People v. D.F.

• Decision Date: 18 February 1997
• Docket Number: No. 96SA217,96SA217
• Citation: 933 P.2d 9
• Parties: 21 Colorado Journal 213 The PEOPLE of the State of Colorado, Petitioner-Appellant, v. In the Interest of D.F., Juvenile-Appellee, And Concerning Z.A., Respondent-Appellee.
• Court: Colorado Supreme Court

Page 9

933 P.2d 9

21 Colorado Journal 213

The PEOPLE of the State of Colorado, Petitioner-Appellant, v. In the Interest of D.F., Juvenile-Appellee And Concerning Z.A., Respondent-Appellee.

No. 96SA217.

Supreme Court of Colorado,

En Banc.

Feb. 18, 1997.

A. William Ritter, Jr., District Attorney, Second Judicial District, Nathan B. Coats, Chief Deputy District Attorney, Denver, for Petitioner-Appellant.

David F. Vela, Colorado State Public Defender, Matthew S. Connell, Deputy State Public Defender, Denver, for Juvenile-Appellee and Respondent-Appellee.

Justice HOBBS delivered the Opinion of the Court.

In this interlocutory appeal, brought pursuant to section 16-12-102(2), 8A C.R.S. (1996 Supp.), and C.A.R. 4.1, the prosecution seeks review of an order entered by the Juvenile Court of the City and County of Denver suppressing evidence of a concealed weapon found on the juvenile defendant, D.F. The juvenile court determined that reasonable suspicion did not exist at the time officers effected the investigatory stop. Based on the totality of the circumstances, we hold that the police officers did have a reasonable suspicion to stop the juvenile and seize the shotgun he was carrying. Accordingly, we reverse the juvenile court's suppression order.

I.

On the afternoon of February 5, 1996, the Denver Police Department received an anonymous tip that one of three young males walking southbound in the area of 1800 South Stuart Street was carrying a concealed weapon possibly a BB rifle. ¹ One of the males was dressed in a poncho. Two officers responded to the call and went to the location where the three individuals were last seen. Not finding them there, the officers continued southbound until they came to Harvey Park, in the vicinity of South Stuart Street and West Evans Avenue. There the officers spotted three young males, who appeared to be about thirteen years old, walking together in the park. One of them was wearing a brown poncho and one was walking stiff-legged. The juveniles were traveling toward Kunsmiller Middle School, which is adjacent to the south side of the park. It was about 1:30 on a Monday afternoon. Several adults and approximately ten to twelve children between the ages of two and five were in the playground at the time. The juveniles were traveling towards the neighborhood school. The officer did not draw his own weapon because he "was in fear of the safety of these little children that were there."

On both direct and cross-examination at the suppression hearing, Officer Paul Murawski (Officer Murawski) testified that D.F. was walking as though he were concealing something in his pants. On direct, he testified: "I also noted that one of these parties--in this instance, [D.F.]--was walking and his leg was very stiff such as to indicate that he had--he either was not able to bend it or something was preventing him from bending his leg." During cross-examination, Officer Murawski testified that D.F "was walking in a fashion that in [his] ten years with police experience indicate[d] to [him] the possibility of someone concealing something in their pants, unless that party would happen to be disabled." Officer Murawski also testified that he did not observe any other group of three males or any other individuals wearing ponchos in the park. The juvenile court did not find that Officer Murawski's testimony should be disbelieved in any respect.

The officers drove the police car onto the lawn close to the juveniles and exited the vehicle. One of the officers ordered the juveniles to stop and put their hands in the air. D.F. stopped and put his hands in the air. One of the officers then observed what appeared to be a shotgun protruding from the waistband of the pants D.F. was wearing. The gun was partially concealed in D.F.'s left pant leg, with the barrel of the shotgun almost to his ankle and the stock of the shotgun high above his waist. D.F. was subsequently arrested for carrying a concealed weapon, a .12 gauge Winchester shotgun, in violation of section 18-12-105(1)(b), 8B C.R.S. (1986 & 1996 Supp.). The gun was unloaded, but D.F. had eight rounds of live ammunition in his pants pockets. One of the other two juveniles surrendered a pump-action BB rifle to the officers.

D.F.'s attorney filed a motion to suppress all evidence obtained after D.F. was stopped, claiming that the stop was unconstitutional because there was no articulable and specific basis in fact to suspect that criminal activity had taken place, was in progress, or was about to occur.

The juvenile court agreed, stating that the stop was not supported by reasonable suspicion and, consequently, was in violation of D.F.'s Fourth Amendment rights. On June 5, 1996, the juvenile court issued its order granting the motion to suppress. The prosecution filed this interlocutory appeal.

II.

We determine that the police officers were justified in making the investigatory stop and disarming the juveniles.

A.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. See People v. Greer, 860 P.2d 528, 530 (Colo.1993). However, absent probable cause to arrest, a police officer may stop a person for investigatory purposes under narrowly defined circumstances. See People v. Garcia, 789 P.2d 190, 191 (Colo.1990). Such a stop must be supported by the factual foundation required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

In Terry, the Supreme Court held that to justify a stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1880. Furthermore, the Terry Court established that "police may stop an individual for brief questioning and perform a protective search based upon a reasonable suspicion that the suspect is engaged in criminal activity and a reasonable belief that he is armed." United States v. Clipper, 973 F.2d 944, 946 (D.C.Cir.1992) (citing to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In Stone, we held that a police officer, having less than probable cause to arrest, may temporarily detain an individual for certain investigatory purposes, provided that the following conditions exist:

(1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose.

174 Colo. at 508-09, 485 P.2d at 497 (the three-prong Stone test); see § 16-3-103, 8A C.R.S. (1986). ²

This case concerns the first of the three conditions which must be satisfied to justify a Stone stop, ³ that an "officer must have 'an articulable and specific basis in fact' for suspecting that an individual" is committing, has committed, or is about to commit a criminal activity. People v. Contreras, 780 P.2d 552, 555 (Colo.1989) (quoting People v. Savage, 698 P.2d 1330, 1334 (Colo.1985)). To determine whether an investigatory stop was based on a reasonable and articulable suspicion, a court must take into consideration the facts and circumstances known to the officer at the time of the intrusion. See Greer, 860 P.2d at 530; see also Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880 (when judging the facts against an objective standard, the court must ask "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?").

The facts known to the officer at the time of the encounter, "taken together with rational inferences from these facts, must create a reasonable suspicion of criminal activity," in order to justify the intrusion into the individual's privacy caused by the investigatory stop. Greer, 860 P.2d at 530. The information contained in the tip, in addition to the corroborating observations made by the officers, must be considered together to determine whether, under the totality of the circumstances, grounds for an investigatory stop existed. See Contreras, 780 P.2d at 555.

Standing alone, an anonymous tip lacks the "indicia of reliability sufficient to establish reasonable suspicion." Garcia, 789 P.2d at 192. However, the anonymous tip together with corroborating observations by the officers "may provide a specific and articulable basis in fact to suspect that an individual is engaging in," has engaged in, or is about to engage in criminal activity. Id.

In the case before us, defense counsel argued to the juvenile court following the officer's testimony that the police must "corroborate the anonymous tip by viewing conduct that is criminal." The juvenile court apparently agreed. Citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the juvenile court here determined that the anonymous tip lacked reliability and the evidence must be suppressed. It determined that, because the tip merely contained easily obtained facts existing at the time the tip was given, rather than inside information predicting future actions of the defendant, it lacked reliability. The juvenile court's findings of fact included the following:

The police received a phone call from a source unknown. The caller stated that there were three males in the area and one was wearing a poncho and carrying a possible BB rifle. The officers responded to the area and noted three juveniles 12-13 years old walking in Harvey Park. One of the juveniles was wearing a brown poncho. The police officers drove their marked police car onto the lawn and exited the car. At that point, without further inquiry, the officers ordered the juveniles to stop. [D.F.] stopped and put his hands in the air. The other two juveniles continued walking. [D.F] put his hands up and turned around revealing...