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Hopp & Flesch11/21/2005
a witness. § 13-90-118(2), (3), C.R.S. (2005). Officials of the sheriff's department are not listed among those that may request immunity.
However, as the court of appeals correctly noted, an official not listed in section 13-90-118 may make an offer of immunity that can be made binding on the government if that official has apparent authority to make such an offer. Back-street, 107 P.3d at 1025 (citing People v. Romero, 745 P.2d 1003 (Colo. 1987)). In the context of unreasonable search and seizure, we explained that "apparent authority is not authority at all, but merely the appearance of authority." Petersen v. People, 939 P.2d 824, 830 (Colo. 1997). Thus, under the apparent authority doctrine, although the sheriff's office was not authorized to offer Back-street use immunity, a court can impose a valid grant of use immunity under certain circumstances. Nevertheless, we disagree with the court of appeals' conclusion that the facts in this case meet the requirements of the apparent authority doctrine.
In People v. Fisher, this court set forth the criteria for determining whether a person accused of criminal conduct may enforce an offer of immunity by an official not listed in section 13-90-118. 657 P.2d 922 (Colo. 1983). To assess whether such an offer of immunity is binding, three inquiries must be made: (1) whether the defendant's privilege against self-incrimination is implicated; (2) whether the defendant "reasonably and detrimentally relied upon [the government official's] promise by performing his side of the bargain;" and (3) whether a "remedy short of actual enforcement [of the promise] would . . . approximate fundamental fairness." Id. at 927-28.
In assessing whether the circumstances of this case meet the Fisher test, the court of appeals relied on previous decisions of this court --- Romero, 745 P.2d 1003; People v. Manning, 672 P.2d 499 (Colo. 1983); and Fisher, 657 P.2d 922. The court of appeals concluded that the sheriff's department in this case was like the government officials in those cases, who had made offers of use immunity that could be found binding under the apparent authority doctrine. Back-street, 107 P.3d at 1026. However, the cases cited by the court of appeals are distinguishable from this case and we deem them inapposite.
The circumstances in each of those cases met all the Fisher requirements, specifically the second requirement of detrimental reliance. Fisher was represented by counsel, but his lawyer was not present at the time government officials promised that his statements would not be used in subsequent criminal prosecutions. Neither Romero nor Manning was represented by counsel at the time government officials offered them immunity. Consequently, Fisher, Romero, and Manning made statements detrimentally relying upon those promises. Had the defendants in those cases been assisted by counsel and been advised that those officials did not have statutory authority to offer binding immunity, they could not have relied on the offers. Thus, a finding of use immunity under the apparent authority doctrine could only apply in a context, unlike this case, in which a defendant was not assisted by counsel.
Because Back-street was advised by Flesch regarding the sheriff's office's promise that any statements she made during the internal investigation would not be used in a criminal proceeding, apparent authority cannot apply here. In effect, Flesch counseled Back-street not to participate in the internal investigation because the sheriff's advisement was insufficient to prevent her statements from being used in criminal proceedings. Based upon that advice, Back-street chose not to rely at all on the promise of the sheriff's office;
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