People v. Casias

• Decision Date: 11 April 1977
• Docket Number: No. C--951,C--951
• Parties: The PEOPLE of the State of Colorado Petitioner, v. Orlando L. CASIAS, Respondent.
• Court: Colorado Supreme Court

Page 926

563 P.2d 926

193 Colo. 66

The PEOPLE of the State of Colorado Petitioner, v. Orlando L. CASIAS, Respondent.

No. C--951.

Supreme Court of Colorado, En Banc.

April 11, 1977.

Rehearing Denied May 31, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Solicitor Gen., James S. Russell, Asst. Atty. Gen., Denver, for petitioner.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review the decision in People v. Casias, Colo.App., 549 P.2d 803 (1976). We reverse and remand with directions to affirm the convictin of the defendant.

As reflected in the findings at the suppression hearing, and the testimony expressly found credible by the trial court, this case involves the following facts: In the fall of 1973, a special police task force was involved in a narcotics investigation which focused upon the premises occupied by the defendant, Orlando L. Casias. The police obtained a search warrant for the premises, based upon a reliable informant's report that the defendant had been selling heroin in his house within the preceding week. The affidavit supporting the warrant set forth that the police informant had identified the defendant's picture in a group of mug shots of different individuals. The defendant, according to the affidavit, had several prior narcotics arrests. Surveillance of the defendant's premises by the affiant during the preceding evening disclosed separate, brief visits by eight different persons. The trial court found that the affidavit did provide probable cause for issuance of the search warrant.

Armed with the warrant, Officers Cinquinta and Hollingshead waited for the defendant to come out of his house so that a search could be made. Officer Cinquinta testified that this procedure was required in order to prevent the defendant from destroying any narcotics inside the house. When the defendant appeared on the porch, Officer Cinquinta confronted the defendant with the warrant and began reading it to him. Both officers observed that the defendant had highly-constricted pupils, a lethargic speech and gait, and no odor of liquor on his person. The officers testified that in their opinion the defendant was under the influence of narcotics. According to the testimony of both officers, Casias them moved back suddenly, turned away, and placed his right hand into his right-front pants pocket. ¹ Officer Cinquinta immediately grabbed the defendant and pulled his hand out of the pocket. He then reached with his own hand into the pocket. Feeling an object in the pocket, he pulled it out. ² The object was a small tin-foil package. At this time, the officer opened the package and found two balloons. After the balloons were found, the defendant was formally arrested.

The officers described the search as 'incident to arrest.' The balloons were placed in a vial. Subsequently, laboratory examination revealed that the balloons contained heroin. This evidence formed the basis for the defendant's conviction for the possession of heroin. ³ Execution of the search warrant on the premises led to the discovery of quantities of methadone and marijuana, and a 'fixit' kit of heroin paraphernalia.

In reversing the conviction, the court of appeals held that, under any version of the facts that were favorable to the prosecution, the actions of Officer Cinquinta violated the defendant's Fourth Amendment rights. The court of appeals reasoned that by placing his hand in the defendant's pocket, the officer exceeded the scope of a proper investigatory frisk. Moreover, 'even if the defendant brought the item out into the open in the palm of his hand when his hand was pulled from his pocket, the officer was not justified in seizing an item which he admitted was wrapped in tin-foil and could not have been contraband in 'plain-view. " People v. Casias, supra. Based upon the facts in this case, we cannot agree with the conclusions of the court of appeals.

The issues presented by this case are (1) whether the frisk, in which we have assumed the officer reached into the pocket, exceeded the restraints of the Fourth Amendment and the Colorado Constitution, and (2) whether in any case the warrantless opening of the tin-foil package was violative of those restraints.

We note from the outset that both the frisk and the opening of the package were 'searches' within the cognizance of the Fourth Amendment and Article II, Section 7 of the Colorado Constitution. We have repeatedly recognized the legitimacy of the privacy expectation which attaches to objects in sealed containers. ⁴ See, e.g., People v. Counterman, Colo., 556 P.2d 481 (1976) (sealed backpack); People v. McPherson, Colo., 550 P.2d 311 (1976) (paper bag); People v. Branin, Colo., 533 P.2d 1138 (1975) (tin-foil packet); People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971) (foil-wrapped package).

The pockets of a person's clothing have, likewise, been uniformly recognized as areas to which a justifiable expectation of privacy attaches. See, e.g., People v. Counterman, supra; People v. Taylor, Colo., 544 P.2d 392 (1975); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971); People v. Nefzger, 173 Colo. 199, 476 P.2d 995 (1970) (jerking hand out of pocket); People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970).

Finally, we note that a search conducted without a warrant is prima facie invalid, unless it falls within the limits of one of several well-recognized 'exceptions' to the warrant requirement. ⁵ See, e.g., People v. Williams, Colo., 557 P.2d 399 (1976) (refusing to create new exception to the warrant requirement). Even within the scope of a given exception, the search must still meet the ultimate requirement of 'reasonableness.' See, e.g., South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (inventory search); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (automobile); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (probable cause plus exigent circumstances); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop-and-frisk); People v Counterman, supra (inventory search); People v. Gurule, 172 Colo. 159, 471 P.2d 413 (1970); stop-and-frisk). Of course, once an infraction of the Fourth Amendment occurs under the above standards, the provisions of the exclusionary rule become operative whenever the deterrent effect of the rule is justified. ⁶

I. The Stop-and-Firsk

This court, like virtually every court in the country, has struggled with the problems of consistency in applying the legal standards for 'stop-and-frisk' or 'investigatory stops' to the infinite variety of factual situations encountered by law-enforcement officers. ⁷

In Terry v. Ohio, supra, the Supreme Court recognized that the 'police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.' This need was balanced against the fact that '(I)t is nothing less then sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search. " In resolving these interests, the Terry Court concluded that:

'(W)e deal here with an entire rebric of police conduct--necessarily swift action predicated upon the on-the-spot observations of the officer on the beat--which historically has not been, and as a practical matter could not be subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.' (Footnotes omitted.)

Finally, the Terry Court concluded that 'reasonableness' must necessarily be based upon specific information rather than mere hunches:

'(I)n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonable warrant that intrusion.'

In applying the analysis of Terry to cases arising in this jurisdiction, we have predictably been faced with a variety of fact situations. Using the rubric of 'reasonableness' in analyzing these factual circumstances, we have refined a series of guiding principles, most of which were expressed or implied in Terry v. Ohio, supra, or its companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

First, there must exist some legitimate basis for making a 'stop,' or confronting the citizen in the first place. See People v. McPherson, supra; People v. Branin, supra; People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974); People v. Martineau, supra; Stone v. People,174 Colo. 504, 485 P.2d 495 (1971); People v. Bueno, supra; People v. Severson, Colo.App., 561 P.2d 373 (announced March 3, 1977). Generally, such 'stops' have been upheld only when they have been based upon some articulable suspicion that the citizen was recently engaged, or was about to engege in criminal conduct. ⁸ The stops were, thus, investigatory in nature and based upon some specific information rather than a naked hunch. Compare People v. McPherson, supra, and People v. Corbett, Colo.,547 P.2d 1264 (1976), With People v. Martineau, supra. Cases have, however, recognized that other legitimate official purposes exist for brief detentions. See Terry v. Ohio, supra (assisting intoxicated person with no intention of arrest; mediation of domestic quarrel); People v. Davis, Colo.App., 565 P.2d 1347 (announced February 24, 1977) (traffic control, accident investigation, rendering firstaid, assisting disabled motorist). ⁹

Second, as a condition to the reasonableness of a frisk or pat-down of the citizen...