People v. Carlson, 82SC20
| Citation | 677 P.2d 310 |
| Decision Date | 30 January 1984 |
| Docket Number | No. 82SC20,82SC20 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Mark Gus CARLSON, Respondent. |
| Court | Supreme Court of Colorado |
Alexander M. Hunter, Dist. Atty., Randall John Paulsen, Richard F. Good, Alan C. Katz, Deputy Dist. Attys., Boulder, for petitioner.
Robert J. Dieter, Legal Aid and Defender Program, Boulder, for respondent.
We granted certiorari to review a decision of the district court affirming a county court ruling suppressing visual observations and other evidence obtained by a police officer after stopping the defendant-motorist, Mark Gus Carlson, on suspicion of a traffic violation. The district court held that because the police officer did not have probable cause to arrest the defendant for driving under the influence of intoxicating liquor and because there was no evidence of a hazard to the officer's safety from either the defendant or passing traffic, the officer could not lawfully order the defendant to step out of his car and walk to the rear of the vehicle. Such order, in the district court's view, constituted an illegal seizure of the defendant's person, thereby rendering inadmissible any later-acquired evidence resulting from the seizure, including the officer's observations of the defendant during roadside sobriety testing. We conclude that a police officer in the course of a valid traffic stop may order the driver to get out of the car and walk to the rear of the vehicle without violating the federal or state proscription against unconstitutional searches and seizures. We accordingly reverse the order of the district court and remand the case for further proceedings on the issue of whether the defendant voluntarily consented to roadside sobriety testing.
The defendant was arrested on October 14, 1980, in Lafayette, Colorado, and was thereafter charged in the Boulder County Court with driving under the influence of intoxicating liquor. Section 42-4-1202(1)(a), C.R.S.1973. He filed a motion to suppress all evidence obtained from him, including visual observations, chemical testing, and a custodial statement to the police on the ground that such evidence was the fruit of an unconstitutional search and seizure in violation of the United States and Colorado Constitutions. U.S. Const. Amend. IV; Colo. Const. Art. II, Sec. 7. A hearing was held on the defendant's motion to suppress on January 30, 1981. The evidence, which consisted solely of the testimony of Lafayette Police Officer Gene Carlton, established the following facts.
At approximately 2:30 a.m. on October 14, 1980, Officer Carlton observed the defendant's Ford Pinto automobile traveling westbound on South Boulder Road in Lafayette. The stretch of road in question had no center line, and the defendant's vehicle was traveling midway in the road for approximately a quarter of a mile. The officer then watched the car move to the right side of the road and travel for approximately another quarter of a mile before again straying back to the center. When Officer Carlton activated his emergency lights, the defendant drove about 100 feet and eventually pulled over to the right side of the road.
The officer approached the defendant and asked him for his license. The defendant produced his license without any difficulty, at which point the officer noticed redness about his eyes and detected an odor of alcoholic beverage emanating from inside the car. Officer Carlton told the defendant to step out of the car and walk to the rear of the vehicle. When the defendant got out of his vehicle and walked to the rear, the officer observed that he was somewhat unsteady in his balance. At the rear of the vehicle Officer Carlton, after informing the defendant that he believed he was driving under the influence of alcohol, told him that he would like him "to do some roadside tests [but that] he didn't have to if he didn't want to." The defendant, according to the officer, agreed to submit to testing.
Before administering the tests the officer demonstrated each procedure to the defendant. The first test consisted of standing in an erect position, with the feet together and hands at the side, and then closing the eyes and tilting the head backward. The officer observed considerable swaying from side to side and from rear to front when the defendant attempted this maneuver. The defendant then performed the "finger to nose" test, in which he attempted to touch the tip of his nose with the first finger on each hand. The defendant, according to the officer, "completely missed on the left finger, touching his mouth." Last, the defendant was requested to walk "heel to toe" in the area between the rear of his vehicle and the front of the police vehicle, a distance of fifteen to twenty feet. After taking a few steps the defendant became unsteady and could no longer retain his balance. Officer Carlton then arrested the defendant for driving under the influence of intoxicating liquor. At the station house a chemical test on the defendant's breath was administered, and the defendant, after being advised of his Miranda rights, 1 told the officer that he had consumed about five beers.
At the conclusion of the suppression testimony the county court ruled that the officer had a valid basis to initially stop the defendant for driving on the wrong side of the road and, as part of that stop, could properly order the defendant to get out of his car. The court, however, held that the officer's order to walk to the rear of the vehicle constituted an unlawful search unsupported by probable cause. Under derivative evidence principles the court therefore suppressed the officer's observations of the defendant made subsequent to the order, including the results of the roadside sobriety test, and also suppressed the results of the chemical test performed at the police station and the defendant's station house admission to the officer.
On appeal the district court noted that there are two situations in which an officer may request a driver to step out of his car during a valid traffic stop: (1) when the officer, having probable cause to believe the driver is under the influence of intoxicating liquor, intends to administer a roadside sobriety test; and (2) when there is a threat to the officer's safety posed either by a potential assault at the hands of the driver or by a traffic hazard. Since neither situation was present in this case, the district court concluded that the officer's ordering the defendant to step out and walk to the rear of the vehicle constituted an illegal arrest and, on that basis, affirmed the suppression ruling. We granted the People's petition for certiorari to consider whether the officer's observations of the defendant and other evidence obtained in the course of the defendant's detention and arrest were properly suppressed as a product of an unconstitutional search or seizure.
A threshold issue we must determine is whether a police officer, in the course of a lawful traffic stop, may order the driver to get out of the vehicle and walk to the rear. The county court concluded that, although the officer legitimately ordered the defendant out of the car, his request that the defendant walk to the rear of the vehicle constituted an unlawful search. The district court, in contrast, determined that the officer's initial order to the defendant to step out of his vehicle was invalid because the officer at that point lacked probable cause to believe the defendant was intoxicated or posed a threat to the officer's safety. We conclude that the officer's order to get out of the vehicle and walk to the rear, issued after the defendant-motorist was lawfully stopped, did not constitute an unlawful search or seizure under the Fourth Amendment to the United States Constitution or Article II, Section 7 of the Colorado Constitution.
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam), the United States Supreme Court considered whether a police officer's order to a motorist to get out of the car, issued after the officer lawfully stopped the vehicle in order to issue the motorist a summons for driving with an expired license plate, constituted an unlawful seizure of the driver's person in violation of the Fourth Amendment. Recognizing "reasonableness" as the touchstone of Fourth Amendment analysis, the Court held that the order was clearly justified in the interest of the officer's safety and far outweighed the minimal inconvenience to the driver. 2 The hazards to a police officer investigating a traffic violation, the Court noted, include not only the risk of assault from the unknown driver, who might have access to weapons located inside the automobile, but also the danger of accidental injury from passing traffic during the officer's on-the-scene investigation. When weighed against the governmental interest in the officer's safety, the Court concluded that any additional intrusion occasioned by the order to get out of the vehicle "can only be described as de minimis," especially since the driver has already been detained and he is being required "to expose to view very little more of his person than is already exposed." 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337. The Mimms rationale, we believe, is equally applicable to an investigatory stop based on reasonable grounds to suspect a motorist of a traffic violation. The hazards to the officer's safety are no less during an investigatory stop of a motorist on reasonable suspicion of a traffic violation than when, as in Mimms, the stop is for the purpose of issuing a summons for a known traffic violation committed in the presence of the officer. 3
Beginning with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), limited intrusions into one's personal security, short of the traditional arrest and full-scale search, have been approved in narrowly defined...
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