People v. Bell

• Decision Date: 15 April 1985
• Docket Number: No. 84SA104,84SA104
• Citation: 698 P.2d 269
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph A. BELL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 269

698 P.2d 269

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph A. BELL, Defendant-Appellee.

No. 84SA104.

Supreme Court of Colorado,

En Banc.

April 15, 1985.

Norman S. Early, Jr., Dist. Atty., Brooke Wunnicke, Chief Deputy Dist. Atty., William P. Buckley, Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Scott D. Wolfe, Deputy State Public Defender, Denver, for defendant-appellee.

KIRSHBAUM, Justice.

The People, pursuant to C.A.R. 4.1 and section 16-12-102, 8 C.R.S. (1978), appeal the trial court's order prohibiting the introduction of certain evidence by the prosecution against the defendant, Joseph A. Bell, in a pending criminal prosecution. The trial court in essence concluded that a police officer's decision to stop a vehicle in which defendant was a passenger was not based upon reasonable suspicion that the defendant had recently engaged in criminal conduct. We reverse.

Defendant was charged with one count of unlawful distribution, manufacturing, dispensing, sale and possession of a controlled substance. ¹ He filed a motion to suppress all of the prosecution's evidence on the ground that it was obtained as a result of an unlawful seizure without a search warrant in violation of section 16-3-103, 8 C.R.S. (1978 & 1984 Supp.), Crim.P. 41, and the Colorado and federal constitutions. At the hearing on defendant's motion, the following facts were established.

On November 1, 1983, at approximately 11:15 p.m., Denver Police Department Officer Frank Padilla received a police radio broadcast describing an offense that had just occurred in the parking lot of a White Spot restaurant located at 601 East Colfax Avenue. Officer Padilla and his partner responded by motorcycle to the call within five or six minutes and spoke with the victim. The victim related that he had been speaking with a black man who had a scraggly beard and a rather large Afro hairstyle, when the man threatened him with a gun. The victim said that he ran into the White Spot to call the police, and that when he returned to his car his briefcase was missing.

Officer Padilla got on his motorcycle and began patrolling the immediate area. Shortly thereafter he noticed an automobile leaving from behind a lounge located next to the White Spot. Officer Padilla testified that he "looked into the back seat of the car ... and I noticed in the back seat was a black male with a bearded face [who] had somewhat of a large Afro--it wasn't a short Afro--and he looked back at me and kind of, he looked startled. He looked frightened and ... he looked away and then he looked back at me...." As the car continued down the street, the man in the back seat, who is the defendant, turned and lowered himself, as if to hide. Officer Padilla then drove up to the right-hand side of the automobile and stopped it approximately one block away from the White Spot. As he stopped the vehicle, Padilla noticed that a police patrol car with flashing lights had appeared behind him.

Among the occupants of the patrol car was Denver Police Department Officer Dale Wallis. ² Officer Wallis testified that from his seat in the police car he saw defendant attempt to lie down as Officer Padilla approached the vehicle. Officer Wallis also testified that as the automobile stopped he saw defendant reach with his right hand into a pocket of his coat, pull something out, and place that item on the car seat.

When the three occupants of the vehicle exited at Officer Padilla's request, Officer Padilla patted defendant down, but found no weapons on his person. At this point Officer Wallis informed Officer Padilla that defendant had removed something from a coat pocket and had dropped it on the back seat of the automobile. Believing that the item might be a weapon, Officer Wallis approached the car and observed a plastic package lying on the back seat. The package contained a white powder later identified as a controlled substance. Officer Wallis seized the package, and Officer Padilla then placed defendant under arrest for possession of a controlled substance. ³

At the conclusion of the suppression hearing, the trial court noted that the facts presented a close case, but that the decisive circumstance was the discrepancy between the description of the suspect and the actual physical appearance of defendant. With regard to this factor, the trial court stated as follows:

Well, I would make the finding that concerns me the most, and that is that the officer was told that the suspect had a bearded face and there was reference to a scraggly beard and a large [A]fro and that he was a Negro. And Officer Padilla, who was on a motorcycle, came alongside of the car in which the Defendant was in the back seat; he looked into the back seat and he said he saw a person that fit the description.

But we have a photograph, which is Defendant's Exhibit 1, of the Defendant and shows that he has no beard, he does have a mustache, and I would hardly say that it is a large [A]fro. So I feel that there are two elements lacking as far as the Defendant fitting the description of the person that they were seeking, not having a large [A]fro and not having a beard, and he looked in and could see apparently in the car.

And in the Court's view, that is not sufficient evidence to warrant a Stone stop. I'm basing it essentially on the description that was given to Padilla as the description of the person who had committed this crime.

....

Now, I, of course, would find that the vehicle was very near where this crime had been committed ... and that, of course, is grounds for a Stone stop and made it difficult for the Court. It was right in the vicinity where the crime was committed and very shortly thereafter. But I feel that the Defendant not fitting the description is sufficient to concern the Court and not be able to make that full finding and to warrant the Stone stop.

The trial court then granted the motion to suppress the evidence.

As the trial court recognized, in limited circumstances a police officer having less than probable cause to arrest may nevertheless subject an individual to a limited investigatory stop consistent with the requirements of the Fourth Amendment of the United States Constitution, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the protections against warrantless governmental intrusions contained in article II, section 7, of the Colorado Constitution. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). See § 16-3-103, 8 C.R.S. (1984 Supp.). Three conditions must exist to justify such an investigatory stop: (1) the police officer must have an articulable and specific basis in fact, i.e., a reasonable suspicion, for suspecting that criminal activity has occurred or is about to occur; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Wells, 676 P.2d 698 (Colo.1984); People v. Tate, 657 P.2d 955 (Colo.1983); Stone, 174 Colo. 504, 485 P.2d 495. As we formulated the rule in Stone: "when an officer reasonably suspects that the person has committed a crime or is about to commit a crime and the officer has not identified the person he legally may stop him to question him about his identity." 174 Colo. at 509, 485 P.2d at 497.

At the heart of the reasonableness limitation lies the requirement that any seizure permitted in circumstances not constituting probable cause must be based upon specific, objective and articulable facts showing that society's legitimate interests require the seizure. People v. Smith, 620 P.2d 232 (Colo.1980). The nature and extent of the governmental interests involved in effecting the stop must be balanced against the affected individual's constitutional right to protection from unreasonable searches and...