People v. Cervantes-Arredondo, 00SA102.

• Decision Date: 16 January 2001
• Docket Number: No. 00SA102.,00SA102.
• Citation: 17 P.3d 141
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jaime CERVANTES-ARREDONDO, Defendant-Appellee.
• Court: Colorado Supreme Court

17 P.3d 141

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jaime CERVANTES-ARREDONDO, Defendant-Appellee.

No. 00SA102.

Supreme Court of Colorado, En Banc.

January 16, 2001.

F. Michael Goodbee, District Attorney, Fifth Judicial District, John C. Clune, Deputy District Attorney, Eagle, CO, Attorneys for Plaintiff-Appellant.

Heckman & O'Connor, P.C. Terrence P. O'Connor, Edwards, CO, Attorneys for Defendant-Appellee. Justice MARTINEZ delivered the Opinion of the Court.

The People bring an interlocutory appeal under C.A.R. 4.1 to contest the trial court's suppression of evidence seized following an investigatory stop of the defendant's car. The trial court first found that the initial traffic stop was supported by reasonable suspicion that a cracked windshield and two objects attached to the windshield obstructed the defendant driver's view. The trial court then reasoned that the purpose of the initial investigatory stop was completed when the officer handed a traffic citation to the defendant. However, the trial court concluded that any further detention of the defendant was an arrest that must be supported by probable cause to believe the defendant had committed a criminal offense.

We hold that the trial court erroneously characterized the initial period of extended contact between the defendant and the officer as an arrest requiring probable cause. In so doing, the trial court did not consider whether the continuing contact might have been a consensual encounter or an investigatory stop for another purpose before it escalated into an arrest. The record demonstrates that the continuing contact did not immediately become an arrest. However, ambiguity in the record and the lack of factual findings make it unclear whether the continuing contact was merely a consensual encounter or whether it was an investigatory stop. Therefore, we reverse the trial court's order suppressing the evidence seized during the search of the defendant's vehicle, but we remand this case to the trial court for additional findings and conclusions.

I.

While patrolling on October 31, 1999, Colorado State Patrol Officer Kevin Crider (Crider) observed a car with a cracked windshield and two objects that appeared to obstruct the driver's vision. Crider stopped the car and contacted the driver, later identified as Jaime Cervantes-Arredondo (Cervantes). Crider explained to Cervantes that he had been stopped for an obstructed windshield and requested his driver's license, registration and proof of insurance. Cervantes provided Crider with his license and registration, but informed the officer that he lacked proof of insurance. Crider also observed that Cervantes wore no seatbelt. The officer informed Cervantes that he would be issuing a ticket for no proof of insurance and for not wearing a seatbelt, as well as giving him a warning for the cracked windshield.

During his initial contact with Cervantes, the officer noticed two air fresheners and spray cans of engine degreaser among the trash strewn on the rear floor of Cervantes's car. At trial, Crider testified that engine degreaser has a very strong odor which he noticed immediately. He thought the air freshener and engine degreaser might be "masking agents" used to disguise the odor of drugs. Crider checked Cervantes's license and registration, and wrote a ticket for no proof of insurance and failure to wear a seatbelt.

After issuing the ticket, but without indicating that the defendant was free to go, Crider began asking Cervantes about his travel plans and the kind of work he did in Washington. Cervantes told the officer that he was coming from Seattle and going to Denver. Crider asked the defendant his reasons for traveling to Denver. Cervantes answered that he was going to see a friend. The officer asked for the name of the friend, which Cervantes provided, and Crider made a written notation of the friend's name. Crider had already called for a back-up officer because he wanted to conduct a search if at all possible.

According to his testimony, the officer next asked Cervantes if he knew the friend's address. Unable to recall a specific address, Cervantes provided Crider with the cross-streets of Sheridan and Alameda. Cervantes testified that he told Crider, "Well, I don't know this area, and that is why I just have a phone number." The officer then asked Cervantes for the friend's phone number and Cervantes gave it to him. Cervantes testified that Crider told him, "I'm going to call [the friend] and see if it's true that you're going there to visit." Cervantes testified that he responded, "Well, call him. I'm going to visit."

Crider asked whether Cervantes was carrying any concealed weapons and whether Cervantes was carrying any large amounts of money. Cervantes said he was not carrying large sums of money. At some point, Crider asked Cervantes if he had anything illegal in the car. Cervantes denied carrying anything illegal. Crider testified that he typically asks about specific drugs on any interdiction stop when he has a suspicion. Accordingly, Crider next asked Cervantes if he was carrying any cocaine. Crider testified that Cervantes paused for three to five seconds before answering "no." The officer then asked the defendant if he was carrying any marijuana or methamphetamines. Cervantes looked directly at the officer and answered "no." Although Cervantes had answered most questions without hesitation, Officer Crider testified that Cervantes's responses and his slight hesitation before answering the question about cocaine raised the officer's suspicions.

Cervantes testified that he felt humiliated after Crider issued the ticket and made statements like, "You're taking drugs to your friends in Denver," and "Where do you have it?" Cervantes responded that he did not "think it would be right" to take drugs to Denver, that he did not have anything illegal, and that he asked the officer, "Why would I have firearms or cash or drugs?"

It is unclear when Crider returned the driver's license and registration to Cervantes. The trial court did not make any finding of fact about the items, and the record contains only one reference to the return of Cervantes's license and registration. During cross-examination, Crider stated that Cervantes was "just putting his license and registration card away" when the officer asked Cervantes about having anything illegal in the car.

Crider asked if he could search the car to verify that Cervantes was telling the truth and, according to Crider, Cervantes assented. Crider then conducted a pat-down search of Cervantes and a search of the vehicle, which revealed nothing. Nevertheless, Crider wanted a drug-sniffing dog to search the vehicle. He told Cervantes that it would take approximately an hour to have a drug-sniffing dog brought from Glenwood Springs. Cervantes stated that he made any alleged consent to the search only in deference to Crider's authority as a law enforcement officer. The officer did not complete a written consent to search form, testifying that he was out of the appropriate forms and that he forgot to ask the other officers on the scene for a copy of the form.

While waiting approximately forty-five minutes to an hour for the dog to arrive, Cervantes returned to his truck where he appeared to doze. No further questioning or interaction between Crider and Cervantes occurred during this time. After the dog arrived and Cervantes's car was searched, illegal drugs were discovered. As a result, the officer arrested and charged Cervantes as a special offender for the possession of a schedule two controlled substance with the intent to distribute. See §§ 18-18-405(2)(a)(I) and 18-18-407(1)(d), 6 C.R.S. (2000).

Before proceeding to trial on these charges, Cervantes filed a motion to suppress the drugs seized during the search of his car. He argued that no reasonable suspicion existed for the initial stop and that once Crider determined that there was no obstruction of the windshield, no basis existed for a further stop, for continued questioning, or for a search. Furthermore, Cervantes alleged that the stop was an illegal "profile search," that there was no valid consent to search, and that the length of the search was unreasonable.

The trial court granted Cervantes's motion to suppress. After finding that Crider's observation of the cracked windshield and the objects attached to it provided the specific and articulable basis necessary to create reasonable suspicion for the traffic stop, the trial court found that Crider's investigation continued and became an arrest without probable cause. The trial court suppressed evidence obtained after the issuance of the traffic summons, ruling that the illegal detention tainted any consent to search that Cervantes may have given. The trial court also concluded that "there may be other questions relating to the voluntariness of the defendant's consent" but it did not reach these questions and, thus, it did not determine whether Cervantes consented to the searches. The People filed this interlocutory appeal to challenge the suppression of the evidence discovered during the search of Cervantes's car.

II.

In this opinion, we consider the standards used to determine the nature of the extended contact between Crider and Cervantes which followed this traffic stop. We discuss why the interaction between Crider and Cervantes that immediately followed the traffic stop was not, initially, an arrest that required probable cause. We discuss the factors to be considered in determining whether the continuing interaction, which occurred after the traffic stop had been concluded, was a consensual encounter. We also discuss the factors to be considered when deciding whether a traffic stop may be extended for a different valid purpose.¹ If Cervantes consented to the search of his car during a consensual encounter with Crider following a valid traffic stop, or during an extended investigatory...