Outlaw v. People, No. 99SC662.

• Citation: 17 P.3d 150
• Decision Date: 22 January 2001
• Docket Number: No. 99SC662.
• Parties: Marvin A. OUTLAW, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

17 P.3d 150

Marvin A. OUTLAW, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 99SC662.

Supreme Court of Colorado, En Banc.

January 22, 2001.

As Modified on Denial of Rehearing February 5, 2001.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, CO, Attorneys for Petitioner.

Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, CO, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

In this Fourth Amendment seizure case, we granted certiorari to review the court of appeals' decision in People v. Outlaw, 998 P.2d 20 (Colo.App.1999).¹ The trial court denied Marvin Outlaw's motion to suppress evidence, and a jury convicted him of one count of possession of a schedule II controlled substance (cocaine), a class four felony, see § 18-18-405(2)(a)(I), 6 C.R.S. (2000), and several habitual criminal counts, see § 16-13-101(2), 6 C.R.S. (2000). The court of appeals determined that Outlaw had failed to meet his burden of showing by a preponderance of the evidence that the police "seized" him within the meaning of the Fourth Amendment. We hold that, while a defendant has the initial burden of going forward with evidence to support his suppression motion, Outlaw met that burden. Under the undisputed facts of this case, the police unconstitutionally seized Outlaw, and the trial court should have granted his suppression motion.

I.

On the evening of April 30, 1997, two Denver Police officers (the officers) were patrolling Denver's Five Points neighborhood. The officers were driving a marked patrol car and were wearing Denver Police uniforms.

At approximately 6:20 p.m., the officer driving the patrol car stopped at a red light on northbound Welton Street at the Five Points intersection.² It was still daylight. While stopped, the officers in the patrol car observed four individuals — two men and two women — standing outside the 715 Club, a bar on 26th Avenue. The officers did not recognize any of the individuals, nor did they know how long the group had been standing outside the bar. They did not see the individuals exchange anything. The officers were approximately thirty-five to forty-five yards away from the individuals when they saw them.

The individuals noticed the patrol car and began walking east on 26th Avenue. The officers turned the patrol car east onto 26th Avenue to follow them. Crossing the westbound lane of 26th Avenue, the officer operating the patrol car drove it onto the sidewalk behind the four individuals. They continued to walk, with the patrol car following directly behind them.

The patrol car slowly followed five feet behind the group for a distance of twenty or thirty feet. Outlaw was closest to the patrol car. The officer driving the patrol car noticed that Outlaw's right hand was open but his left hand was closed in a fist. This officer concluded that Outlaw was holding something in his left hand. He navigated the patrol car back onto the street, into the westbound lane of traffic. He drove slowly eastbound in this lane, following alongside Outlaw for another ten to fifteen feet as Outlaw walked down the sidewalk. The officer then stopped the car and summoned Outlaw, by saying either "Can you come over to the vehicle" or "Come over to the vehicle."³ He used a conversational tone of voice. Outlaw complied. He turned and walked to the patrol car.

As Outlaw approached the car on the driver's side, his left hand remained closed. The officer saw what appeared to be a small piece of clear plastic protruding from that hand.⁴ Outlaw then made a sweeping motion with his closed hand, dropping it out of view for a moment. This hand was open and empty when it came back into the officer's view.

The police exited and secured Outlaw near the rear of the patrol car. They recovered two baggies of what they suspected to be crack cocaine on the ground near the patrol car. The district attorney charged Outlaw with one count of possession of a schedule II controlled substance (cocaine). See § 18-18-405(2)(a)(I).

Outlaw filed a motion to suppress all evidence in the case as the product of an illegal seizure of his person. He argued that the encounter was a non-consensual, investigatory stop conducted without reasonable suspicion. Because his stop violated the Fourth Amendment, Outlaw asserted that the trial court should have suppressed all evidence stemming from it.

The trial court ruled that the encounter was consensual; hence, not in violation of the Fourth Amendment. It alternatively ruled that the police had reasonable suspicion for the stop. Under habitual offender sentencing, Outlaw received twenty-four years in the Colorado Department of Corrections upon conviction.

The court of appeals affirmed. See Outlaw, 998 P.2d at 22. It concluded that Outlaw had the burden of proving by a preponderance of the evidence that a "seizure" had occurred. See id. at 24. Calling the issue "extremely close," the court of appeals concluded that the encounter was consensual, and upheld Outlaw's conviction. Id.⁵

II.

The United States and Colorado Constitutions protect against unreasonable searches and seizures. See U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7; People v. Garcia, 11 P.3d 449, 453 (Colo. 2000). However, they apply only when police contact "impermissibly intrudes upon an individual's personal security or privacy." People v. Melton, 910 P.2d 672, 676 (Colo.1996); see also People v. Paynter, 955 P.2d 68, 71 (Colo.1998). As the United States Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968), "[O]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred."

Police-citizen encounters are of three different types: (1) arrests; (2) investigatory stops; and (3) consensual encounters. See, e.g., People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.2001); People v. Cascio, 932 P.2d 1381, 1385 (Colo.1997); People v. Padgett, 932 P.2d 810, 813 (Colo.1997). Each of these categories requires "varying levels of justification and protection." Cascio, 932 P.2d at 1385. While arrests and investigatory stops are seizures implicating the protections of the Fourth Amendment and Article II, section 7, consensual encounters are not. See id. We first review the allocation of the burden of going forward and the burden of proof in suppression hearings. We then discuss the characteristics of consensual encounters and investigatory stops. Based upon the facts known to the police at the time of Outlaw's detention, we conclude that an impermissible seizure occurred in violation of the Fourth Amendment.

A. Burden of Going Forward and Burden of Proof

At a suppression hearing, as the moving party, the defendant has the burden of going forward with evidence of an impermissible seizure. See People v. Jansen, 713 P.2d 907, 911 (Colo.1986); see also United States v. de la Fuente, 548 F.2d 528, 534 (5th Cir. 1977) ("[T]he defendant must first discharge his initial burden of producing some evidence on specific factual allegations sufficient to make a prima facie showing of illegality."). This burden requires the defendant to make two different showings: (1) the point at which he was "seized" within the meaning of the Fourth Amendment; and (2) that the seizure was unconstitutional. See United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir.1994).

When the defendant comes forward with evidence of a seizure, the fact that police proceeded without a warrant places the burden on the prosecution to demonstrate the encounter's legality. See People v. P.E.A., 754 P.2d 382, 385 (Colo.1988) (holding that a warrantless seizure is presumptively illegal).

Accordingly, if Outlaw showed sufficient facts, the burden of going forward shifted to the prosecution. See Jansen, 713 P.2d at 911. The burden of proof always remains with the prosecution "to establish that warrantless conduct on the part of the officers falls within one of the narrowly defined exceptions to the warrant requirement." Id.; see also People v. Canton, 951 P.2d 907, 909 n. 3 (Colo.1998) ("When police detain a person without a warrant, the burden of proof is on the prosecution to prove the constitutional validity of the stop and any subsequent search."); Carhee, 27 F.3d at 1496.

The police had no warrant here. We therefore focus our inquiry first on whether Outlaw put forth sufficient evidence of an illegal seizure. We defer to a trial court's findings of historical fact and will not disturb them if supported by competent evidence in the record. People v. D.F., 933 P.2d 9, 14 (Colo.1997). However, we will correct a lower court's use of an erroneous legal standard or a conclusion of law that the uncontroverted evidence contradicts. Id.

B. Consensual Encounter

In a consensual encounter, the individual voluntarily cooperates with the police and is free to leave at any time. See Cervantes-Arredondo, at 17 P.3d at 147-148; Cascio, 932 P.2d at 1385. The test is whether a reasonable person under the circumstances would believe that he or she was free to leave or disregard the officer's request for information. See People v. Thomas, 839 P.2d 1174, 1177-78 (Colo.1992). This test is objective in nature, based on the factual circumstances surrounding the encounter. See Paynter, 955 P.2d at 72. Inherent social pressure to cooperate with the police is not itself a sufficient basis for declaring the encounter non-consensual. See People v. Johnson, 865 P.2d 836, 842 (Colo.1994).

Because the touchstone of the Fourth Amendment is reasonableness measured in objective terms, a court must consider the totality of the circumstances in determining whether the police exercised force or authority to effectuate the stop, or whether the police merely...