November 17, 2017

Colorado Court of Appeals: Video Recording by Confidential Informant Need Not Be Suppressed per Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Mendez on Thursday, October 19, 2017.

Confidential Informant—Audio Recording—Video Recording—Fourth Amendment—Discovery Violation—Remedy—Evidence—Non-Testimonial—Jury Deliberations.

A confidential informant (CI) approached a police investigator with a potential target for a controlled drug buy. The investigator arranged for the CI to purchase methamphetamine from Mendez in a controlled drug buy with concealed audio and video. After the buy, the People charged Mendez with distribution of a schedule II controlled substance. Mendez moved to suppress evidence obtained during the CI’s entry into his apartment. The district court denied the motion.

On appeal, Mendez contended that his conviction must be reversed because the video recording of the controlled buy should have been suppressed as the result of an unreasonable search under the Fourth Amendment. The Colorado Court of Appeals concluded that the use of video surveillance by a CI in this case did not violate the Fourth Amendment. Mendez invited the CI into his apartment to engage in a drug transaction. Because Mendez consented to the CI’s presence in his home, he gave up any reasonable expectation of privacy in what the CI could observe or visually record. The district court properly denied the motion to suppress the resulting video recording.

Mendez next asserted that the district court abused its discretion by failing to provide an adequate remedy for a discovery violation. He argued that the prosecution’s failure to disclose a conversation between the CI and a police investigator about the Department of Homeland Security constituted a violation of his constitutional rights and the district court’s chosen remedy deprived him of a fair trial. As a sanction for the discovery violation, the district court ordered the investigator to make himself available for an interview with defense counsel to determine the scope of his representations to the CI. The district court denied defense counsel’s request that the CI be subject to recall for cross-examination. The district court’s discovery sanction was inadequate because Mendez was given no opportunity to cross-examine the CI about whether he believed he would receive immigration support from Homeland Security for his willingness to participate in the controlled buy. That belief could have been relevant to the CI’s motive, regardless of the investigator’s memory of the conversation. And the district court’s remedy did not cure that potential prejudice. Nevertheless, the district court’s error was harmless beyond a reasonable doubt and did not warrant reversal given the overwhelming evidence against Mendez at trial, and the fact that Mendez was able to successfully call the CI’s credibility into doubt by the end of trial.

Finally, Mendez argued that the district court abused its discretion in failing to limit the jury’s access to the video recording and transcript during deliberations. A district court need not limit juror access to non-testimonial evidence. It was not an abuse of discretion for the court to allow the jury unfettered access to the video recording and transcript.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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