People v. Cagle

• Citation: 751 P.2d 614
• Decision Date: 08 February 1988
• Docket Number: No. 86SA169,86SA169
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Troy Roger CAGLE, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 614

751 P.2d 614

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Troy Roger CAGLE, Defendant-Appellant.

No. 86SA169.

Supreme Court of Colorado En Banc.

Feb. 8, 1988.

Rehearing Denied March 7, 1988.

Appeal Dismissal May 31, 1988.

See 108 S.Ct. 2009.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia Savage, John Milton Hutchins, Clement Engle, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Dixon and Snow, Steven Janiszewski, Frank Martinez, Denver, for defendant-appellant.

ERICKSON, Justice.

Defendant Troy Roger Cagle was charged with possession of a controlled substance in violation of section 18-18-105, 8 C.R.S. (1983 Supp.), and driving under denial in violation of section 42-2-130, 17 C.R.S. (1983 Supp.). The prosecution appealed a ruling of the Arapahoe County District Court suppressing the defendant's statement to police officers and evidence seized from the defendant's automobile. After reviewing the interlocutory appeal, People v. Cagle, 688 P.2d 718 (Colo.1984), we vacated the ruling of the district court and remanded for additional findings of fact. On remand, the district court conducted a second suppression hearing, and denied the motion to suppress after making additional findings of fact and conclusions of law. The defendant was tried by a jury and was convicted on both counts. He then appealed to the court of appeals asserting: (1) the district court erred in admitting the evidence found in defendant's car and in admitting the defendant's statements; (2) section 18-18-105, 8 C.R.S. (1983 Supp.) violates the equal protection clause of the United States and Colorado Constitutions; (3) the trial court imposed an inappropriate sentence; (4) the jury was improperly instructed; and (5) Cagle was denied effective assistance of counsel. In accordance with section 13-4-110, 6 C.R.S. (1973), the defendant filed a motion requesting determination of jurisdiction, and transfer of the appeal to this court. Because the defendant is challenging the constitutionality of a statute, we accepted jurisdiction. We now affirm.

I.

On June 19, 1983, Greenwood Village Police Officer Patrick Cillo, on patrol in his police car, began following the defendant's automobile because he believed that its presence in the area was suspicious. After observing the defendant change lanes without signaling, Officer Cillo turned on his overhead lights to signal the defendant to stop. The officer then saw the defendant's passenger bend down in his seat and remain in that position until just before the defendant turned a corner and pulled over. The defendant, who got out of his automobile and approached Officer Cillo, was unable to produce a driver's license and gave a false name. ¹ The officer recognized the defendant and knew that he had falsely identified himself. Officer Cillo called for backup assistance and ordered the defendant's passenger out of the car. As the passenger opened the car door the officer noticed a bottle of scotch whiskey in the car. The officer testified that the defendant and his passenger were not twenty-one years of age or older.

The trial court found that after Officer Smith arrived, Officer Cillo checked under the passenger's seat in the defendant's car for weapons and discovered a shirt crammed under the seat. As he pulled the shirt out, a plastic bag containing mushrooms fell to the floor. After finding the mushrooms, Officer Cillo placed the defendant and the passenger under arrest. The officer then advised the defendant of his Miranda rights. After the Miranda warning was given, the defendant stated that the plastic bags contained hallucinogenic mushrooms.

After the defendant was charged with possession of psilocybin, a schedule I controlled substance, in violation of section 18-18-105, 8 C.R.S. (1983 Supp.), a motion was filed to suppress the evidence found in his car and his statement to Officer Cillo. The district court granted the motion, ruling that although the officer had probable cause to stop the defendant, he did not have a reasonable suspicion to search the defendant's car for a weapon, and held that the defendant's statement was the fruit of an illegal search.

In People v. Cagle, 688 P.2d 718 (Colo.1984) (Cagle I), we stated that the validity of the stop and search of the defendant's car was governed by the standards enunciated in People v. Tate, 657 P.2d 955 (Colo.1983) and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Because we were not able to determine from the record whether the officer's purpose in entering the vehicle was to make a protective search, we remanded the case for resolution of the second element of the Tate test: whether the purpose of the search was reasonable. On remand, the trial court conducted a second suppression hearing and denied the defendant's motion to suppress. The trial that followed was concluded with a jury verdict of guilty on both counts. The defendant's motion for judgment of acquittal notwithstanding the verdict and motion for a new trial were both denied. The trial court then sentenced the defendant to twelve years plus one year parole on count one, and six months on count two, to be served concurrently.

After obtaining new counsel, defendant filed a motion for reconsideration of sentence. In May 1985, the trial court placed Cagle on probation for twelve years. Probation was later revoked and the sentence was reinstated.

II.

A.

Defendant contends that the trial court erred in admitting evidence relating to the psilocybin mushrooms that were found in his car. The standards for determining the validity of a stop and search were set forth in People v. Tate, 657 P.2d 955 (Colo.1983):

(1) there must be an articulable and specific basis in fact for suspecting that criminal activity has or is about to take place; (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.

Id. at 958. In Cagle I, we applied Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and held that under the proper circumstances a weapons search accompanying an investigatory stop may be extended to the passenger compartment of an automobile. ² In the context of automobile searches, we in effect added a fourth requirement, in Cagle I, to the three enumerated in Tate: there must be a reasonable belief based on specific and articulable facts which reasonably cause the officer to believe that the suspect is dangerous and may gain immediate control of weapons. ³

In applying the Tate test on remand, the trial court found that there was an articulable and specific basis in fact for suspecting that criminal activity had occurred because Officer Cillo observed the defendant changing lanes without using his turn signal and suspected the defendant of possessing an alcoholic beverage while under the age of twenty-one. We agree that the first prong of the Tate test was satisfied.

With respect to the second and third prongs of the Tate test, in Cagle I, "[w]e disagree[d] with the district court's conclusion concerning the scope and character of the search but remand[ed] ... for a determination as to the second requirement of Tate: whether the purpose of the search was reasonable." Cagle I, 688 P.2d at 721-22 (footnote omitted). Moreover, we disagreed with the district court's conclusion that the search of the defendant's vehicle violated the third prong of Tate in that there was "no indication or even reasonable suspicion that there would have been a weapon in the car." Id. at 721. In support of our conclusion that the third prong of Tate was met, we stated:

Assuming that it can be shown on remand that Officer Cillo's purpose in conducting the search was in fact to look for weapons, we believe that the scope and character of the search accorded with such a purpose. The passenger's furtive conduct in bending down in his seat after Officer Cillo turned on his overhead lights would have warranted a reasonable belief that the passenger had a weapon beneath his seat, thus justifying a weapons search in that area.

Id. at 723 (citation omitted).

On remand, the trial court made the following findings relating to the second and third requirements of Tate:

[As the defendant pulled over,] the passenger in the car, who was later identified as Scott Suderman, made a furtive gesture of reaching below the seat or bending over as if to be secreting something.

....

... Officer Cillo used his hand-operated radio and called for assistance.... Officer Cillo then kept Mr. Cagle and Mr. Suderman at the rear of the car until Officer Rick Smith arrived....

After Office Smith arrived, ... Cillo, remembering the gesture made by Mr. Suderman of reaching down after the overhead lights were turned on and being bent over for some period of time, and in order to protect his safety, then proceeded to search the Cagle automobile for any weapons.

....

At this point at least two criminal activities had taken place. One was basically a quasi-criminal activity, the changing of lanes without indicating this intention; the other the possession of alcoholic beverages to [sic] someone under the age of 21.

The trial court's finding that Officer Cillo searched the automobile for weapons in order to protect himself, is a factual determination of the officer's actual purpose in making the search. We will not disturb a trial court's findings of fact where they are supported by the record. Martinez v. Continental Enterprises, 730 P.2d 308 (Colo.1986).

According to Cagle I, the second area of inquiry is whether the purpose is reasonable. Officer Cillo called a backup to the scene in order to protect his personal safety, and waited for the backup to arrive before searching the car. At the time of the search, Officer Cillo informed Officer Smith of the passenger's suspicious movements, and testified at both...