 458 F.3d 376, 380 n.4 (5th Cir. 2006) (collecting cases).

         ¶ 16 For example, in Brathwaite, the Fifth Circuit held that a defendant forfeited any privacy interests he may have had when he invited an informant, who videotaped the defendant's counterfeiting activities, into his home. 458 F.3d at 380-81. In so concluding, the court applied the same rationale to a CI's observations as has been applied to conversations with a CI: "[J]ust as [the defendant] gave up any expectation of privacy in the things that he allowed [the CI] to hear, [the defendant] also gave up any expectation of privacy in the things that he allowed [the CI] to see." Id. at 381 (quoting United States v. Lee, 359 F.3d 194, 201-02 (3d Cir. 2004)).

         ¶ 17 This logic tracks the reasoning applied by the Supreme Court with regard to the Fourth Amendment and electronic surveillance. See, e.g., White, 401 U.S. at 751 (holding that, just as an informant "may write down for official use his conversations with a defendant and testify concerning them, . . . no different result is required if the agent . . . records them with electronic equipment which he is carrying on his person"). As the Third Circuit observed: "The principle underlying the governing Supreme Court cases is that if a defendant consents to the presence of a person who could testify about a meeting and is willing to reveal what occurs, the defendant relinquishes any legitimate expectation of privacy with respect to anything . . . the testimony could cover." Lee, 359 F.3d at 201 (finding no "constitutional distinction between consensual audio and video surveillance").

         ¶ 18 The Second Circuit adopted the same approach in United States v. Davis, 326 F.3d 361, 363 (2d Cir. 2003). There, "videotape evidence, which merely showed scenes viewable by [a CI]" was not subject to the Fourth Amendment because "the hidden camera merely memorialized ...


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