People v. Hazelhurst

• Decision Date: 02 May 1983
• Docket Number: Nos. 82SA581 and 82SA583,s. 82SA581 and 82SA583
• Citation: 662 P.2d 1081
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary C. HAZELHURST and James Monroe Jefferson, III, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1081

662 P.2d 1081

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary C. HAZELHURST and James Monroe Jefferson, III Defendants-Appellees.

Nos. 82SA581 and 82SA583.

Supreme Court of Colorado En Banc.

May 2, 1983.

Warwick Downing, Dist. Atty., Cortez, for plaintiff-appellant.

Michael E. McLachlan, Durango, for defendant-appellee, Gary C. Hazelhurst.

Timothy A. Patalan, Durango, for defendant-appellee, James Monroe Jefferson, III.

ERICKSON, Justice.

This interlocutory appeal was taken by the prosecution pursuant to C.A.R. 4.1. The prosecution seeks reversal of an order of the district court suppressing evidence obtained as a result of an investigatory stop. We reverse the order of suppression in part, affirm in part, and remand for further proceedings consistent with this opinion.

On April 6, 1982, the sheriff's office received information from backpackers about the cultivation of marijuana in a remote and largely inaccessible area in Montezuma County. An investigation located three areas at the bottom of Yellow Jacket Canyon where marijuana was being farmed. The farms were on Bureau of Land Management land approximately a mile and a half from the end of a four-wheel-drive road. Full investigation of the area and the extent of the farming operation was made by helicopter on April 17, 1982, after the reports of the backpackers were confirmed by an on-site investigation of the area by the sheriff's office on April 8, 1982, and April 16, 1982.

On April 16, 1982, the sheriff's office discovered a 1951 Dodge pickup truck on the north rim of Yellow Jacket Canyon and the truck registration was traced to Gary Hazelhurst, who lived in Clifton, Colorado, a suburb of Grand Junction. Boot tracks were followed from the truck down into the canyon and to one of the marijuana farms. Investigators also found various tools, hoses, and pumps, as well as other equipment that was used to farm the marijuana. All of the material was under a tarpaulin that was painted to provide camouflage for the cache. ¹ Sleeping bags, food, and a backpack were also discovered under the tarpaulin. Many items in the cache had markings indicating that they had been purchased in Grand Junction. A search of the backpack found in the cache produced an airline tag on which the name "Jeff Jefferson" was printed.

On April 17, 1982, when the helicopter investigation was conducted, the truck had been moved, part of the material observed at the cache on April 8 had been removed, and fresh tire tracks were observed. As a result of the investigation, officers were sent to the site where the four-wheel-drive road entered Yellow Jacket Canyon to look for similar tracks. When the officers arrived, they saw tire tracks similar to those described by the investigating officers. The tracks were fresh and had a knobby-type tread. Not long after the officers observed the tracks, a new Toyota pickup with a camper and two occupants came up the four-wheel-drive road. The officers stopped the truck. The officers noted that the tires on the Toyota were of the knobby type and matched the tracks leading down into the canyon. A temporary license bearing the name Gary Hazelhurst was in the rear window of the truck. Hazelhurst acknowledged that the truck was his. James Jefferson, a passenger in the truck, also identified himself and said that he lived in Grand Junction. Hazelhurst was asked if he had seen anyone in the canyon. He told the officers that he had seen a couple of people on horseback. He also told the officers that he was in the canyon looking for Indian ruins.

The officers radioed the chief investigating officer and asked if he desired to talk to Hazelhurst. He replied that he did. He instructed the officers "to keep both of those people there." The officers asked Hazelhurst if he would follow them to their police cars because the investigator wanted to talk to him. The officers did not ask the defendants to get out of the truck and, when no objection to the request to wait was made, the officers returned to their cars. Hazelhurst followed the police officers a short distance to the place where the officers had parked their cars and waited approximately twenty to thirty minutes for the chief investigator from the sheriff's office to arrive.

When the chief investigator arrived, he noted that some of the items in the truck such as planting boxes and farming equipment matched the items that were in the cache when it was initially discovered. A formal arrest was then made. Thereafter, both Hazelhurst and Jefferson made damaging admissions after having been given their Miranda warnings. All of the evidence seized and the defendants' inculpatory statements were suppressed by the district court as the product of an arrest without probable cause and as the fruit of the poisonous tree. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

The police charged Gary Charles Hazelhurst and James Monroe Jefferson III with unlawfully and feloniously possessing and cultivating more than one ounce of marijuana in violation of section 18-18-106, C.R.S.1973 (1982 Supp.). After a preliminary hearing, the defendants were bound over to the district court for trial. Thereafter, a motion to suppress was made and after an evidentiary hearing the evidence seized from and statements made by the defendants were suppressed.

I. The Investigatory Stop

The concatenation of the facts and circumstances, if not sufficient to establish probable cause, provide the foundation and a basis for an investigatory stop. In determining whether there was a basis for an investigatory stop, it is necessary to determine whether the totality of the circumstances--the whole picture--provides the officers with a particularized and objective basis for suspecting that a person or persons are engaged in criminal activity. The analysis must include objective observations, information obtained by fellow police officers, and consideration of the modes or pattern of operation of certain kinds of law breakers. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A trained police officer is qualified to draw inferences and make deductions that might elude an untrained person. The officer's assessment must center on whether there is an articulable suspicion that a particular person is engaged in wrongdoing. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The touchstone supporting police action is the specificity of the information upon which they act.

In Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), we upheld the validity of investigatory stops in Colorado. Stone stops are valid when: (1) the police officers have a reasonable suspicion that the person stopped has committed, or is about to commit, a crime; (2) the purpose of the detention is reasonable; and (3) the character of the detention is reasonable in light of its purpose. 174 Colo. at 509, 485 P.2d at 497. See also People v. Johnson, 199 Colo. 68, 605 P.2d 46 (1980); People v. Tooker, 198 Colo. 496, 601 P.2d 1388 (1979); People v. Severson, 39 Colo.App. 95, 561 P.2d 373 (1977).

The investigatory stop by the deputy sheriff and the state trooper was based on information provided to them by fellow officers. We have held in warrantless arrest situations that an arresting officer who does not personally know facts that provide probable cause may still effect a warrantless arrest if he "acts upon the direction or as a result of a communication from a fellow officer" and "the police, as a whole," know facts which rise to the level of probable cause. People v. Baca, 198 Colo. 399, 401, 600 P.2d 770, 771 (1979). See also People v. Henry, 631 P.2d 1122 (Colo.1981); People v. Hamilton, 188 Colo. 250, 533 P.2d 919 (1975). In People v. Nanes, 174 Colo. 294, 300-01, 483 P.2d 958, 962 (1971), we said:

"It is not necessary for the arresting officer to know of the reliability of the informer or to be himself, in possession of information sufficient to constitute probable cause, provided he acts upon the direction or as a result of communication with a brother officer or that of another police department and provided the police as a whole are in possession of information sufficient to constitute probable cause to make the arrest."

The fellow officer rule is also applicable in determining whether the police have a reasonable suspicion that the person detained pursuant to a Stone stop has committed or is about to commit a crime.

The prosecution has conceded that the officers making the investigatory stop did not have a reasonable suspicion that Hazelhurst had committed a crime. The officers making the stop, however, were relying on information provided to them by the investigating officers. The lead investigator had evidence which supported a belief that Gary Hazelhurst and "Jeff" Jefferson were involved in cultivating marijuana and had advised one of the officers making the stop to look for Hazelhurst who might be driving an old pickup.

The "police as a whole" knew that two persons named Hazelhurst and Jefferson were involved in some manner in the clandestine farming of marijuana. People v. Baca, supra. The Dodge pickup truck had been traced to Hazelhurst. They also knew that Hazelhurst lived near Grand Junction, where a number of the farming tools and implements in the cache had been purchased. Jefferson was identified from a tag left in a backpack at the farm sites. Officers at the farm sites were aware that the Dodge truck had been moved recently, which is significant because of the remote location of the farm sites and the small number of people in the vicinity. The officers making the stop had identified Hazelhurst and Jefferson and had been told previously that Hazelhurst was a suspect in the case, although no information had been supplied linking Jefferson to the alleged crimes. One officer had been...