People v. Bland, 94SA63
| Decision Date | 07 November 1994 |
| Docket Number | No. 94SA63,94SA63 |
| Citation | 884 P.2d 312 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Henry L. BLAND, Defendant-Appellee. |
| Court | Colorado Supreme Court |
A. William Ritter, Jr., Dist. Atty., Everett Engstrom, Deputy Dist. Atty., Denver, for plaintiff-appellant.
David F. Vela, State Public Defender, Angela Kruse, Deputy State Public Defender, Denver, for defendant-appellee.
The prosecution brings this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1994 Supp.), to challenge an order of the Denver District Court suppressing a packet of cocaine discovered during a search of the person of the defendant, Henry L. Bland, after he had been detained for possession of one ounce or less of marihuana. We hold that although subsection 18-18-406(2), 8B C.R.S. (1994 Supp.), requires an officer to issue a written notice or summons to a person possessing one ounce or less of marihuana and does not permit a custodial arrest and a full search of the person incident to such an arrest, the search at issue here was constitutionally permissible. Therefore, we reverse and remand the case to the district court for further proceedings consistent with this opinion.
A security guard at a Motel 6 located in Denver, Colorado, testified that on September 25, 1993, he observed a number of people entering and leaving room 306. Suspecting possible drug trafficking, the security guard reported this activity to the police. Thereafter, members of the Denver Police Department narcotics unit went to the motel and conducted a surveillance of room 306. The officers observed the room for approximately thirty minutes and, during that time, saw people entering, staying for a short time, and then leaving the room.
Officer Bolte testified that during the surveillance, he saw the defendant leave room 306 and go to the fourth floor of the motel. Officer Bolte followed, saw the defendant through a motel room window, and radioed the other officers to alert them that the defendant was in room 427. The defendant opened the door to room 427 and saw Officer Bolte talking on his radio. Officer Bolte testified that he identified himself as a police officer, displayed his badge, and asked the defendant if he could talk with him. As the district court found, the defendant then invited the officer into the room.
After entering the defendant's room, Officer Bolte asked him for identification and "who he knew or what he was doing in Room 306." The defendant said that his sister occupied room 306. Officer Bolte then asked him whether he had any weapons or narcotics in his room. The defendant responded by directing the officer's attention to two cigars that were on the table and stating: "Just that marijuana there." Upon breaking open one of the cigars, Officer Bolte determined that the cigar wrapping contained marihuana. The total amount of marihuana discovered was not more than one ounce.
At that point a second officer arrived at room 427. Shortly thereafter, the two officers observed a handgun in plain view on the floor under a chair near where they were standing. The officers retrieved the handgun and handcuffed the defendant. The officers then searched him and discovered a baggy in his groin area. According to Officer Bolte, "I pulled open [the defendant's] pants--or sweatpants type of thing--jogging suit--and I observed a plastic baggy in his genital area containing what I believed to be crack cocaine."
The defendant was subsequently charged with the possession of cocaine, 2 and as a special offender for having used, displayed, possessed, or had available for use a deadly weapon. 3 Following a preliminary hearing, the case was bound over for trial. Thereafter, the defendant moved to suppress the cocaine, arguing that section 18-18-406, 8B C.R.S. (1994 Supp.), requires an officer to issue a notice or summons to a person possessing one ounce or less of marihuana, but does not allow an officer to arrest a person for such an offense. The defendant argued, therefore, that the search of his person could not be justified as a search incident to a lawful arrest. He also argued that the search constituted an illegal strip search. The defendant contended that the search and the subsequent seizure of the cocaine violated both the United States Constitution and the Colorado Constitution. 4
The trial court granted the defendant's motion to suppress the cocaine, agreeing with him that Officer Bolte did not have authority to arrest him under section 18-18-406. Relying primarily on People v. Clyne, 189 Colo. 412, 541 P.2d 71 (1975), the trial court held that the search was illegal and the cocaine was not properly seized because under subsection 18-18-406(2) the officer could only restrain the defendant temporarily and issue a notice or summons for violating subsection 18-18-406(1).
Subsection (1) of section 18-18-406, 8B C.R.S. (1994 Supp.), classifies possession of not more than one ounce of marihuana as a class 2 petty offense punishable by a fine of not more than one hundred dollars. Subsection (2) of the statute prescribes the procedures to be followed by a police officer in initiating proceedings for violation of subsection (1):
(2) Whenever a person is arrested or detained for a violation of subsection (1) of this section, the arresting or detaining officer shall prepare a written notice or summons for such person to appear in court. The written notice or summons shall contain the name and address of such arrested or detained person, the date, time, and place where such person shall appear, and a place for the signature of such person indicating the person's written promise to appear on the date and at the time and place indicated on the notice or summons. One copy of said notice or summons shall be given to the person arrested or detained, one copy shall be sent to the court where the arrested or detained person is to appear, and such other copies as may be required by the law enforcement agency employing the arresting or detaining officer shall be sent to the places designated by such law enforcement agency. The date specified in the notice or summons to appear shall be at least five days after such arrest or detention unless the person arrested or detained demands an earlier hearing. The place specified in the notice or summons to appear shall be before a judge having jurisdiction of such class 2 petty offense within the county in which the class 2 petty offense charged is alleged to have been committed. The arrested or detained person, in order to secure release from arrest or detention, shall promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer. Any person who does not honor such written promise to appear commits a class 3 misdemeanor.
§ 18-18-406(2), 8B C.R.S. (1994 Supp.).
An apparent anomaly arises from the fact that the statute provides that a person may be arrested or detained for the possession of one ounce or less of marihuana and also provides that the arresting or detaining officer "shall" prepare a written notice or summons and that the suspect is to be released upon signing a promise to appear. The defendant argues that the statute requires an officer to issue a summons 5 but does not allow an officer to effectuate an arrest. The prosecution counters that the statute confers discretion upon an officer either to arrest an individual or to issue a summons. We disagree with both contentions and hold that the statute requires the officer to issue a summons and thus prohibits custodial arrests but does not prohibit non-custodial arrests and lawful searches incident to such arrests. 6 If Officer Bolte made a proper non-custodial arrest and search incident to that non-custodial arrest, the cocaine was properly seized.
When we construe a statute, we seek to ascertain and give effect to the intent of the General Assembly. E.g., Rowe v. People, 856 P.2d 486, 489 (Colo.1993); People v. Terry, 791 P.2d 374, 376 (Colo.1990). To determine legislative intent, we first look to the language of the statute. Terry, 791 P.2d at 376. Subsection 18-18-406(2) expressly states that "the arresting or detaining officer shall prepare a written notice or summons for such person to appear in court." The word "shall" is presumed to be mandatory. Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 947 (Colo.1993); People v. Clark, 654 P.2d 847, 848 (Colo.1982). 7 Additionally, subsection 18-18-406(2) sets out in detail the procedure for issuing the summons and prescribes its contents, thus supporting our conclusion that it was the intent of the General Assembly to require police officers to issue a summons under this subsection. Any possible doubt that issuance of a notice or summons is mandated, and that a custodial arrest is therefore not contemplated, is quickly dispelled by the further provision that "[t]he arrested or detained person, in order to secure release from arrest or detention, shall promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer." § 18-18-406(2).
Furthermore, in People v. Clyne, 189 Colo. 412, 414, 541 P.2d 71, 72 (1975), we noted that a modern policy has emerged favoring the issuance of citations and summonses over custodial arrests for minor offenses. See also II American Bar Association, ABA Standards for Criminal Justice, Standards 10-2.1 & 10-2.2 (2d ed. 1980 & 1986 Supp.); 2 Wayne R. LaFave, Search and Seizure § 5.1(h) (2d ed. 1987 & 1994 Supp.) (hereinafter cited as "LaFave"). The Colorado General Assembly has "given effect to this policy by requiring the issuance of a penalty assessment notice or summons in ordinary traffic violations." Clyne, 189 Colo. at 414, 541 P.2d at 72.
Because (i) subsection 18-18-406(2) states that the arresting or detaining...
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