People v. Davis, 76-083

• Citation: 39 Colo.App. 63,565 P.2d 1347
• Decision Date: 24 February 1977
• Docket Number: No. 76-083,76-083
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Earl DAVIS, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 1347

565 P.2d 1347

39 Colo.App. 63

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Earl DAVIS, Defendant-Appellant.

No. 76-083.

Colorado Court of Appeals, Div. I.

Feb. 24, 1977.

Rehearing Denied April 14, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

ENOCH, Judge.

Defendant William Earl Davis appeals from his conviction by a jury of two counts of aggravated robbery. We affirm.

On August 29, 1975, two soldiers hitchhiking in Colorado Springs were picked up by five persons in a car and driven to a park area where the soldier in the front seat was robbed at gunpoint and pistol-whipped by the driver, and the soldier in the back seat was robbed at knifepoint.

Detective Shull of the Colorado Springs police department subsequently received an anonymous telephone call implicating defendant in the robbery and beating. Shull's own investigation revealed that a mug shot of defendant on file matched the description, given to him by the victim, of the assailant with the gun. Also, a car matching the description of that given by the victim was found to be registered to defendant. Based on this information, Shull issued a pickup order on the afternoon of Sunday, August 31, 1975, for both defendant and his car.

Shortly after 5 p. m. on that same afternoon, Officers Finn and Manczur, while on patrol, observed a car parked in a service station lot with defendant in the driver's seat, another man in the front passenger seat, and a woman and baby in the back seat. Officer Finn was not positive, but it was his recollection that the service station was not open for business. At this time, these two officers had no knowledge of the pickup order or the offense which had occurred. Finn testified that he approached the car to talk with the occupants because he thought maybe they had car trouble.

He further testified that he asked defendant for his driver's license and car registration. Defendant answered that he did not have his license with him, but did state his name and did produce the registration card. Finn wrote down the driver's name and returned to his vehicle and radioed in the name and license number to the dispatcher. The dispatcher informed Finn of the pickup order on the car and defendant, and defendant and his front seat passenger were immediately arrested.

The next day, after one of the victims had identified defendant from a photo lineup, defendant was interrogated by Detective Shull, and at that time defendant made certain self-incriminating statements.

I.

Defendant asserts that his entire statement made after his arrest should have been suppressed because his initial arrest was illegal. This argument raises an important question as to the limits of the authority of a police officer to approach a person seated in the driver's seat of a stopped vehicle and seek identification from him when the officer does not have information constituting probable cause to arrest that person.

The right of an officer to stop a person, and even to conduct a pat-down search for weapons when that officer has a reasonable suspicion not amounting to probable cause that the person might be involved in criminal activity was recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In that case, after declaring that the reasonableness of a search or seizure was governed by a balancing of the need to search or seize against the invasion which the search or seizure entails, the court approved the pat-down search which had been conducted, even though it recognized that the physical seizure and search was a substantial intrusion on the sanctity of the person.

The Supreme Court expressly left open the question of the constitutional propriety of an investigative "seizure" upon less than probable cause for purposes of "detention" and/or interrogation. The court did observe, however, that not all personal intercourse between policemen and citizens involves a "seizure" of such citizens. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, supra, at fn. 16.

In Colorado, certain conditions under which an officer can legally detain a person for questioning in the absence of probable cause to arrest were announced in Stone v. People, 174 Colo. 504, 485 P.2d 495, as follows: (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.

Defendant cites Stone and the subsequent case of People v. McPherson, Colo., 550 P.2d 311, as determinative that his arrest was illegal because the officers did not have a reasonable suspicion that the defendant had committed or was about to commit a crime. If the reasons for the officers' approach to defendant's car had been based on an investigation of criminal activity, we might agree. However, that is not the case presented; rather, the evidence demonstrates that the officers approached the car to ascertain if the occupants were having car trouble.

It is clear that police officers perform many functions other than investigation of crime, such as controlling traffic, investigating accidents, rendering first aid to sick or injured persons, and aiding motorists whose cars are disabled. Interrogations arising out of such functions do not meet the first requirement of the Stone test, because there is no reasonable suspicion of criminal activity; nevertheless, it would be unreasonable to assert that the police cannot make reasonable inquiries of persons whom they encounter without suspicion of criminal activity.

The court in Stone expressly recognized that the rule enunciated therein was not exclusive, and that additional rules would be required as different fact situations were presented.

The first condition to be met in situations other than those which concern investigation of criminal activity is whether there is a bona fide reason, related to functions within the scope of the police officer's authority and duties, for the encounter of a party. See People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562. De Bour recognizes that contacts not based on suspicion of criminal activity are permissible when there is an articulable reason for the encounter. We find that decision persuasive, especially since De Bour arose in a jurisdiction which had previously promulgated the same standards as those adopted in Stone, supra, which cited, with approval, People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32.

To justify a contact, the officer must be able to point to specific and articulable facts which warranted the initial intrusion, and these facts are to be judged against an objective standard: Would the facts available to the officer at the moment of the encounter justify a man of reasonable caution in believing that the action taken was appropriate. Terry v. Ohio, supra.

Coupled with the finding that there was a valid reason for encountering a party, the specific purpose of the detention, and its character, must be reasonable in view of the reason for the encounter. In these latter two respects, the test is the same as that announced in Stone, supra. If all of these conditions are met, then there has been no unlawful violation of a person's Fourth Amendment rights and the...