People v. Bowles

• Decision Date: 16 April 2009
• Docket Number: No. 07CA2503.,07CA2503.
• Citation: 226 P.3d 1125
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deanna Lynn BOWLES, Defendant-Appellant.
• Court: Colorado Court of Appeals

226 P.3d 1125

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deanna Lynn BOWLES, Defendant-Appellant.

No. 07CA2503.

Colorado Court of Appeals, Div. IV.

April 16, 2009.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), held that automobile passengers are seized and thus their Fourth Amendment rights attach during traffic stops. Whether a police officer violates a passenger's Fourth Amendment rights during an otherwise valid traffic stop by requesting the passenger to produce identification is the principal contention of defendant Deanna L. Bowles. After Brendlin, this issue is unresolved in Colorado.¹

Although the officer had made such a request without particularized suspicion of Bowles, we discern no Fourth Amendment violation. We also reject her other contentions, and therefore affirm the judgment of conviction entered on a jury verdict finding her guilty of forgery, § 18-5-102(1)(e), C.R.S.2008, criminal impersonation, § 18-5-113(1)(e), C.R.S.2008, and false reporting to authorities, § 18-8-111(1)(d), C.R.S.2008.

I. Introduction

Bowles was a passenger in a car driven by her ex-boyfriend ("driver"). An officer stopped the car for a cracked windshield, approached it, and asked the driver for his license, registration, and proof of insurance. When the officer also requested Bowles's identification, she responded that she "didn't have an I.D." The officer then asked for her name and date of birth. Bowles gave the name and birth date of a friend ("friend").

After checking both names from his patrol car, the officer returned to the car and gave the driver his documents. Then the officer sought and received his permission to search the car. Bowles and the driver exited the car and stood behind it with a second officer, who had arrived in the meantime.

On the front passenger floorboard, the first officer found a sunglass case containing a glass smoking pipe. When asked about ownership of the pipe, both Bowles and the driver said that it belonged to "Melissa," who was not otherwise identified. Believing that the pipe belonged to Bowles, the officer issued her a summons for possession of drug paraphernalia using the friend's name she had provided. Bowles signed the summons in the friend's name and, as directed by the officer, placed her fingerprint on the back of the summons.

The authorities later determined Bowles's true identity and charged her with several other offenses. Bowles moved to suppress "all evidence" on Fourth Amendment grounds, which motion the trial court denied after holding a hearing. The jury acquitted Bowles of possessing drug paraphernalia but found her guilty on the remaining counts.

II. Motion to Suppress

Bowles contends the trial court erred in denying her motion to suppress because it incorrectly held that a passenger's Fourth Amendment rights are not implicated by a traffic stop. Based on Brendlin, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132, which was announced after the suppression hearing, we analyze the issue differently than did the trial court, but discern no ground for reversal.

A. Law

When reviewing a trial court's denial of a motion to suppress, we defer to its findings of fact but review its conclusions of law de novo. People v. Haley, 41 P.3d 666, 670 (Colo.2001).

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. Evidence obtained during an unreasonable seizure must be suppressed as fruit of the poisonous tree. People v. Taylor, 41 P.3d 681, 685 n. 4 (Colo.2002).

Not every encounter between police and citizens constitutes a seizure implicating Fourth Amendment protections. Marujo, 192 P.3d at 1005. Of the three general categories of such encounters—(1) arrests, (2) investigatory stops, and (3) consensual interviews—only the first and second are seizures. Id. at 1006; People v. Johnson, 865 P.2d 836, 842 (Colo.1994). Arrests must be justified by probable cause, while investigatory stops require only a reasonable suspicion of criminal activity. Johnson, 865 P.2d at 841-42 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In contrast, consensual encounters, which often involve voluntary cooperation and non-coercive questioning, are not subject to Fourth Amendment scrutiny. Johnson, 865 P.2d at 842-43; People v. Thomas, 839 P.2d 1174, 1177 (Colo.1992). An encounter is consensual if "a reasonable person under the circumstances would believe he or she was free to leave and/or disregard the official's request for information." Marujo, 192 P.3d at 1007 (quoting Thomas, 839 P.2d at 1177-78). An otherwise consensual police-citizen encounter does not become a seizure merely because the citizen may feel social pressure to cooperate. People v. Coleman, 55 P.3d 817, 819-20 (Colo.App.2002).

"Traffic stops are usually investigatory stops" requiring reasonable suspicion of criminal activity. People v. Cervantes-Arredondo, 17 P.3d 141, 147 (Colo.2001).

In Brendlin, the Supreme Court explained that "even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place." 551 U.S. at ___, 127 S.Ct. 2400. Consequently, the passenger may challenge the traffic stop and evidence obtained solely as a result of the stop.² Brendlin, 551 U.S. at ___, 127 S.Ct. 2400.

Our analysis is circumscribed by the parties' positions: Bowles does not dispute either the reasonable suspicion for the traffic stop or the validity of the driver's consent to the search; the Attorney General does not assert that either Bowles was implicated in the basis for the traffic stop or the officer had any individualized suspicion of her before discovering the pipe.

B. Request by Police for Passenger Identification During a Traffic Stop is Permissible

Although under Brendlin Bowles was seized when she provided the false name, for the following two reasons we conclude that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part.

First, because Brendlin did not address any aspect of police-passenger interaction other than the initial traffic stop, it leaves intact earlier Supreme Court rulings that police may request identification without reasonable suspicion. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) ("In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment."); Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("[E]ven when officers have no basis for suspecting a particular individual, they may generally . . . ask to examine the individual's identification . . . ." (citations omitted)); INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ("[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.").

Although these cases address only requests for identification during consensual encounters rather than investigatory stops, federal circuit court holdings are not so restricted. See, e.g., United States v. Rice, 483 F.3d 1079, 1084 (10th Cir.2007) ("[A]n officer may ask for identification from passengers and run background checks on them as well."); United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir.2003) ("[Officer] could ask the driver and passengers to produce identification."). These circuits had already held pre-Brendlin that a traffic stop constitutes a seizure of the passenger. See Brendlin, 551 U.S. at ___, 127 S.Ct. 2400.

Second, even if such a request for identification is minimally intrusive, it can easily be justified, as recognized in three post Brendlin decisions rejecting arguments like those raised by Bowles. See United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007) ("If an officer may `as a matter of course' and in the interest of personal safety order a passenger physically to exit the vehicle, [then] he may surely take the minimally intrusive step of requesting passenger identification." (quoting Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997))), cert. denied, 552 U.S. 1189, 128 S.Ct. 1221, 170 L.Ed.2d 76 (2008); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152-53 (9th Cir.2007) ("[P]olice may ask people who have legitimately been stopped for identification without conducting a [separate] Fourth Amendment search and seizure" to determine who the passengers are and whether any of them is capable of driving the car should the driver be arrested), cert. denied, 552 U.S. 1031, 128 S.Ct. 634, 169 L.Ed.2d 410 (2007); People v. Harris, 228 Ill.2d 222, 319 Ill.Dec. 823, 886 N.E.2d 947, 962 (2008) (Such a request "provid[es] a certain level of protection to both the officer and the driver of the vehicle" by "identify[ing] a potential witness to the traffic violation and to the officer's actions" during the stop).

Moreover, a passenger's response to such a request may be consensual, despite having been seized as a result of the traffic stop. See Harris, 319 Ill.Dec. 823, 886 N.E.2d at 963-64 (Fourth Amendment was not implicated because a reasonable passenger "would feel free to decline to provide his driver's license," "even upon realizing that the driver of the car in which he ha[d] been riding [was] about to be arrested," in that a request for identification is "facially innocuous"...