People v. Cascio

• Decision Date: 24 February 1997
• Docket Number: No. 96SA21,96SA21
• Citation: People v. Cascio, 932 P.2d 1381 (Colo. 1997)
• Parties: , 21 Colorado Journal 279 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Scott M. CASCIO and Craig M. Cascio, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1381

932 P.2d 1381

65 USLW 2647, 21 Colorado Journal 279

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Scott M. CASCIO and Craig M. Cascio, Defendants-Appellees.

No. 96SA21.

Supreme Court of Colorado En Banc.

Feb. 24, 1997.

John Suthers, District Attorney, Fourth Judicial District, David L. Geislinger, Deputy District Attorney, Colorado Springs, for Plaintiff-Appellant.

Daniel & Thom, P.C., Norman R. Thom, Colorado Springs, for Defendant-Appellee Scott M. Cascio.

Douglas P. Price, Colorado Springs, for Defendant-Appellee Craig M. Cascio.

Justice MULLARKEY delivered the Opinion of the Court.

The People filed this interlocutory appeal pursuant to C.A.R. 4.1 seeking review of the El Paso County District Court's order suppressing drug and drug paraphernalia evidence obtained during a warrantless search of Craig M. Cascio's van. The evidence was obtained after the defendants-appellees, Craig M. Cascio and Scott M. Cascio, were approached by deputies of the El Paso County Sheriff's Office because their van was parked illegally. Thereafter, the Cascios consented to a search of the van. The district court deemed the consent to be voluntary. The district court suppressed the evidence, however, because it found that the Cascios were illegally detained since the initial reason for the stop had been exhausted and there was no reasonable, articulable suspicion to detain the Cascios on other grounds. Therefore, the district court ruled that all of the evidence flowing from the illegal detention was subject to suppression as to both of the Cascios. In addition, the district court ruled orally that the passenger, Scott Cascio, did not have standing to challenge the search. By virtue of its written order, we presume that the district court ultimately determined that Scott Cascio did have standing to challenge the legality of the detention.

We hold that the contact between the deputies and the Cascios was a consensual interview. Thus, the Fourth Amendment was not implicated, and there was no illegal, unconstitutional detention. Accordingly, we reverse the district court's order and remand to that court for disposition consistent with our decision. Because we reverse the district court's order of suppression, we need not determine whether Scott Cascio has standing to challenge the search. The evidence is admissible against both the Cascios, and thus the standing issue is mooted.

I.

On July 22, 1995 between 8:00 and 9:00 p.m., Deputies Scott Rosenbaum and Mark Getskow of the El Paso County Sheriff's Office were patrolling the Rampart Range Road vicinity in Pike National Forest, Colorado, when they spotted the Cascios' white Ford van parked just off Rampart Range Road which at that location was an unpaved narrow mountain road. ¹ The van was parked at the intersection of Rampart Range Road and a dirt road, described by the deputies as an old stage coach road. This road was closed to vehicular traffic by large boulders, and the van was parked a few feet away from the boulders.

As part of their duties, Deputies Rosenbaum and Getskow were empowered to enforce designated parking and camping signs posted along the roads they were patrolling. There were signs posted on Rampart Range Road stating that there was no parking on that road. The area in which the Cascios were parked was not designated for either parking or camping. Hence, the deputies parked their patrol car approximately ten to twenty feet ² behind the van and trained their spotlight on the van. In addition, both deputies used their flashlights in order to see into the van. The deputies did not, however, activate the patrol car's overhead light bar.

Both deputies then approached the passenger side of the van on foot with Deputy Getskow positioned directly behind Deputy Rosenbaum. Deputy Getskow played a subsidiary role during the encounter and did not converse with the Cascios. All of the questions were posed by Deputy Rosenbaum. While approaching the van, Deputy Rosenbaum observed the passenger, Scott Cascio, dip down toward the floor of the vehicle. ³

After warning the Cascios that they were in an area where parking and camping were not permitted, Deputy Rosenbaum asked the driver, Craig Cascio, if it was his van. Craig Cascio responded that it was his van. Deputy Rosenbaum then asked whether the Cascios had any weapons in the car. The Cascios answered in the negative. Deputy Rosenbaum requested and received permission from Craig Cascio to search the van for weapons. Deputy Rosenbaum asked the Cascios to get out of the van but did not conduct a pat down search of the Cascios. While Deputy Rosenbaum was conducting the search, Deputy Getskow took down the Cascios' names and dates of birth.

Deputy Rosenbaum's initial search revealed a gram of fine white powder on a business card on the van's dashboard and a hot propane torch located between the driver and passenger's seat. ⁴ His suspicions aroused by these items, Deputy Rosenbaum asked whether the Cascios were smoking crack cocaine. The Cascios did not respond to his question. At that point, Deputy Rosenbaum read the Cascios their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Subsequently, when questioned as to its contents, Scott Cascio explained that the fine white powder was a combination of cocaine and methamphetamine. A field test confirmed the presence of cocaine and methamphetamine in the white powder.

Craig Cascio was charged with one count of possession of a Schedule II controlled substance in violation of sections 18-18-405(2)(a)(I), 18-8-204, 8B C.R.S. (1996 Supp.). Scott Cascio was charged with one count of possession of a Schedule II controlled substance with intent to distribute pursuant to sections 18-18-405(2)(a)(I), 18-8-204, 8B C.R.S. (1996 Supp.), and one count of tampering with physical evidence pursuant to section 18-8-610, 8B C.R.S. (1986 & 1996 Supp.). ⁵ Both defendants moved to suppress the evidence and statements obtained during their detention. ⁶ A joint suppression hearing was conducted by the district court. At the hearing, the court heard testimony from both deputies. Although Craig Cascio testified briefly in order to verify a picture of his van, and the picture was subsequently admitted into evidence, neither Craig nor Scott Cascio testified on the substantive issues before the court.

The district court treated the incident as a legitimate stop for a minor traffic infraction, finding that the deputies had reasonable grounds to believe that the Cascios were parked improperly and to question them about their intent to camp in that area. However, the district court found that the search for weapons was pretextual and that the consent to search was not viable because the purpose of the stop had been exhausted:

[B]ased on the conduct of the officers in not searching the occupants' persons for weapons and in not otherwise securing the occupants for officer safety reasons, the Court finds that the request to search the van for weapons appears to have been a pretext. And although consent appears to have been voluntarily given, and the Court so finds, the Court does not find under People v. Redinger, 95SA168, 19 Brief Times Reporter 1544 (Colo.1995) and under United States v. McSwain, 29 F.3d 558 (10th Cir.1994), that once the initial investigatory stop for camping or parking was concluded, there appeared to be no other articulated reasonable suspicion to support further investigation; therefore, no justification for continued detention and interrogation of the occupants of the vehicle.

Indeed, Deputy Getskow testified during the suppression hearing that, despite their comments to the Cascios, the search was conducted for drugs and not for weapons. Thus, the district court concluded that "the level of intrusion, given the facts and circumstances of this particular case, was beyond that permissible or warranted to a governmental official without further articulation of reasonable grounds to investigate the conduct of the occupants." ⁷ The district court was not convinced that Scott Cascio's motion of dipping down provided sufficient additional reasonable grounds to justify a continued detention.

The People filed this interlocutory appeal. Two issues are presented for our review: (1) whether the district court appropriately suppressed the evidence, and (2) whether the passenger, Scott Cascio, has standing to challenge the search of his brother's van. We do not reach the second issue because of our disposition of the first. Because the evidence is admissible, the issue of standing is rendered moot.

II.

The Cascios argue that the evidence was unconstitutionally obtained because they were illegally detained at the time Deputy Rosenbaum requested consent to search. We disagree. We find that this police-citizen encounter does not rise to the level of an investigatory stop but, rather, was simply a consensual, everyday contact. Therefore, at the time the request for consent to search was made by Deputy Rosenbaum, the Cascios were not illegally detained. Furthermore, as discussed below, our holding in People v. Redinger, 906 P.2d 81 (Colo.1995), is not controlling. The district court adjudged the consent to be voluntary. Accordingly, the search was legitimate.

A.

We first address the nature of the encounter between the Cascios and the sheriff's deputies.

The Fourth Amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated...." The United States Supreme Court has delineated three levels of police-citizen encounters which, as we stated in People v. Johnson, 865 P.2d 836, 842 (Colo.1994), have been consistently recognized and adopted by Colorado courts: (1) arrest; (2) investigatory stop; and (3) consensual interview. See also People v. Trujillo, 773 P.2d 1086, 1089 (Colo.1989). Each of these categories...