In a 4-to-3 decision, the Colorado Supreme Court on Monday said an Aspen police detective did not illegally remain in the residence of the defendant in a cocaine-distribution case, reversing an Aspen judge’s ruling.
The high court’s ruling reinstates pivotal evidence against Andrian Arapu, 26, of Moldova. The Eastern European man faces eight to 48 years in state prison if convicted of cocaine distribution and possession charges while having a handgun.
Judge Gail Nichols of Pitkin County District Court ruled on Nov. 7 that Aspen police Detective Walter Chi outstayed the consent Arapu gave him to enter his Main Street apartment on April 6, 2011. Nichols ruled that Chi and other law enforcement officers were inside the residence illegally when a loaded pistol, nearly 42 grams of cocaine and other evidence were discovered.
Nichols suppressed that evidence, and Chief Deputy District Attorney Arnold Mordkin said in the Nov. 7 hearing that he could not prosecute Arapu without the evidentiary items. The next month, Mordkin appealed to the Colorado Supreme Court.
On the day of Arapu’s arrest, Chi and other Aspen police officers accompanied federal immigration agents to his apartment in the Copper Horse house. Arapu was suspected of being in the country illegally, and he has been in jail for nearly 14 months on a federal immigration hold and a $60,000 bond for the felony drug charges.
That morning, Arapu refused to let the federal agents inside, according to court documents and testimony. Chi testified that Arapu allowed him inside because they informally knew each other and the defendant considered the detective to be fair.
Chi remained inside after Arapu was taken into immigration custody, and he questioned a woman who also was in the apartment. Nichols ruled that Chi — who testified that Arapu allowed him to remain behind to collect his cell phones and keys, and to lock up — stayed beyond the scope of the consent he was given.
At some point, other officers went inside without Arapu’s permission, and one discovered cocaine in a duffel bag and the handgun, which was allegedly underneath an Aspen Police Department hat. U.S. Immigration and Customs Enforcement officers also entered the home to further question the woman.
A reasonably objective person would not conclude that Arapu consented to have Chi remain in the apartment after the detective had the keys and the phones, Nichols wrote in her ruling. The manner in which the alleged cocaine and gun were found violated the Fourth Amendment, Nichols found.
But state supreme court Justice Allison Eid, writing for the majority, said Chi, because he had been invited in, was allowed to ask the woman for her identification. As for staying after Arapu was in custody, the high court “holds that a suspect who consents to a law enforcement officer remaining inside his dwelling — to gather belongings and to secure the dwelling — permits the ... officer to remain in the apartment until all law enforcement personnel have left the dwelling,” Eid wrote.
The court also reversed Nichols on the suppression of the firearm, ruling that it would have been discovered when the search warrant for the drug evidence was carried out. Under state law, the gun means mandatory minimum prison sentences if Arapu is convicted on the distribution and possession counts, Mordkin said.
But Chief Justice Michael Bender, who wrote the dissenting opinion, said Nichols’ ruling was based on credible evidence and thus did not meet the standard of being “clearly erroneous.”
The appeal hinged on two issues: What permission did Arapu give Chi and did the detective exceed that consent? These are not questions of law but factual determinations, which are made primarily at the district court level, Bender wrote.
“Accordingly, we afford [trial courts] great deference and will not disturb them unless it can be said that they are unsupported by the record and thus clearly erroneous,” the chief justice wrote.
Because Nichols’ ruling “is supported by competent evidence from the record,” her decision to suppress the evidence uncovered as the fruit of an illegal search “was not clearly erroneous,” the dissent filing says.
Nichols will now have to put Arapu’s case back on the docket schedule and set a trial date if no plea agreement is reached, Mordkin said Monday.
Arapu’s attorney, John Van Ness of Woody Creek, said he and his client were analyzing the court’s ruling.
“We’re trying to find some logic in what they’re saying,” he said.
Van Ness said most striking to him was the justices’ determination about a police officer’s right to stay until all other authorities have left even if they are there unconstitutionally.
Nichols had ruled that the other law enforcement officers’ entry into the apartment was unconstitutional, but the high court’s majority opinion did not address that.
“We’ll be seeing what’s involved in filing an appeal to the U.S. Supreme Court,” he said. “If it’s going to take two or three years, we’re probably not going to do it.”
Defendants also can ask the state high court for a rehearing, though such requests are rarely granted, Van Ness said.
chad@aspendailynews.com