People v. Bookman

• Decision Date: 21 June 1982
• Docket Number: No. 80SC116,80SC116
• Citation: 646 P.2d 924
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Ben Earl BOOKMAN, Respondent.
• Court: Colorado Supreme Court

Page 924

646 P.2d 924

The PEOPLE of the State of Colorado, Petitioner, v. Ben Earl BOOKMAN, Respondent.

No. 80SC116.

Supreme Court of Colorado, En Banc.

June 21, 1982.

Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Steven R. Polidori, Deputy Dist. Atty., Littleton, for petitioner.

J. Gregory Walta, State Public Defender, Norman R. Mueller, Shelley Gilman, Deputy State Public Defenders, Denver, for respondent.

LEE, Justice.

We granted certiorari to review the decision of the court of appeals in People v. Bookman, Colo.App., 615 P.2d 44 (1980), which reversed the defendant's conviction by a jury of reckless manslaughter, section 18-3-104(1)(a), C.R.S.1973 (1978 Repl. Vol. 8). We reverse the judgment of the court of appeals and remand with directions.

The defendant, Ben Earl Bookman, Jr., was initially charged with two counts of first degree murder, one count of violent crime, one count of first degree sexual assault, and one count of abuse of a corpse. He entered a guilty plea to the misdemeanor charge of abuse of a corpse, section 18-13-101, C.R.S.1973. After a preliminary hearing, the court found probable cause only as to the lesser included offense of second degree murder. The information was then amended to charge the defendant with two counts of second degree murder, section 18-3-103(1)(a) and (b), C.R.S.1973, ¹ and violent crime, section 16-11-309, C.R.S.1973. After a jury trial the defendant was convicted of reckless manslaughter, section 18-3-104(1)(a), C.R.S.1973 (1978 Repl. Vol. 8).

The events giving rise to the charges were as follows. Shirley Maxine Jones failed to return home from an evening with friends on June 10, 1977. Her body was discovered June 17, 1977 partially buried in a shallow grave by the Cherry Creek Reservoir in Arapahoe County.

Deana Searcy testified that she and the deceased had gone to a dance at the YMCA on June 10, 1977 between 10:30 and 11:00 p. m. where they met the defendant and Kenneth L. Body. Later that evening and through the early morning hours of June 11, the four, along with another young woman, drove around in the defendant's car, visited various bars, and consumed alcoholic beverages. Searcy testified that she was driven to her home at approximately 5:05 a. m. by the defendant, the victim, and Ken Body. Body testified that he was taken home soon thereafter. He confirmed Searcy's account of the previous evening.

On June 19, 1977, after a lengthy interrogation by law enforcement officers, the defendant made incriminating statements, a tape and transcription of which were admitted in evidence over the defendant's objection. The defendant acknowledged he had been with the victim the night of June 10 and early morning of June 11. He stated that after their companions had been dropped off at their homes, he and the victim parked at a lot in east Denver where they engaged in sexual relations. He asserted that the victim had made the sexual overtures to him, but when he could not continue, she commenced kicking and striking him. During the ensuing struggle, he seized her by the neck for approximately thirty seconds to subdue her and she stopped struggling. He then drove to the Cherry Creek Reservoir and left her body resting against a tree. He returned the next morning and buried the body in a shallow grave.

The defendant filed a motion to suppress all statements elicited from him by the police officers on June 19, 1977 and all physical evidence observed or taken by law enforcement officers that day, contending that all were obtained as a result of an illegal arrest.

After a pre-trial suppression hearing, the court refused to suppress the statements, finding that the lengthy questioning of the defendant, which occurred in a patrol car, did not constitute an arrest, that the subsequent search of the defendant's car was a valid search, made with the written consent of the defendant, and that the defendant's first confession was voluntary and provided probable cause for his arrest, after which further statements were obtained from him.

The court of appeals reversed, holding that the defendant's Fourth Amendment rights had been violated. It found that the defendant had been illegally arrested at the time he was taken to the patrol car for questioning, since the interview in the car was a detention, without probable cause to arrest. Although a Miranda advisement was given at the beginning of the questioning and again later, the appellate court held that such advisement could not remove "the taint of an illegal arrest, nor break the causal connection ... between an unlawful detention and a confession." People v. Bookman, supra, 615 P.2d at 46. Accordingly, the court of appeals ordered suppression of the statement and the other evidence seized. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); People v. Bates, 190 Colo. 291, 546 P.2d 491 (1976).

I.

The evidence showed that the defendant's statements were made in the following circumstances. On June 19, 1977, at approximately 1:45 p. m., Arapahoe County law enforcement officers, who had previously learned that Bookman had been with the victim, contacted him at a restaurant where he worked and requested that he talk with them about the events of June 10 and 11. The defendant agreed to do so. The restaurant manager offered the use of his office for the questioning. The officers, however, declined and took the defendant to an unmarked patrol car in the parking lot. Other officers arrived at the scene but remained in another car. The officers fully advised the defendant pursuant to the Miranda requirements. ²

The defendant told the officers that he had to meet his family for a pre-arranged Father's Day dinner within a very few minutes. ³ The defendant, however, remained in the patrol car. He sat in the passenger side of the front seat with the doors closed but unlocked, and with the air conditioner running. Detective Klein was at the wheel and Detective Tucker remained in the back seat.

After approximately forty-five minutes of questioning, the officers asked to search the defendant's car which was in the same parking lot. He agreed to the search and signed a written consent form. Detective Tucker left the car to perform the search of the defendant's vehicle, and he was joined by the other officers. Traces of a substance thought to be blood were observed in the defendant's car. ⁴ Other officers and laboratory technicians, as well as two district attorneys and a tow truck, were summoned to the scene. The car search was conducted from approximately 2:30 p. m. until 5:40 p. m., and the defendant remained in the patrol car under continuous questioning during that period.

At approximately 5:45 p. m., Detective Tucker and Sheriff's Officer Burgess got into the car. Tucker asked the defendant about his psychiatric record and the defendant indicated that he wanted help. Tucker informed him that the police could get psychological help for him.

Officer Burgess then asked the defendant, "Was it an accident?" and the defendant replied "Yes." Tucker obtained a tape recorder from the district attorney and the defendant's statement was taped. Detectives Klein and Tucker then drove around the Denver area with the defendant retracing his path of the early morning hours of June 11 until they reached the Cherry Creek Reservoir and the defendant showed them where he had placed the body. The defendant was taken to the police station at approximately 8:00 p. m. and interrogation continued until he was allowed to see his parents at approximately 11:20 p. m The defendant contended that his Fourth Amendment rights had been violated by the prolonged detention by the Arapahoe County law enforcement officers in the custodial setting of their police car. The court of appeals agreed, holding that the defendant had been arrested without probable cause at the time the detectives had "escorted the defendant from the restaurant to the police car," and that the motion to suppress should therefore have been granted.

II.

The primary issue before this court is whether the trial court applied the appropriate constitutional standard in determining that "the questioning of the defendant in the patrol car did not constitute an arrest," and in concluding that the defendant's Fourth Amendment rights were not unconstitutionally infringed.

In United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980), Justice Stewart, in defining the term "seized" in the Fourth Amendment context, stated:

"We adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' United States v. Martinez-Fuerte, 428 U.S. 543, 554 (96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

"Moreover, characterizing every street encounter between a citizen and the police as a 'seizure,' while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. 'Without such investigation, those who were innocent might be falsely accused, and those who were guilty might wholly escape p...